author: Birdsong, Chief Judge.

text:
    77296.
    HORNEY v. LAWRENCE et al.
    (375 SE2d 629)
   Birdsong, Chief Judge.

This is an appeal of a medical malpractice suit in which the jury returned a verdict for both appellees against appellant, Dr. John Horney.

During the course of a gastroscopy performed by appellant, the patient, appellee Arthur Lawrence complained several times of pain and/or burning in his hand. Shortly after completion of the procedure, the assisting nurse discovered a significant swelling on appellee Arthur Lawrence’s hand. She concluded this swelling was caused by the escape of Valium (extravastation of Valium) from the I.V. needle into the tissue of the hand. Hot compresses were applied to the hand. During the procedure, appellant had difficulty in sedating the appellee. Appellant administered 30 milligrams of Valium, and at one point informed appellee that the latter had received enough medication “to knock out a fat man or a 200 pound man.” Normally, approximately 15 milligrams of Valium is required for this type of procedure. When Valium extravastation occurs in the back of the hand, it can cause pain and swelling and can cause local tissue to die. After being discharged from the hospital, appellee Arthur Lawrence continued to experience certain complications, including pain, in his hand. Ultimately, he had surgery on the hand; however, this procedure only partially corrected his injury. Held:

1. Appellant, in his first enumeration of error, alleges the trial court erred by allowing into evidence an expert’s opinion in response to a hypothetical question containing facts not in evidence. An expert witness is not permitted to give his opinion in answer to a hypothetical question which is based on facts that have not been “placed in evidence by other witnesses. ...” Baldwin v. Walker, 143 Ga. App. 382 (1) (238 SE2d 695), cert. den.; see Georgia Power Co. v. Crutch-field, 125 Ga. App. 488 (3) (188 SE2d 140). However, “[r]eliance can be made upon circumstantial evidence to establish a basis for framing a hypothetical question,” and “[t]he question of whether the circumstances were sufficiently proven to establish the fact contained in the hypothetical question is an issue for the trier of fact.” Stoneridge Properties v. Kuper, 178 Ga. App. 409, 413 (343 SE2d 424). Circumstantial evidence exists in the transcript from which the facts in question can be inferred.

2. Appellant’s second enumerated error is that the trial court erred by allowing the case to go to the jury when there was no expert testimony establishing negligence on the part of the appellant. In a medical malpractice case, “the general rule is that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case. ‘The . . . jury must have a standard measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill.’ ” Howell v. Jackson, 65 Ga. App. 422 (1) (16 SE2d 45); see Connell v. Lane, 183 Ga. App. 871, 872 (360 SE2d 433); Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791).

Appellant made an in judicio admission that the standard of care required when injecting Valium into the back of a hand includes observing the vein “every time you inject [it].” From this testimony and other circumstantial evidence of record, it was adequately established that the proper method for the injection of Valium into the veins located in the back of a patient’s hand at least includes the visual inspection of the injection site at the time of the injection. Moreover, as noted above, circumstantial evidence exists from which the jury could reasonably infer that the appellant did not visually inspect or observe the injection site at all at the time of Valium injection. Accordingly, we find this assignment of error to be without merit. Assuming arguendo that error occurred by not presenting expert testimony as to the exact type of inspection that would be required, we find such error would be harmless in view of the posture of the evidence in this case. OCGA § 9-11-61.

3. Appellant’s third enumeration of error contends the trial court erred by allowing the case to go to the jury when there was no expert testimony establishing that any of appellant’s alleged negligent acts proximately caused appellee’s injuries. We disagree. “ ‘Questions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.’ ” Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 404 (349 SE2d 368), citing Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25).

Decided November 3, 1988 —

Rehearing denied November 22, 1988.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Mark E. Bergeson, for appellant.

Malone & Percilla, Del Percilla, Jr., James G. Stewart, for appellees.

There exists relevant evidence, including but not limited to the effect of Valium on skin tissue, the amount of Valium injected into appellee, the swelling of appellee’s hand, and the subsequent condition of the hand, from which the jury reasonably could find that the negligence of appellant proximately caused appellee Lawrence’s injuries. Determining witness credibility and weighing the evidence are not appellate court functions. See generally OCGA § 24-9-80; Jones v. City of Atlanta, 257 Ga. 727, 729 (363 SE2d 254). We will not usurp the functions of the jury as to these matters, suffice it to say there exists adequate evidence in the trial transcript to support the jury’s obvious determination of the existence of probable cause.

We find the case of Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113 (243 SE2d 269), cited by appellant, to be distinguishable from the facts of this case.

4. In the appellant’s final enumeration of error, he states the trial court erred in denying his motion for directed verdict. It was not, as contended, error for the trial court to refuse to direct a verdict for the appellant. Based on the evidence of record the jury reasonably could have concluded that the negligence of the appellant was the proximate cause of appellee’s hand injuries. See Campbell v. Forsyth, 187 Ga. App. 352, 355 (370 SE2d 207). Clearly, the posture of the evidence in this case, together with all reasonable deductions therefrom, did not demand a verdict for appellant. OCGA § 9-11-50 (a).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge. Sognier, Judge,

license: Public Domain

text:
    77737.
    ORR v. THE STATE.
    (375 SE2d 669)
   Deen, Presiding Judge.

Appellant Orr and a co-defendant were found by police officers in a wooded area less than 100 feet from a house where a burglar alarm had sounded only minutes earlier. Nothing appeared to be missing from the house, but the front door had been kicked in and the rooms ransacked.

The co-defendant admitted that he and Orr had burglarized the house; Orr, however, denied that he had had any part in the affair and essentially averred (although in several mutually inconsistent statements) that he had merely happened to accompany the co-defendant to the area but had himself been en route to a nearby hardware store, and also that he was taking some gold chains to pawn. No chains were found in his possession.

A Floyd County jury found Orr guilty, and, after denial of his motion for new trial, he was granted an out-of-time appeal. He enumerates as error (1) the prosecution’s impermissibly striking black jurors on the basis of race alone; (2) the finding of “guilty” on the sole basis of co-defendant’s testimony; and (3) the court’s failure to declare a mistrial when a juror stated that her own verdict had been “not guilty.” Held:

1. The record shows that of the forty-two potential jurors impaneled for voir dire, three were black. One of these three was selected as a juror, and two were struck by the State. When challenged on the ground of the holding in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the prosecutor stated that he had struck one venireman because of her similarity in age to the 24-year-old black defendant and the other because she had a criminal record. The trial court determined that, even with the aid of the legal presumption favoring a finding of discrimination in the exercise of peremptory challenges, the defendant had produced no evidence of racial discrimination beyond the bare fact that two blacks had been struck; and that he had therefore failed to carry his burden of proving that there had been purposeful discrimination against the defendant through manipulation of the venire. Batson, supra at 1722, 1723. Moreover, the record reveals that defense counsel did not cross-examine the prosecuting attorney. Batson, supra; Powell v. State, 187 Ga. App. 878 (372 SE2d 234) (1988). This enumeration is without merit.

2. Appellant’s allegation concerning the impropriety of basing a conviction solely on the testimony of a co-defendant is also without merit. The trial transcript reveals that the conviction was based upon an abundance of evidence other than that provided by the co-defendant. The testimony of investigating officers and of the owner of the burglarized house was consistent with the findings at the scene of the crime, and the testimony of each of these witnesses was also consistent with the testimony of the others, as well as with that of the co-defendant. Moreover, Orr’s own testimony was filled with inconsistencies as to why he was where he was when discovered by investigating officers, and where he had been previously. Additionally, as noted supra, the gold chains he was ostensibly en route to pawn were never found; nor did he offer a satisfactory explanation for why he had “changed his mind” and “returned to” the scene of the burglary.

3. Appellant’s third assignment of error does not accurately represent the situation to which it refers. During the routine polling of the jury which followed publication of the verdict, one juror replied “No” to the question, “Was that your verdict?” The court ordered the jurors back to the jury room, but the juror who had said “No” interrupted to say, “But we changed, I mean, we’ve — we’ve gone through it so many times.” The court then asked, “Well, the question to you is this, was the verdict that was published your verdict?” The juror replied, “That was, yes, sir.” The court then asked, “Is that now your verdict?”, and the juror answered “Yes,” whereupon the court made a few explanatory remarks to those present in the courtroom and resumed normal proceedings. This enumeration is patently without merit.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

Sognier, Judge,

concurring specially.

I concur in the judgment of the majority. I write specially to amplify my reasons for concurring in the majority’s rejection of appellant’s enumeration of error concerning corroboration.

The fact that the testimony of police officers and others was consistent with that of the co-defendant as to the details of the break-in is not sufficient. A distinction must be made between evidence which tends to prove the truth of the accomplice’s general testimony and that which tends to prove the identity and participation of the accused. West v. State, 232 Ga. 861, 865 (209 SE2d 195) (1974). “Accordingly, under [OCGA § 24-4-8], evidence must be presented at trial which corroborates the accomplice’s testimony both as to the history of the felony and as to the identification of the accused as a participant in the crime, and, as regards the latter corroboration, the evidence must originate from an independent source.” Mulligan v. State, 245 Ga. 266, 269 (264 SE2d 204) (1980).

In this case, much of the corroborative evidence went to the truth of the accomplice’s general testimony. There was some other evidence, however, corroborating the accomplice’s testimony that appellant participated in the commission of the crime. Police officers testified that appellant was found on the victim’s property shortly after the break-in occurred. In addition, appellant testified that he was in that location because he was on his way to pawn some gold chains, but no gold chains were found on his person. The issue presented in appellant’s enumeration is whether that is sufficient corroboration of the accomplice’s testimony implicating him.

In reviewing the question of whether sufficient corroboration exists of an accomplice’s testimony implicating the accused, it is not necessary that the corroborative evidence itself be sufficient to warrant a verdict. Further, conduct on the part of the accused may act to corroborate the testimony of the accomplice. Drake v. State, 241 Ga. 583 (247 SE2d 57) (1978). In Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976), evidence that the accused was seen in a disabled vehicle 12 miles from the scene of the crime and about 100 miles from his home was sufficient corroboration of accomplice’s testimony. In that case, “[appellant’s own] testimony seeking to explain the evidence of corroboration [why he was there] could not dispel that evidence; it merely made a question for the jury to decide. [Cit.]” Id. at 826. “ ‘The sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. [Cit.]’ [Cit.] Contrary to appellant’s; assertions, ‘[t]he necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. [Cit.]’ [Cit.]” Berry v. State, 248 Ga. 430, 432 (283 SE2d 888) (1981).

Decided November 22, 1988.

Floyd H. Farless, for appellant.

Stephen F. Lanier, District Attorney, for appellee.

I find the evidence in this record implicating appellant sufficient, although slight, to corroborate the accomplice’s testimony.

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


author: Benham, Judge.

text:
    76517.
    PECK v. ROLLINS PROTECTIVE SERVICES, INC.
    (375 SE2d 494)
   Benham, Judge.

In 1973, appellant Peck had her existing home security system supplemented by appellee Rollins Protective Services. Rollins installed an automatic dialer, programmed to call appellee should the security system be activated, and agreed to maintain the system in consideration of appellant’s payment of a monthly charge. In September 1981, appellant’s home was burglarized. An audible, on-site alarm was activated by the unauthorized entry, but the automatic dialer did not call Rollins. Appellant filed suit against appellee, alleging fraud, intentional violation of the Fair Business Practices Act, negligent installation, and breach of warranty. The trial court granted appellee’s motion for summary judgment, which prompted this appeal.

Appellee submitted several affidavits as well as appellant’s deposition in support of its motion for summary judgment. On deposition, appellant testified that she believed the automatic dialing feature of appellee’s system was “the key” to a greater feeling of security, and that appellee’s salesperson had told her the system was “infallible” and “foolproof.” She stated that she had two telephone lines in her home. Her phone system, called a rotary phone line system, rolled incoming calls from the first line over to the second line when the primary line was busy. Approximately one year before the burglary, appellant attached an answering machine to her telephone system and admitted that, in order for the answering machine to record all incoming phone calls, she attached it to the second line and took the first line off the hook, thereby rolling over all incoming calls to the second line,and the answering machine. According to the affidavits of appellee’s agents, the automatic dialer was attached to the first line and, when activated, was unable to complete a call as long as the line to which it was attached remained busy. Appellee’s agents averred that they discovered appellant’s phone setup in a post-burglary investigation and remedied the situation by putting the answering machine on the first incoming line and the automatic dialer and a line seizure device on the second line. Appellant testified that she believed she had told appellee’s monthly servicemen prior to the burglary of the existence of the two rotary lines servicing her home, inasmuch as she had told them she had a system in which a second phone rang if the first were busy. She concluded that the servicemen “were well aware of [her system]” because when they would ask to see her phone connection, she would send them to the attic, where the phone was connected. She also testified that she was sure she had informed appellee’s service personnel prior to the burglary that she took one telephone off the hook in order to activate the answering machine. While she could not recall the name of the person to whom she gave this information, she testified it was one of the many different servicemen who visited her home. Appellant also testified on deposition that she was never informed, verbally or in writing, that the automatic dialer could be affected by the type of phone system she had. She recalled that one month prior to the burglary while she was away from home, the audible alarm system had been activated but Rollins had never been called by the automatic dialer. The Rollins repairman who inspected the system after that incident informed her that everything was fine.

Appellee presented the affidavit of the serviceman who called on appellant’s home on August 18, 1981. He did not recall appellant relating to him her practice of taking one phone off the hook in order to operate her answering machine, and averred that her automatic dialer was performing as it was designed to do when he departed the premises that day. Appellee’s post-burglary investigators averred that the system performed as it was designed to perform when they tested it one month after the burglary. Two of appellee’s affiants averred that the system installed at appellant’s home was not designed to operate on a rotary phone line system.

1. “OCGA § 9-11-56 (c) ... allows summary judgment only where there is no genuine issue as to any material fact, and the evidence shows that the movant is entitled to judgment as a matter of law. Furthermore, ‘on motion for summary judgment by a party on whom the burden of proof does not lie on the trial of the case, all the evidence must be construed against the movant and in favor of the party opposing the motion.’ [Cits.]” Pugh v. Frank Jackson Lincoln-Mercury, 165 Ga. App. 292 (300 SE2d 227) (1983). Upon application of the standard to the facts of the case at bar, we find ourselves in agreement with appellant’s conclusion that summary judgment based on the record as it presently exists was inappropriate. There is undisputed evidence that the installed automatic dialer system would not operate with a rotary phone system, yet there is no evidence that the rotary phone system was not in operation when appellee’s agents installed the automatic dialer. If the rotary phone system were there and appellee installed an automatic dialer not designed to perform with a rotary phone system, appellee has not met its burden of proof as a defendant movant for summary judgment. In addition, appellant testified that she told appellee’s agents of her rotary phone system and her particular use of her answering machine. The affidavit of one repairman (when it was undisputed that a number of personnel had serviced appellant’s system) stating that he could not recall being told by appellant of her answering machine usage does not refute appellant’s testimony that appellee’s agents had been made aware of her practice and of the existence of the rotary phone system. So long as there remain unanswered questions with regard to appellee’s knowledge, summary judgment for appellee is not appropriate.

2. “Rollins successfully argued at the trial level that [appellant] had no cause of action based on the contract itself for any amount exceeding $250 because of a clause in the . . . agreement limiting Rollins’ liability to $250 in case of loss or damage resulting from the failure of operation, defective operation, or the improper installation or servicing of the system. However, [appellant has] alleged that Rollins acted willfully and wantonly in failing to fully inform [appellant] of the nature of the protection afforded by the system that was [installed] and that Rollins knew the system was inadequate for [appellant’s] needs. [Appellant] further claim [s] that that action on the part of Rollins demonstrated a wilful disregard for the safety of persons and property. A clause in a contract limiting one’s liability for negligent acts does not serve to limit one’s liability for wilful and wanton conduct. [Cit.] . . . Accordingly, the trial court erred in granting Rollins’ motion for summary judgment with regard to the foregoing issue.” Lenny’s, Inc. v. Allied Sign Erectors, 170 Ga. App. 706 (2) (318 SE2d 140) (1984).

Decided November 9, 1988 —

Rehearing denied November 23, 1988.

Robert A. Falanga, Jesse E. Barrow III, for appellant.

Decker & Hallman, James F. Perz, Richard P. Decker, W. Winston Briggs, for appellee.

Judgment reversed.

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


author: Beasley, Judge.

text:
    76908.
    CRUMBLEY v. THE STATE.
    (375 SE2d 482)
   Beasley, Judge.

Defendant was indicted and convicted of selling cocaine, OCGA § 16-13-30 (b). He appeals from the denial of his motion for new trial and assigns as error: denial of his pretrial motion to suppress identification testimony and the denial of his motion for a directed verdict on the same ground; refusal to direct the State to divulge the identity of a confidential informant; refusal to conduct a post-trial evidentiary hearing on whether the informant’s identity should have been revealed.

1. Defendant’s conviction was based on his sale of cocaine to an undercover GBI agent. He contends that the agent’s trial identification of him was flawed because of suggestive pretrial identification procedures. About five months after the sale took place, the agent was shown two photographs, either one of defendant and one of another person or two different poses of defendant. The agent testified as to the former and his superior gave the latter version. Defendant was identified and contends that this viewing amounts to a one-on-one showup and tainted his identification at trial.

This procedure was followed as part of the routine intra-department investigation. This court has applied the Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972), and Manson v. Brathwaite, 432 U. S. 98 (97 SC 2243, 53 LE2d 140) (1977), test to similar factual situations. See Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425) (1987); Bradley v. State, 152 Ga. App. 902 (264 SE2d 332) (1980).

We therefore consider “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Id. at 903. The focus is on the second prong of Neil, supra, whether there was a very substantial likelihood of irreparable misidentification. Applying the five factors, Woody v. State, 166 Ga. App. 666, 667 (1) (305 SE2d 365) (1983), we conclude: 1) the agent-witness had ample opportunity to observe defendant, ten minutes at the scene plus “seven or eight” times before then; 2) the agent paid attention to defendant’s appearance and focused on defendant; 3) although the description did not match age, height and weight, defendant actually being older, taller and lighter, the agent testified that he would still describe defendant as he did in the absence of actual means of measure; 4) the agent was positive and certain in his identification of defendant, both when shown the pictures and at trial; 5) five months is a considerable lapse of time but not of such length as to undermine identification. There were sufficient indicia of reliability. Killens, supra; Evans v. State, 177 Ga. App. 820, 821 (1) (a) (341 SE2d 483) (1986).

2. The GBI agent was introduced to defendant by a “confidential informant.” Defendant sought to have the informant’s identity revealed but the trial court refused to compel it. Defendant contends this was error especially since he filed a motion under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

Where a motion to disclose is paired with a Brady motion, the trial judge must “(1) conduct a hearing on the Brady motion as to whether the State possesses information material to the guilt or innocence of the defendant, . . . and (2) if an informer’s identity is required under the Brady standard, then the trial court must weigh the materiality of the informer’s identity to the defense against the [S]tate’s privilege not to disclose the identity of the informer.” State v. Martin, 156 Ga. App. 554, 555 (275 SE2d 129) (1980) [physical precedent, paraphrasing Thornton v. State, 238 Ga. 160, 165 (2) (231 SE2d 729) (1977)]. “The appellant had the burden of showing how his case has been materially prejudiced” by the failure to disclose information. Tribble v. State, 248 Ga. 274 (280 SE2d 352) (1981); Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30) (1974). The State responded and opened its files, defendant expressed satisfaction with discovery at the beginning of the trial, and he made no request for a hearing even after denial of his objection to the failure to disclose the informant’s identity. Hubbard v. State, 173 Ga. App. 127, 128 (6) (325 SE2d 799) (1984).

There are three types of informants: tipsters, witnesses and participants. The identity of a tipster is absolutely privileged. If the informer is a witness or a participant the trial court must weigh the materiality, to the defense, of the informer’s identity against the State’s privilege of protecting the identity of informers. Thornton, supra; Thornton v. State, 239 Ga. 693, 694 (238 SE2d 376) (1977). “Where a person merely takes an undercover police officer to a location and identifies, or introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and not a ‘decoy’ and a disclosure of his name ... to the defendant is not required as a matter of law . . . but rests in the discretion of the trial judge.” Carter v. State, 165 Ga. App. 427 (301 SE2d 658) (1983). Accord Statiras v. State, 170 Ga. App. 739, 740 (318 SE2d 156) (1984).

Decided October 27, 1988 —

Rehearing denied November 23, 1988.

Garrett & Johnson, Peter D. Johnson, for appellant.

J. Lane Johnston, District Attorney, R. J. Martin, Assistant District Attorney, for appellee.

“ . . . Brady does not establish an inflexible principle that requires the disclosure of informants’ identities or of all evidence, but only that which is ‘favorable to a defendant if the evidence is material to guilt or punishment.’ ” Bennett v. State, 153 Ga. App. 21, 27 (4) (264 SE2d 516) (1980). Nothing shows that the undisclosed informer’s testimony would have been favorable to defendant. Henderson v. State, 162 Ga. App. 320, 322 (2) (292 SE2d 77) (1982); State v. Martin, supra.

The absence of an abuse of discretion yields no reversal.

Judgment affirmed.

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


text:
    77131.
    STEPHENS v. THE STATE.
    (375 SE2d 886)
   Benham, Judge.

After a bench trial on his indictment for aggravated assault with intent to rape, the trial court found that appellant was guilty but mentally ill. Appellant moved for a new trial and the trial court denied his motion. He appeals from that denial, contending that the State did not prove he assaulted the victim with the intent to rape her. Finding the evidence to be sufficient to support the conviction and denial of new trial, we affirm the judgment.

The victim testified that on the date of the incident, she had stopped in the ladies’ rest room of her local bank. When she walked in, she looked in the mirror and noticed there was a pair of tennis shoes in the third stall of the five stalls in the room. She assumed the stall was occupied by a female worker who had worn jeans and tennis shoes to work. She entered the first stall, sat down, and had pulled her underwear and pants down when she noticed a left hand with a brown work glove reaching under her stall. She thought it was a maintenance man who had not put up a sign indicating his presence. When she looked down, the hand had disappeared and a man came over the top of the stall, knocked her off the toilet, held her by the shoulders, and wrestled her to the floor between the toilet and the wall. Appellant pulled her onto the floor on her back, and lay on top of her between her legs, with her underwear and pants still pulled down. He put his hand over her mouth to silence her screams. The victim further testified that she was wearing three rings, three bracelets, a gold watch, three gold chains, and a long rope chain studded with diamonds and gold nuggets, but that her assailant made no reference to and no attempt to take any of those items. As she struggled to get away from appellant, he jabbed at her eyes and face with an object resembling a pencil or a pen. They wrestled on the floor for a few minutes, with the victim screaming for help; appellant then managed to pull the stall door open, back out of the stall, and escape. He was later apprehended.

Decided November 23, 1988.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Assistant District Attorneys, for appellee.

Appellant testified and admitted that he had attacked his victim in the rest room stall, but contended that he did not assault her with the intent to rape, because he “had just come out of prison for rape.” He said he intended to rob his victim because he was frustrated about not being able to find employment.

Whether appellant had the requisite intent to commit rape was a matter for the trial court, as factfinder, to determine. Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209) (1980). Witness credibility is also a matter left to the factfinder. See Brown v. State, 176 Ga. App. 692 (1) (337 SE2d 446) (1985). The trial court apparently chose to believe the victim’s testimony, which supported the State’s position on the requisite intent issue. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant committed aggravated assault with intent to rape his victim. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Middlebrooks v. State, 156 Ga. App. 319 (1) (274 SE2d 643) (1980).

Judgment affirmed.

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


text:
    76454.
    DENNY et al. v. NUTT.
    (375 SE2d 878)
   Benham, Judge.

We granted this interlocutory appeal to review the trial court’s grant of partial summary judgment to appellee, which prevents appellants from pursuing their claim for money damages in their real estate sales contract action.

Appellants Mr. and Mrs. Denny contracted to buy a home in Rockdale County from appellee Nutt. The sales contract provided that the Dennys would procure financing at 9 percent per annum, and they did procure a commitment for such financing. However, Nutt refused to consummate the sale, and the Dennys sued him for specific performance and for money damages for breach of contract. The breach of contract damages they seek to recover are fees paid to the mortgage company to procure the loan commitment, lost time from work, moving expenses, and the amount they would have to pay in excess of the 9 percent interest rate when and if the loan closes. The trial court granted partial judgment to appellee as to those items, and this interlocutory appeal followed.

1. Appellants contend that the trial court erred in disallowing damages for loan application costs, moving expenses, and loss of time from work. “It has long been the rule that the measure of damages for breach of a contract to sell land is the difference between the contract price and the fair market value of the land at the time of the breach. [Cits.]” Quigley v. Jones, 255 Ga. 33 (334 SE2d 664) (1985), affirming Quigley v. Jones, 174 Ga. App. 787 (332 SE2d 7) (1985). In Quigley, the trial court specifically denied recovery for utility bills, insurance coverage, ad valorem taxes, repair and maintenance costs, and loss of use of net sales proceeds, and both appellate courts upheld that ruling. The items of damage appellants seek to recover, while not identical to those sought and rejected in Quigley, are of the same kind and character, and so we hold that “in the absence of a clause in the parties’ contract expressly authorizing such recovery,” there can be no recovery of those damages for breach of a real estate sales contract. Quigley, 255 Ga. at 34. See also Dept. of Transp. v. Arapaho Constr. Co., 180 Ga. App. 341 (5) (349 SE2d 196) (1986).

2. Appellants also enumerate as error the trial court’s grant of summary judgment to Nutt on the issue of increased interest costs, relying on this court’s decision in Executive Constr. v. Geduldig, 170 Ga. App. 560 (317 SE2d 564) (1984), wherein the plaintiff was allowed to recover for increased interest costs he was required to pay due to the builder’s failure to complete construction within the time specified in the contract. Appellants’ brief cites numerous cases from foreign jurisdictions which also favor the granting of damages for increased interest rates. We do not find the cited authorities to be persuasive. The general rule applicable here is that “[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach [i.e., general damages] and such as the parties contemplated, when the contract was made, as the probable result of its breach [i.e., consequential damages]. [Cits.]” Quigley v. Jones, supra, 255 Ga. 33. Executive Constr., supra, was decided in accordance with the general rule but is distinguished from the case before us, inasmuch as in Executive Constr., the plaintiff “produced evidence that the interest rate for loans in July when the contract should have been completed was one-half percentage point lower than in October when the loan was closed . . . [and showed that it] would result in an increased cost of more than $16,000. There was also evidence from [the plaintiff] showing that his concern regarding rising interest rates was communicated to [the defendants] during the negotiation of the contract. It appears, therefore, that . . . such damages were within the contemplation of the parties at the time the contract was made.” Id., Division 1. In other words, the plaintiff showed that the damages he sought to recover were consequential damages contemplated by the parties when the contract was made. We have no such evidence in the record before us to support appellants’ contention that they should be allowed to recover damages for the increase between the 9 percent interest rate specified in the contract and “the rate they will ultimately have to pay if the trial court grants specific performance.” The contract here does make reference to the fact that appellants were to obtain a 9 percent loan, but there is no showing that the parties intended for damages to be awarded if the contract did not close and appellants were therefore required to obtain another loan at a higher interest rate. Although appellants claim in their brief that “the evidence will show that appellee was warned before appellants’ commitment expired that his refusal to close would mean greatly increased interest rates for appellants,” they either failed to produce such evidence below or failed to include it in the record on appeal, since we do not have it before us. It is the duty of the party asserting error to show it by the record, and assertions of evidence in briefs cannot satisfy this duty. York v. Miller, 168 Ga. App. 849 (310 SE2d 577) (1983). Since appellants have not satisfied their duty here, we must affirm the trial court’s decision. Id.

Decided November 14, 1988 —

Rehearing denied November 28, 1988

Gary C. Harris, for appellants.

King, Taylor & Stovall, James F. Stovall III, for appellee.

Judgment affirmed.

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


text:
    76850, 76877.
    BOULWARE v. THE STATE (two cases).
    (376 SE2d 209)
   Benham, Judge.

Though tried jointly, Mr. and Mrs. Boulware filed separate appeals from his conviction of trafficking in cocaine and possession of marijuana, and her conviction of possession of marijuana; we have consolidated the appeals in the interest of judicial economy. The charges arose from the search of a car in which appellants were passengers and which had been rented by Mrs. Boulware. The grounds raised on appeal are the sufficiency of the evidence, the denial of appellants’ motions to suppress, the admission of statements allegedly made by Mr. Boulware, certain jury charges, and the intendment of the verdict as to Mrs. Boulware.

1. Mrs. Boulware’s fifth and Mr. Boulware’s first, second, third, and eighth enumerations of error concern the sufficiency of the evidence. Testimony at trial supporting the verdict showed that the car in which appellants were passengers was stopped by a state trooper for speeding; that the trooper asked Blake, the driver, for consent to search the vehicle, and that Blake said he had no objection, but the car was not his and he needed to check with the person who rented it; that when Blake told the occupants of the car that the trooper wanted to search the car, Reid, the passenger in the front seat, pushed the button in the glove compartment which opened the trunk; that the trooper who was standing at the trunk at that time was then able to see marijuana in a bag in the trunk; that Mr. Boulware got out of the car and spoke to the trooper, eventually giving his consent to search, but refusing to sign a written consent; that Mr. Boulware stated, after the marijuana was found but before the cocaine was revealed, that the drugs were his; and that seven pounds of marijuana and approximately 28 grams of cocaine were found in the trunk, and a small amount of marijuana was found in Mrs. Boulware’s purse. We find that evidence sufficient to authorize a rational trier of fact to find Mr. Boulware guilty beyond a reasonable doubt of trafficking in cocaine and possession of more than an ounce of marijuana, and Mrs. Boulware guilty beyond a reasonable doubt of possession of more than an ounce of marijuana. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Dukes v. State, 186 Ga. App. 815 (369 SE2d 259) (1988). The fact that Blake at trial and Mr. Boulware at the scene of their arrest claimed responsibility for the drugs did not relieve Mrs. Boulware of criminal liability. For one thing, the contradiction of each by the other did nothing for the credibility of either, and for another, the fact that Mrs. Boulware rented the car and they were all together on their trip from North Carolina to Miami and back, when viewed together with the obviousness of the marijuana in the trunk of the car, would authorize a finding that Mrs. Boulware, even if she did not have actual physical control of the marijuana was guilty as a party to the possession of it. See Barrett v. State, 183 Ga. App. 729, 735 (360 SE2d 400) (1987).

2. Both appellants enumerate as error the denial of their motion to suppress the contraband found in the trunk of the car. Mr. Boulware argues that he did not give consent for the search and Mrs. Boulware argues that since she was the person who rented the car, it was her permission that was required, not that of Blake or of Mr. Boulware. Pretermitting any question of consent, however, we find that the evidence demanded the conclusion that the arresting officer had probable cause to search the vehicle at the time Reid opened the trunk and revealed to the officer the presence of a bag of marijuana in plain view in the trunk. Testimony at the motion to suppress hearing established that the car was stopped for speeding; that the officer grew suspicious when he noticed that Mr. Boulware, who had appeared to be sitting upright when first sighted, was leaning on his wife’s shoulder, feigning sleep, and when Reid could not name any place in Florida they had been; that the officer then asked Blake, the driver, for permission to search, and while he waited for Blake to check with the other occupants jfor objections to a search, the trunk opened. Since the officer was standing in a place where he had a right to be when the marijuana was revealed to him, the marijuana was subject to seizure and gave him probable cause to search the rest of the car. Rowe v. State, 184 Ga. App. 437 (1) (361 SE2d 705) (1987). Under those circumstances, we find no error in the denial of appellants’ motions to suppress.

3. Mr. Boulware complains in his sixth enumeration of error of the admission into evidence of a custodial statement he allegedly made at the scene of the search, taking responsibility for the presence of the contraband. The testimony at trial authorized the trial court to conclude that one of the statements appellant made at the scene was spontaneously made without any questions being asked and preceded appellant’s arrest, and that the other statement was the result of interrogation after appellant was duly advised of his constitutional rights. A trial court’s determinations regarding the admission of a defendant’s statements are not to be disturbed unless clearly erroneous (Hart v. State, 185 Ga. App. 141 (3) (363 SE2d 599) (1987)), and the findings in this case are not.

4. Mrs. Boulware’s two enumerations of error concerning jury charges need not be addressed because her counsel, when asked whether there were objections to the charge, said there were none. Grant v. State, 185 Ga. App. 497 (5) (364 SE2d 628) (1988).

5. Count two of the indictment in this case was entitled “POSSESSION OF CONTROLLED SUBSTANCE (MARIJUANA).” That count charged the defendants with possession of more than one ounce of marijuana. When instructing the jury on the form of verdicts, the trial judge told it that if it found that a defendant had possession of more than one ounce of marijuana, it should find the defendant guilty. The verdict returned by the jury stated that Mrs. Boulware was “guilty of possession of controlled substance (marijuana).” On appeal, she contends that the verdict did not clearly convict her of felony possession of marijuana and that it was, therefore, error to sentence her for a felony. We disagree.

Decided November 9, 1988 —

Rehearing denied November 28, 1988.

Michael K. Gardner, for appellant (case no. 76850).

Stephen M. McCusker, for appellant (case no. 76877).

Spencer Lawton, Jr., District Attorney, John E. Morse, Assistant District Attorney, for appellee.

Mrs. Boulware’s counsel specifically rejected any jury instruction on lesser offenses. The indictment, in the only count involving marijuana, alleged possession of more than one ounce of marijuana. The jury’s verdict found Mrs. Boulware guilty in the language of the indictment. Given those circumstances and applying the principle that “[a] general verdict of guilty is by intendment of the law a verdict that the defendant is guilty of the highest offense charged in the indictment . . .” (Bissell v. State, 153 Ga. App. 564, 566 (2) (266 SE2d 238) (1980)), we are of the opinion that the jury found appellant guilty of felony possession of marijuana. We note that here, as in Bis-sell, the jury was polled, but Mrs. Boulware’s counsel made no objection or exception to the form of the verdict after the publication thereof and before the dispersal of the jury. There was no error in sentencing Mrs. Boulware for a felony.

Judgments affirmed.

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


author: Deen, Presiding Judge.

text:
    77772.
    MILLER et al. v. NEEL et al.
    (375 SE2d 887)
   Deen, Presiding Judge.

In 1976 the appellees purchased some land, which they divided and sold as lots for residential dwellings. The appellants are homeowners in the resulting subdivision. In 1984 and 1986, portions of the subdivision were flooded by surface water during periods of heavy rain, and the appellants subsequently commenced this action against the appellees, asserting fraud. This appeal follows from the grant of summary judgment for the appellees. Held:

The appellants alleged that the appellees concealed the fact of the land’s propensity to flood and falsely represented that the land was suitable for residential dwellings when they knew, or in the exercise of reasonable care should have known, that it was not. Nothing in the extensive deposition and affidavit evidence refutes the appellees’ testimony that they had no prior knowledge that portions of the subdivision were subject to flooding. No issue of fact thus exists over a fraudulent concealment of the flooding. We also reject the appellants’ related assertion that the appellees’ failure to obtain an engineering report, by which they could have discovered that the property was subject to flooding, constituted an act of fraud. Lastly, the appellees’ representations in advertisements that the property was suitable for residential purposes were expressions of opinions of the type that will not support a claim of fraud. See Miller v. Clabby, 178 Ga. App. 821 (344 SE2d 751) (1986). Accordingly, the trial court properly granted summary judgment for the appellees.

Decided November 28, 1988.

Blackburn, Bright, Edwards & Joseph, J. Converse Bright, for appellants.

Alexander & Vann, William C. Sanders, Frank T. Holt, Larkin M. Fowler, Jr., for appellees.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: McMurray, Presiding Judge.

text:
    77773.
    OMNI OUTDOOR ADVERTISING, INC. v. DURDEN.
    (376 SE2d 224)
   McMurray, Presiding Judge.

Plaintiff Durden entered into an agreement whereby he leased certain real property to Watts for use as a tire and automotive maintenance, service and sales outlet. The term of the lease, including extensions available at the option of the tenant, was from March 1, 1980, to February 28, 1989. The lease granted to the tenant, Watts, the right to assign the lease to his own business operation or to sublet the premises. On June 9, 1980, Watts executed an assignment of his lease of the premises from plaintiff to “Dee’s Recaps Number Two, Inc.”

In September 1981 defendant Omni Outdoor Advertising, Inc., entered into a lease agreement whereby it purported to lease from George D. Richardson a portion of the premises for the purpose of erecting, illuminating and maintaining an advertising structure (sign). In the sign lease Richardson warranted that he was the lessee of the premises with full authority to make the sign lease. Thereafter in 1982 defendant proceeded to erect its sign on the premises and operate same in an open and notorious manner.

In August 1987 plaintiff sent defendant two letters demanding that defendant immediately remove its sign because of an impending sale. Defendant scheduled the removal of the sign but when defendant’s sign removal crew appeared at the premises, the sign had already been removed.

Plaintiff filed this trespass action alleging that defendant illegally and unlawfully erected its sign, and seeking actual and punitive damages. Defendant answered denying the averments of plaintiff’s complaint. Defendant also filed its counterclaim seeking damages for the conversion of its sign.

Plaintiff filed his motion for partial summary judgment contending that there is no genuine issue as to any material fact and averring that he is entitled to judgment as a matter of law, on the issue of liability as appears from the pleading, depositions, admissions on file and his affidavit. The state court’s order granted plaintiff’s motion for partial summary judgment “as to the issues of liability and the question of the issue of damages remains for determination.” Defendant appeals and enumerates as error the grant of plaintiff’s motion for partial summary judgment. Held:

Defendant presented evidence that Richardson “operated a tire recapping business known as Dee’s Recaps for a number of years” on plaintiff’s real estate. Plaintiff’s affidavits state that he never consented to defendant erecting its sign and that Richardson did not lease the premises at issue in 1980 or 1981. We note that the term of the lease between Richardson and defendant did not commence on its date of execution in 1981 but “on the date of construction,” that is, in 1982. Thus, there is no evidence negating the possibility that the premises were sublet to Richardson prior to the erection of the sign in 1982.

“On motion for summary judgment, the burden of proof is squarely on the moving party . . . and does not shift to the respondent unless the movant, by affidavits or other evidence, shows a prima facie right to such judgment.” Ramseur v. American Mgt. Assn., 155 Ga. App. 340, 342 (270 SE2d 880). In the case sub judice, plaintiff failed to establish his prima facie case. There are genuine issues of material fact as to Richardson’s authority to execute the sign lease. It follows that an issue for the jury remains as to whether defendant was a trespasser. Since these and additional genuine issues of material fact remain, the state court erred in granting plaintiff’s motion for partial summary judgment.

Judgment reversed.

Pope and Benham, JJ., concur.

Decided November 28, 1988.

Maddox, Maddox & Maddox, Lynwood A. Maddox, Jr., for appellant.

E. Graydon Shuford & Associates, E. Graydon Shuford, for appellee.


text:
    77809.
    FORD v. THE STATE.
    (376 SE2d 418)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of rape and now appeals. Held:

1. In his first enumeration of error, defendant contends the trial court misapplied the rape shield statute (OCGA § 24-2-3) by failing to conduct an in camera hearing with regard to defendant’s offer of proof. This enumeration is without merit. A review of the transcript plainly shows that defendant requested an in camera hearing pursuant to OCGA § 24-2-3; that the jury thereupon left the courtroom; that defendant made an offer of proof with regard to the evidence he sought to introduce; and that the trial court made a ruling as to each piece of evidence put forth by defendant. If defendant desired a more formal hearing and an opportunity to present witnesses (instead of stating in his place what the evidence would show) he should have insisted upon doing so. Instead, defendant went along with the trial court’s in camera format without objection. At any rate, we cannot see how defendant was prejudiced by the in camera hearing which the trial court afforded him. See generally Evans v. State, 180 Ga. App. 1 (348 SE2d 561). Compare Hamilton v. State, 185 Ga. App. 536, 538 (2) (365 SE2d 120).

2. In his second enumeration of error, defendant contends the trial court erred in ruling the proffered in camera evidence inadmissible. In this regard, he asserts the rape shield law did not prohibit the introduction of evidence that (1) the victim contracted gonorrhea three months before she was raped and one month before the birth of a child; (2) the victim wore sexually suggestive clothing and acted promiscuously when she frequented night clubs (which she departed in the company of various men at late hours of the night); and (3) the victim demanded money from another man threatening to claim that he raped her. (Defendant learned of the victim’s alleged demand after the rape occurred; there was no evidence that the victim demanded money from defendant.)

OCGA § 24-2-3 “prohibits all evidence relating to the past sexual behavior of the complaining witness, including marital history, mode of dress, general reputation for promiscuity, nonchastity or sexual mores contrary to community standards; in other words, her reputation concerning past sexual activity with persons other than the defendant. The exceptions are, if so found by the judge after an in camera hearing, that the past behavior involved participation by the accused, or that the evidence “ ‘supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of.’ ” Parks v. State, 147 Ga. App. 617 (249 SE2d 672).

Decided November 28, 1988

Liggin & Winkler, H. James Winkler, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

The evidence proffered by defendant did not fit into a statutory exception. It pertained to the victim’s reputation regarding sexual activities with persons other than defendant. It did not support an inference that at the time the rape occurred, defendant could have reasonably believed the victim consented to intercourse. Parks v. State, 147 Ga. App. 617, supra; Worth v. State, 183 Ga. App. 68, 72 (4) (358 SE2d 251). (With regard to the third piece of evidence offered by defendant, it is clear that defendant did not learn of the alleged demand for money until after the rape occurred. Hence, it could not have affected defendant’s belief regarding the victim’s consent.)

The trial court did not err in ruling the proffered evidence inadmissible. Defendant’s second enumeration of error is without merit.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76655.
    CALHOUN v. BONE et al. CRAWFORD W. LONG MEMORIAL HOSPITAL v. CALHOUN.
    76656.
    (375 SE2d 871)
   Beasley, Judge.

This appeal and cross-appeal stem from a renewed medical malpractice action in which the trial court granted summary judgment in favor of defendant physicians, Bone and Guyton, and Crawford W. Long Memorial Hospital. It concluded that plaintiff Calhoun failed to produce expert medical testimony or other evidence in opposition to defendants’ motions for summary judgment and that defendants’ expert medical evidence therefore prevailed so as to warrant summary judgment.

Case No. 76655

1. Bone’s and Guyton’s motions were supported by their own affidavits. The hospital’s motion was supported by the expert affidavit of Dr. Leppard, the resident who treated Calhoun. Plaintiff did not file any opposing affidavits or other evidence, expert or otherwise.

Calhoun contends that the trial court erroneously refused to consider the depositions of the defendant doctors and other discovery taken in the predecessor civil action which had been voluntarily dismissed without prejudice.

Calhoun claims that the unconsidered depositions, specifically Bone’s, contradicted or disproved the doctors’ supporting affidavits and showed they were not based on personal knowledge. She further maintains that the court erred by ruling,, in effect, that she could raise an issue of fact only by submitting a contrary opinion of a different expert rather than by disproving the facts on which defendants’ affidavits were based, by their own contradictory deposition statements and certain medical records.

Approximately three months before the hearing on defendants’ motions for summary judgment, all parties, through their respective counsel, stipulated that all discovery of any type “taken” in the initial action would be considered “applicable to” and “taken” in the refiled action and might be “used to the full extent and in any manner as allowed by Georgia law.” Plaintiff did not file the prior discovery in the renewed action, before the ruling on the summary judgment motion. There is a dispute over whether it was filed in the voluntarily dismissed action at, or shortly before, dismissal in open court. On the same day as oral argument in this Court, the trial court, at appellant’s request, ordered the transmittal to this Court of a supplemental record in the main appeal consisting of the aforementioned depositions of doctors Bone and Guyton and the certified medical records of plaintiff’s personal physician. The order states that permission to open these documents was granted on July 6, 1987, which is the date the order on summary judgment was signed. Appellant cites no authority allowing such action after the appeal is filed. Compare OCGA § 5-6-48 (d) and OCGA § 9-11-60 (g). See Brown v. Wilson ChevroletOlds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979).

The documents had been filed in the initial suit in open court on the day the suit was dismissed, or two days before as to the medical records, and were not filed in the renewed action until the day the case was argued here, approximately nine months after plaintiff’s notice of appeal was filed.

Although the parties stipulated that discovery in the initial suit might be used in the refiled action, plaintiff did not fulfill her obligation to file the subject depositions and medical records in the record in the present action, as required by OCGA § 9-11-29.1, until after appeal. See Kaplan v. Krosco, Inc., 167 Ga. App. 197 (1) (306 SE2d 88) (1983); Williams v. Coca-Cola Co., 158 Ga. App. 139 (1) (279 SE2d 261) (1981). Sheffield v. Zilis, 170 Ga. App. 62, 64 (2) (316 SE2d 493) (1984). The trial court is to make the summary judgment decision on what is “on file.” OCGA § 9-11-56 (c).

Even if the medical records and depositions were in fact of record in the present action below, we have only appellant’s bare assertion the trial court failed or refused to consider these documents. We would have to assume from the trial court’s orders that it did. Appellant’s assertion is not enough to overcome the legal presumption that the trial court considered the entire record before rendering its decision, though it may not recite so in its order. Eunice v. Citicorp Homeowners, 167 Ga. App. 335 (2) (306 SE2d 395) (1983). The court’s order recites that “the Plaintiff has failed to produce expert medical testimony or other evidence, in opposition to the Motions for Summary Judgment filed by the Defendants;. . .” This language does not imply that the court either excluded or included the documents in question but merely that plaintiff failed to produce opposing expert medical testimony or other evidence in her favor, which she was required to do once defendants came forward with their supporting expert affidavits piercing plaintiff’s allegations. Hardinger v. Park, 159 Ga. App. 729 (285 SE2d 212) (1981). Showing internal inconsistencies and contradictions in defendants’ expert evidence is not a substitute.

In any event, the documents do not show that the doctors’ affidavits were not based upon personal knowledge, as appellant claims. Nor do the depositions contradict the substance of the affidavits so as to raise material issues of fact as to plaintiff’s claims of medical negligence and abandonment. See Miller Grading Contractors v. Ga. Fed. Savings &c. Assn., 247 Ga. 730, 733 (3) (279 SE2d 442) (1981). Therefore, summary judgment for defendants was proper.

Case No. 76656

2. By way of cross-appeal, defendant hospital seeks review of the trial court’s alleged oral denial of summary judgment on a second ground advanced, that plaintiff’s action was barred by the two-year statute of limitation in OCGA § 9-3-71 (a).

The hospital did not memorialize the ruling by obtaining an order. See Dunagan v. Sims, 119 Ga. App. 765, 766 (1) (168 SE2d 914) (1969). Nor does it provide on appeal a transcript of the hearing which might show the court’s ruling. See McDaniel v. Oliver, 172 Ga. App. 109, 110 (322 SE2d 1) (1984).

Decided November 7, 1988 —

Rehearing denied November 29, 1988

Rubin Law Offices, Robert P. Hoyt, for Calhoun.

Allen & Ballard, Hunter S. Allen, Jr., Dennis A. Elisco, Edward D. Flynn III, for Bone & Guyton.

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, T. Jeffery Lehman, for Crawford Long Hospital.

There is another reason the merits of the cross-appeal cannot be reached. It is true that the “denial of a motion for summary judgment may be carried up as a cross appeal to the appeal by the opposite party of the granting of a motion for summary judgment. [Cits.]” Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980). But this is not the situation here. The hospital’s motion for summary judgment was granted, not denied, albeit on a basis other than untimeliness of the suit. The issue raised in the cross-appeal is made moot by our determination in Division 1.

“ ‘A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.’ [Cits.]” Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d 689) (1959).

Judgment affirmed in Case No. 76655. Appeal dismissed in Case No. 76656.

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

       Both the initial complaint and the renewal action were filed prior to July 1, 1987, the effective date of OCGA § 9-11-9.1, which requires that plaintiff file an expert affidavit along with his malpractice complaint.


text:
    76869.
    JET AIR, INC. et al. v. NATIONAL UNION FIRE INSURANCE COMPANY et al.
    (375 SE2d 873)
   Beasley, Judge.

Appellants Larry Block and Jet Air, Inc., d/b/a Planes, Inc., appeal from the grant of summary judgment to National Union Fire Insurance Company of Pittsburgh and Southeastern Aviation Underwriters, Inc. The complaint sought recovery in six counts for damages to a Learjet which skidded off the runway in Cleveland, Ohio while landing on January 26, 1983.

While there were numerous non-material factual disputes, viewing the evidence favorably to Jet Air and Block, the opponents of the summary judgment motion, there is no genuine dispute about the following material facts. OCGA § 9-11-56 (c).

Block incorporated Planes in 1962 and Jet Air in 1972. He was president and major stockholder of both. Jet Air was incorporated for the purpose of owning aircraft which were then leased to Planes for use in commercial operations, based in Atlanta. From 1962 through 1983, Block’s aviation business was continuously insured for aviation coverage. For the four years prior to the present claim, coverage was placed with National through Southeastern.

The policy, listing Block, Planes, and Jet Air as the insureds, covered the period from November 19, 1982 to November 19, 1983. The Breach of Warranty Endorsement provided that Ford Motor Credit Company, which financed the Learjet, was lien holder in the amount of $550,000. It further provided that “loss, if any, under any Physical Damage coverage provided by this policy, shall be payable to the insured, and to Ford ... as interest may appear.” For a partial loss, the policy provided that National would pay “if repairs are made by other than the Named Insured, the cost to repair the damaged property . . . (excluding any charges for overtime), . . . .”

The promissory note to Ford signed by Block as president of Jet Air, and guaranteed by him individually and by Planes, provided that insurance acceptable to Ford would be obtained and that “the policy . . . shall, by endorsement be acceptable to [Ford], provide that losses thereunder shall be first payable to [Ford] as its interest may appear, and Debtor hereby assigns to [Ford], the proceeds of all such insurance ... to the extent of the indebtedness secured hereby, directs the insurer to make payments of any losses . . . directly to [Ford], and appoints [Ford] as Attorney-in-Fact to endorse any draft, check or other form of payment made by the insurer. ...” The note also provided that upon default, Ford could retake possession with or without process of law and sell the collateral at public or private sale.

On December 14, 1982, Ford sent Jet Air a mailgram notice of delinquency for the payments due in October, November and December, and demanded payment by December 17. At the time of the crash in January, neither these payments nor the January payment had been made.

When it crashed, the Learjet was being piloted by an employee of Epps Air Service which had leased the plane from Planes. Epps was also insured by National. Planes’ policy contained a substantial deductible and did not provide coverage for loss of use. However, a claim by Planes against Epps would potentially be covered by Epps’ policy, which provided coverage without a deductible and for loss of use. A tort action against Epps is pending.

On February 1, 1983, Jet Air’s balance of $610,224.13 on the note to Ford was accelerated, and Ford notified Southeastern on February 3 of repossession “in place.” The plane was located at Wright Aviation, a repair facility at the Cleveland airport where the crash occurred.

Block acknowledged that the plane was not a total loss and was repairable. On February 3 he sent a letter to Wright authorizing it to inspect the damaged plane and “to make such repairs as are required to return the aircraft to serviceable condition. I will expect your damage report prior to commencement of repairs.” On April 19 Ford also sent a letter to Wright giving “formal authorization” for the repairs.

The fuselage was not repaired by Wright until March, 1984 and the engines were not sent to the manufacturer for analysis and repair until late 1983. The engines were disassembled and Block’s attorney was notified by copy of a letter of December 9, 1983 from Southeastern to Ford’s counsel that the engines were corroded and that some if not all of the corrosion was due to the delay in repair.

Back on March 3,1983, Planes filed for protection under Chapter 11 of the Bankruptcy Code, Title 11 USC § 1101 et seq. Prior to this, National had received a garnishment from Westinghouse, a creditor of Planes, and a Notice of Tax Levy on Planes from the I.R.S. Although Ford’s note was from Jet Air, Ford did not physically repossess because Planes had claimed an interest in the plane in the bankruptcy proceedings.

Ford intervened in the bankruptcy on May 24, 1983, seeking to terminate the stay and proceed with the sale of the Learjet. On August 21, 1984, that court found that Ford had a valid security interest in the plane, “that the amount of Debtor’s debt exceeds the value of such property, [and] that Debtor has been unable to afford Plaintiff adequate protection for its interest in such property, . . . .” The court modified the stay to allow Ford to take immediate possession of the plane and to direct Planes to cause it to be surrendered. Block acknowledges that it was his intent to convey the Learjet to Ford and allow Ford to sell it.

On September 21, 1984, Block for the first time notified Southeástern that he demanded settlement of the claim as a total loss, claiming the face amount of the policy, $800,000. In June 1985, Ford settled with National for $225,506.73. Block was aware of the settlement by at least June 8. Ford proceeded to sell the plane for $130,000 and credited both sums to the balance due by Jet Air. Jet Air obtained assignments of some assets of Planes from the bankruptcy, including any claims under the policy.

Jet Air and Block sued on August 13, 1986. They claimed: Southeastern and National failed to pay under the policy; defendants caused the “deterioration” of the plane by their handling of the claim; defendants contracted with Wright to have the plane repaired and told plaintiffs the repairs would be made in a timely and competent fashion, knowing these statements to be false; defendants had negligently selected Wright and negligently entrusted the plane to them; and Southeastern interfered with the contract between National and plaintiffs. A sixth count was abandoned in the summary judgment proceedings.

1. Choses in action, including those arising under contracts, may be assigned. OCGA §§ 44-12-22; 33-24-17; 18-2-41. That is what Block and Jet Air did, to the extent of their indebtedness to Ford, by signing the Breach of Warranty Endorsement. Thus, Ford as well as Jet Air and Block had an insurable interest at the time of the loss. OCGA § 33-24-4; Republic Ins. Co. v. Martin, 182 Ga. App. 390, 392 (1) (355 SE2d 694) (1987).

While Block and Jet Air retained their insurable interests even after the foreclosure due to their continued liability on the note, the question is the extent to which they are entitled to recover, considering the nature of the loss and the language of the policy and the assignment.

The policy provided that, in the situation of a partial loss, the only right to recovery was the “cost to repair.” Prior to the August 21, 1984 order of the bankruptcy court, Block and Jet Air had incurred no repair costs. After that time, Ford as owner of the Learjet was responsible for the costs.

As to the actual cost to repair the plane, reflected by the invoices from Wright and the manufacturer, Block and Jet Air had suffered no loss and had no right to recover under the policy as written. McKay v. Consolidated &c. Ins. Co., 149 Ga. App. 691, 692 (256 SE2d 93) (1979); see National Security &c. Co. v. Eureka Fed. Savings &c. Assn., 188 Ga. App. 693 (373 SE2d 811) (1988); Cherokee Ins. Co. v. First Nat. Bank, 181 Ga. App. 146, 147 (351 SE2d 473) (1986). They did not incur liability for the repairs. In fact, they were benefitted by the reduction of the debt to Ford in the full amount of the repair costs.

Thus, summary judgment to defendants as to recovery of this amount was not error.

2. Plaintiffs’ claim that the plane was a total loss due to deterioration caused by negligent repair seeks a windfall. Although appellants lost the plane, that was due to repossession, and they did not lose the total value of the plane because of the substantial reductions in the debt to Ford which were reflected by the credits for insurance and sale proceeds of the repaired plane.

In addition, plaintiffs failed to comply with conditions precedent required by the policy.

Condition 10 provides that “[p]ayment for loss may not be required nor shall action lie against the Company unless as a condition precedent thereto, the named insured shall have complied with all the terms of this policy nor until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy, nor at all unless commenced within twelve months after the happening of the loss.” (Emphasis supplied.)

Pretermitting the issue of failure to file a proof of loss as to the total loss claim, and assuming without deciding that the time for determining the “happening of the loss” with regard to the corrosion damage was its discovery in December 1983, plaintiffs’ failure to file suit within one year is fatal to recovery on that claim. Universal Scientific v. Safeco Ins. Co., 174 Ga. App. 768, 770 (331 SE2d 611) (1985); Smith v. Allstate Ins. Co., 159 Ga. App. 743, 744 (285 SE2d 82) (1981).

Plaintiffs’ argument that any such requirement was waived by defendants is not supported by the record as to the “total loss” claim. At no time did the insurer or its agent indicate willingness to negotiate any such claim. Universal, supra at 769-770; see Carpenters Local Union &c. v. Gen. Ins. Co. &c., 167 Ga. App. 299 (306 SE2d 383) (1983).

3. Counts 4 & 6 deal with false representations by National and Southeastern as to the competence of Wright and negligent selection of Wright by them.

“A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual.” OCGA § 51-1-1.

The only duty owed by either defendant to plaintiffs, and the only one in any way supported by the record, is that created by the contract of insurance. Even assuming a breach of the contract, it would not amount to a tort by either National or its agent, Southeastern. State Farm Fire &c. Co. v. Pace, 176 Ga. App. 737, 739 (337 SE2d 401) (1985); Smith v. United Ins. Co., 169 Ga. App. 751, 752 (1) (315 SE2d 265) (1984).

The evidence shows that Wright, which had the Lear jet and was to repair it, was an independent contractor, whether the contract was with Southeastern or plaintiffs. There being no evidence that Southeastern exercised any control as to the time and manner of the work, it could not be liable for any negligence of Wright in repairing the plane. OCGA § 51-2-5. Caruso v. Aetna Cas. &c. Co., 181 Ga. App. 829, 830 (354 SE2d 18) (1987).

Summary judgment on these counts likewise was not error.

4. Finally, count 5 alleged that Southeastern intentionally interfered with the contract of insurance between National and plaintiffs, apparently by agreeing to pay Wright for repairs, that being the only factual basis alluded to by plaintiffs.

Tortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. McDaniel v. Green, 156 Ga. App. 549, 550 (1) (275 SE2d 124) (1980); Piedmont Cotton Mills v. H. W. Ivey Constr. Co., 109 Ga. App. 876, 879 (1) (137 SE2d 528) (1964). All of the acts of Southeastern complained of by plaintiffs were performed by Southeastern as agent for a contracting party and were within the scope of its duties as agent. OCGA §§ 10-6-1; 10-6-50; 10-6-51.

Decided November 10, 1988 —

Rehearing denied November 29, 1988

Robert M. Goldberg, Alan Z. Eisenstein, for appellants.

Mozley, Finlayson & Loggins, J. Arthur Mozley, Deborah A. Finnerty, for appellees.

Summary judgment on that count was not error either.

Judgment affirmed.

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


text:
    75441.
    WILLIS v. THE STATE.
    (377 SE2d 552)
    Decided November 29, 1988.
    Walter Willis, pro se.

      Don E. Snow, for appellee.
   McMurray, Presiding Judge.

In Willis v. State, 186 Ga. App. 197 (366 SE2d 778), we affirmed the trial court’s denial of defendant’s motion for an out-of-time appeal. On certiorari, in Willis v. State (case no. 45592), the Supreme Court of Georgia, in an order dated October 18, 1988, has ruled that “there is no evidence that the defendant acted or failed to act in any manner which could be construed as a purposeful delay of his appeal. See State v. Denson, 236 Ga. 239 (223 SE2d 640) (1976). Accordingly, this case is remanded to the trial court with direction that the defendant’s motion for out-of-time appeal, denied on February 27, 1987, be granted.”

In view of the direction of the Supreme Court to the trial court, the prior judgment of this court is vacated and in furtherance of the procedural implementation of the Supreme Court’s order this case is remanded to the trial court with direction that its prior judgment be vacated and for execution of the Supreme Court’s directive.

Judgment vacated and case remanded with direction.

Birdsong, C. J., Deen, P. J., Banke, P. J., Parley, Sognier, Pope, Benham and Beasley, JJ., concur.


text:
    77347.
    FRANKLIN v. THE STATE.
    (376 SE2d 225)
   Beasley, Judge.

Defendant appeals his convictions of aggravated assault (OCGA § 16-5-21 (a) (2)), rape (OCGA § 16-6-1 (a)), armed robbery (OCGA § 16-8-41 (a)), and two counts of aggravated sodomy (OCGA § 16-6-2 (a)) committed upon S. T., and of robbery by force and intimidation (OCGA § 16-8-40 (a) (1) & (2)), aggravated sodomy, and burglary (OCGA § 16-7-1 (a)) committed upon S. J.

1. Defendant contends the introduction of three similar crimes was error in that the crimes were not similar. Two of these incidents were the subject of the second and third counts of the eleven-count indictment which had been severed from the remaining eight counts. The third was a prior burglary to which defendant pled guilty in 1980.

The incident in the present case occurred in the early morning hours of July 4, 1987. S. T. and S. J. were roommates in an apartment complex at 5555 Roswell Road. S. J. and S. T. were asleep in their apartment. S. J. had gone to sleep watching television and had left a light on. She awoke between 3:30 and 4:00 a.m. to find a hand on her neck, pushing her face into her pillow. Initially she thought it was a joke. She was told not to scream or move and, because the voice sounded like that of a black male, she thought it might be her boyfriend. However, when the assailant released her to go toward the door to her bedroom, she turned and looked at him “3 to 5 seconds dead flat in the face” and realized it was a stranger, a white male with dark hair parted in the middle and a moustache.

He told her not to look at him, came back to her and pressed a sharp object into her side. Over the next hour to hour and-a-half, the man terrorized both her and her roommate, S. T. Giving the women a choice to either “suck or fuck,” he forced S. J. to perform oral sodomy on him, took $70 from her purse, repeatedly raped and sodomized S. T. both orally and anally, and took money from S. T.’s clothing.

S. T. had awakened during the assailant’s initial encounter with S. J., thinking that S. J.’s boyfriend was with her. S. T. went to the rest room, returned to her room and locked her bedroom door, as was her habit. She then heard someone rattling her doorknob. Believing it was S. J., she opened the door and a gloved hand came at her and the assailant charged her. She saw his face when he ran into the lighted room. She also saw his face later in a mirror.

Both women were blindfolded during most of the ordeal, but both saw the attacker’s gloves and described them as brown and burlap-like. While S. T. was being forced to perform oral sodomy, although she could not see above the blindfold, she could see below it and saw his olive green cotton pants. Both women said he was wearing a blue jean jacket.

The assailant told the women that he and his accomplice (although there was only one man there) had been running from the law over three states and that his partner would kill them. He asked where he was and for directions south.

After the man left, the women ran to Roswell Road to use the phone, not having one. They flagged down a policeman.

It was discovered that entry had been made through the sliding glass door of the apartment, which S. T. had checked before retiring and which had been locked.

Three days later, the two women spent approximately four hours with a police artist preparing a composite drawing of the assailant. The composite was broadcast over area television, resulting in a call from a probation/parole officer on July 9. He advised the officers that the drawing appeared to be of defendant, one of his parolees. Defendant was on parole after serving six years of a twenty-year (twelve to serve) sentence for burglary for the 1980 similar crime set out below.

Defendant was arrested. A search warrant for his car produced a blue jean jacket, a pair of olive green cotton uniform pants, and a pair of brown burlap garden gloves.

On July 8, both women were shown a photographic lineup which did not include defendant but consisted of similar looking males. Both women said the assailant was not among that group. The next day, the women were shown a different photographic lineup which included the defendant’s photo. Both picked his picture and identified him in person at the trial.

The three similar incidents were as follows:

On September 13, 1980, G. C. lived in an apartment complex in Vinings. She had a roommate who had been out of town the preceding week but had returned the previous evening. About 6:30 a.m., G. C. opened the sliding glass door and went to get in the shower. She heard a crash in her bedroom and looked out to find defendant. He accosted her in the shower, told her he was not there to kill her, just to fuck her. He told her not to look at him. She told defendant she had a roommate, whereupon he said she did not. Her roommate’s dog began to bark and her roommate opened her bedroom door, allowing the dog to run out. Defendant loosened his grip on G. C. and she ran into her roommate’s room. Defendant fled. He was wearing blue jeans and a tee shirt. She identified his photo from a spread and he was arrested. He pled guilty to Count 5 of the resulting indictment, which specifically charged him with burglary “with intent to commit rape,” and was imprisoned for six years.

On June 30, 1987, P. S. who resided at an apartment on Roswell Road, heard a noise at about 4:45 a.m. She turned on the light in her living room and saw the torso of a white male with a moustache attempting to come into the apartment through a low window which had been partially open. His hands were stuck by his side and were not visible to her. He was wearing a thin women’s stocking as a mask, a tee shirt and jeans. She was five feet away and saw his face clearly. Although she screamed, he continued to try to get in. She went to her bedroom and returned with her loaded gun, threatening to blow his head off. He left. She was shown the same photo spread as S. T. and S. J. and identified defendant’s photo, saying she was “75% sure.” At trial she identified defendant and stated she had no doubt he was the man.

On July 1, 1987, P. A., a male who lived with a woman in an apartment on Roswell Road, was about to take a shower at 6:15 a.m. when the lights in the lavatory went out. He went to investigate and saw a white male with dark hair and a moustache wearing jeans, a black tee shirt, and black driving gloves. When the man saw P. A., he looked startled and ran. The apartment was on the third floor and entry had been obtained by climbing to the third floor balcony and breaking in through the sliding glass door. P. A.’s roommate kept regular hours. P. A., for the week preceding the incident, had been working two jobs, leaving the apartment very early and returning very late. Within days, P. A. was shown the photo spread including defendant and picked his picture.

In the incident on trial, the State’s theory was that defendant was a pattern rapist who staked out apartments and victims prior to attacking and, because of his being caught in 1980, wore gloves and on one occasion a mask and kept his clothes on during assaults to prevent leaving fingerprints and hair as evidence.

The State produced in rebuttal a man who had been imprisoned with defendant. This man testified that on April 20, 1987, he had run into defendant at a Marietta restaurant/lounge where he and defendant talked. He said defendant repeatedly asked women to dance and they refused. One did so repeatedly. Defendant called her a “white bitch.” Defendant also told him that his women had neglected him while he was in prison and he was going to “get over on them” for doing that. The witness said that during their imprisonment, defendant socialized primarily with black inmates, and “resembled a black person and could talk like a black person.”

Defendant’s defense was alibi. His girl friend and a friend he had known since childhood testified that on July 3 to 4, defendant was a customer at the bar where the girl friend worked, staying until she closed up at 3:30 to 4:00 a.m., when he and she went to her apartment where they stayed.

“Generally, evidence of other criminal acts of the defendant is inadmissible because it tends to place the defendant’s character into evidence in violation of OCGA § 24-9-20 (b). Exceptions allow independent crimes to be introduced on two conditions: 1) there must be evidence that defendant was in fact the perpetrator of the independent crime, and 2) there must be sufficient similarity or connection between the independent crime and the charged crime that proof of the former tends to prove the latter. State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980); Sport v. State, 253 Ga. 689 (324 SE2d 184) (1985). Thereafter the independent crime may be introduced to prove identity, motive, plan, scheme, bent of mind and course of conduct. [Cit.]” Sablon v. State, 182 Ga. App. 128, 130 (2) (355 SE2d 88) (1987).

Defendant admitted he was the man in the 1980 incident. He was positively identified in court by the other two victims, both of whom had previously picked his photo from a spread.

Since defendant’s only defense was that he was elsewhere and was not the assailant, identity was the primary issue. The other crimes were admissible for this purpose and were sufficiently similar to meet the second prong of the test. Although defendant argues here that the 1980 incident was “too old,” that ground was not raised below and will not be considered here for the first time. Johnston v. State, 178 Ga. App. 219, 222 (4) (342 SE2d 706) (1986); see Nelson v. State, 181 Ga. App. 481 (2) (352 SE2d 804) (1987), in which an 11-year-old crime was admitted.

The other crimes were properly admitted. Houston v. State, 187 Ga. App. 335, 337 (1) (370 SE2d 178) (1988).

2. In his second enumeration of error, defendant argues that his character was improperly placed into evidence without his having first done so, by the State’s reference to his plea of guilty in its opening statement. This was not objected to below and will not be considered for the first time here. Johnston, supra.

He further contends that it was improper for the court to allow into evidence a certified copy of the 1980 indictment. When the State originally tendered the copy in its case-in-chief, the court sustained the objection. The court offered counsel for defendant an overnight opportunity to “sanitize” the copy by removing all reference to the counts which were disposed of by nolle prosequi. Defendant’s counsel took a copy overnight but never presented to the court the redacted version.

Defendant admitted that he had been the man in G. C.’s apartment but said he was drunk and was being driven home by “Wendell”; the next thing he knew he woke up in his car in front of G. C.’s apartment. He had merely gone into the apartment looking for Wendell and had meant G. C. no harm.

When asked by the State if he had not pleaded guilty to burglary with intent to commit rape, defendant denied it. The indictment had, in fact, specifically so charged him and he pleaded guilty to it.

Decided November 29, 1988.

M. Muffy Blue, Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry Newkirk, R. Andrew Weathers, Assistant District Attorneys, for appellee.

At that time, the State tendered the certified copy. Defendant moved for mistrial on the ground the State had interjected the entire five counts of the indictment when the court had not allowed that in earlier rulings (apparently referring to the court’s ruling that the document could not be admitted in the State’s case-in-chief) or to admonish the district attorney not to proceed with improper and prejudicial cross-examination^

The court ruled that the line of cross-examination was appropriate, which it was, Jones v. State, 257 Ga. 753, 759 (1 a) (363 SE2d 529) (1988), and admonished the district attorney not to go into the other counts. He did not. Having received one of the alternative forms of relief for which he asked, having failed to modify the indictment when given the opportunity, and not having renewed the motion for mistrial or otherwise objected, there is nothing of which to complain. Kent v. State, 182 Ga. App. 592, 593 (2) (356 SE2d 543) (1987); Burce v. State, 146 Ga. App. 383, 384 (246 SE2d 412) (1978).

3. The third enumeration contends the evidence was insufficient. It was not. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    77619.
    SANDERS v. S. D. LEASING, INC.
    (376 SE2d 420)
   Birdsong, Chief Judge.

This appeal is from a summary judgment domesticating an Arkansas judgment in the amount of $4,781.50 with interest specified.

The appellant Sanders d/b/a Quick Soul Food, concedes in brief that he “never set foot” in Arkansas, that he leased a jukebox from the appellee S. D. Leasing, Inc., under a document wherein he agreed that in the event of his default he consented to be subject to Arkansas jurisdiction. He also asserts in brief that all transactions for lease of the jukebox were handled through the mail, and that the jukebox was delivered to Quick Soul Food, his place of business in Georgia.

Appellant Sanders enumerates three errors, none of which directly faces the basis of the trial court’s ruling. Held:

1. Sanders contends the court below erred in granting summary judgment to the plaintiff while failing to review and consider the entire record, specifically, the “unrebutted affidavit of Charles R. Sanders wherein he stated under oath that he had never been served with the Arkansas action”; and, further, that the plaintiff S. D. Leasing had failed to prove pursuant to Arkansas law that the process server was duly appointed to serve the underlying complaint.

The Arkansas court expressly found jurisdiction of the defendant (appellant here) and of the subject matter, and found “due service of process by Summons has been made on the Defendants for the time and in the manner prescribed by law issued on the Complaint of the Plaintiff. ...” This judgment has not been shown to be void on its face for any reason. According to OCGA § 9-12-132 of the Uniform Enforcement of Foreign Judgments Law, “. . . [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.” (Emphasis supplied.)

According to OCGA § 9-11-60 (a) (b), unless a judgment is void on its face, it must be attacked by direct proceeding by motion for new trial or motion to set aside only in the court of rendition. 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.

The trial court could not hear an attack on the Arkansas judgment because none was made except in response to motion for summary judgment for domestication here. No matter or proceeding was filed by appellant as provided by OCGA § 9-11-60 to attack the Arkansas court’s jurisdiction. He assuredly could not do so merely by response to motion for summary judgment.

2. Appellant contends the trial court erred “by allowing comity to a punitive damages application of the contract.” There is no merit in this contention, for the Arkansas judgment expressly found the appellant to be liable to S. D. Leasing “in the amount of $4,705.25, representing the amount as alleged in the Complaint as reduced by a calculation of present value and mitigation.” (Court costs were added to the demand in this action.) Under Taylor v. Commercial Credit &c. Corp., 170 Ga. App. 322 (316 SE2d 788), these are liquidated damages and not a penalty.

3. Appellant contends the trial court erred by allowing a corporation doing business in Georgia to maintain an action without first qualifying with the Secretary of State’s office, in accordance with OCGA § 14-2-331 (b).

It strikes us first that fundamentally, the appellee was not “doing business in Georgia.” See OCGA § 14-2-310; Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69 (354 SE2d 628). But assuming appellant’s first premise to be correct, he cannot prevail. OCGA § 14-2-331 (c) provides: “The failure of a foreign corporation to obtain the certificate of authority to transact business in this state . . . shall not prevent the corporation from . . . proceeding in any court of this state; nor shall any party avail himself of the benefit of subsection (b) of this Code section except upon motion prior to judgment.” (Emphasis supplied.) No such affirmative motion prior to judgment was filed in this case by the appellant. Therefore, according to the plain words of the statute, he cannot avail himself of this defense.

Decided November 29, 1988.

Robert S. Devins, for appellant.

Lamberth, Bonapfel, Cifeli & Wilson, Therese G. Franzen, Sanders B. Deen, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77727.
    TRILLIUM NURSING HOME, INC. v. THEBAUT et al.
    (375 SE2d 888)
   Deen, Presiding Judge.

Bartola Thebaut, by and through his next friend, Dorothy Twilley, brought a medical malpractice action against Sky Ranch Rest Home, d/b/a Sky Ranch Nursing Home, and Joe S. Cruise, which was filed on August 7, 1985, in Fulton County Superior Court. On August 20, 1985, the plaintiffs sought to amend the complaint, seeking to add “Trillium Nursing Home, Inc., d/b/a Sky Ranch Nursing Home and Matthew C. Dempsey, president, individually and as chief administrator of defendants Sky Ranch Nursing Home.” The complaint was also amended to delete “Sky Ranch Rest Home, Inc., d/b/a Sky Ranch Nursing Home” in its stead. On September 19, 1985, Trillium and Dempsey filed a joint answer, making a special appearance and not consenting to or waiving jurisdiction. On October 4, 1985, the plaintiffs dismissed “Sky Ranch Rest Home Inc., d/b/a Sky Ranch Nursing Home” as a party defendant. The court did not enter an order allowing the proposed amendment to change the parties until June 23, 1986, some eight months after the statute of limitations had run. On December 31, 1987, the court denied the defendants’ motion to dismiss the complaint, finding that they were added as parties on June 23, 1986. This court granted appellant’s petition seeking an interlocutory appeal. Held:

A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), holds that OCGA § 9-11-15 (c), permits an amendment changing the parties to relate back to the date of filing the original petition provided that the amendment arises out of the same facts as the original complaint, that the new defendant has sufficient notice of the action, and that he knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him. Cobb v. Stephens, 186 Ga. App. 648, 649 (368 SE2d 341) (1988). All the above requirements have been met in the instant case.

Decided November 29, 1988.

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellant.

James A. Goldstein, Long Weinberg, Ansley & Wheeler, Robert D. Roll, for appellees.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Deen, Presiding Judge. Carley, Judge,

text:
    77762.
    DAVIS v. THE STATE.
    (376 SE2d 421)
   Deen, Presiding Judge.

Appellant Davis was tried by the court sitting without a jury, found guilty of armed robbery of an elderly patron of a local cocktail lounge, and sentenced to fifteen years’ imprisonment. The robbery was effected by holding two screwdrivers in a menancing manner as the patron was using the men’s room, and forcing the patron to turn over his watch, wedding ring, car keys, currency, and other items. The two had just left the rest room and were en route to the parking lot, appellant holding the two screwdrivers against the victim’s chest, when they encountered an employee of the lounge. The victim asked her to call the police, and as she ran towards the telephone, appellant dropped the screwdrivers and ran into the hotel adjacent to the lounge. Davis was subsequently discovered in a storage room and, after being identified by management personnel of the hotel (where he was a former employee), he was taken into custody. In his possession were, inter alia, a gasoline cash receipt bearing the victim’s name and “wadded up” currency. Police subsequently found in the men’s room of the lounge a briefcase containing a belt buckle inscribed with appellant’s name, as well as certain papers belonging to appellant, among which were documents pertaining to his parole from incarceration for a prior offense.

Before trial, appellant’s appointed counsel offered a motion in limine to exclude the parole papers because they would allegedly place the defendant’s character in issue. The court denied the motion on the basis that the briefcase and its contents were being proffered to prove identity, an essential element of the State’s case. The court apparently disbelieved Davis’ contention that he was merely attempting to defend himself against a homosexual attack by the patron and found him guilty. After denial of Davis’ motion for new trial, he appeals to this court, enumerating as error the general grounds and the introduction of evidence which allegedly placed his character in issue. Held:

1. Scrutiny of the record, including the trial transcript, indicates that there was sufficient competent evidence to authorize a rational trier of fact to find appellant guilty as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Moreover, our examination of the record reveals no error of law in the proceedings below. This enumeration is without merit.

2. Appellant alleges that the parole papers contained in the briefcase were cumulative of other evidence of identity and that, since their probative value was therefore outweighed by their prejudicial effect, the trial court committed reversible error in admitting them. In Lamons v. State, 176 Ga. App. 290 (335 SE2d 652) (1985), a witness made an unsolicited remark suggesting drug use by defendant, and the trial court sustained counsel’s objection and gave curative instructions. This court, relying on Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976), and Chester v. State, 144 Ga. App. 717 (242 SE2d 356) (1978), held that, in view of the other sufficient and competent evidence proffered, the error was harmless. Id. at 291. In Bethea v. State, 172 Ga. App. 598 (324 SE2d 202) (1984), we held, in a fact situation similar to that in the case at bar, that “ ‘[mjaterial evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue.’ ” See also Lumpkin v. State, 182 Ga. App. 505 (356 SE2d 238) (1987). Moreover, it is well settled that in a bench trial the court has broader discretion in admitting evidence than in cases where a jury is involved. Milner v. State, 163 Ga. App. 827 (296 SE2d 360) (1982). In the instant case the trial judge expressly stated for the record, “The court has removed from its mind any slight comment that may have suggested that [defendant’s] character had been placed into evidence. And I will not and do not consider such [evidence].”

In light of the fact that there was so much unassailable evidence establishing the appellant’s commission of the crime with which he was charged, and particularly in view of the court’s statement, supra, we find it highly probable that the challenged papers did not contribute to the conviction. Johnson v. State, supra. This enumeration, too, is without merit.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs spe dally.

Decided November 29, 1988.

Rise H. Weathersby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry Newkirk, R. Andrew Weathers, Assistant District Attorneys, for appellee.

Carley, Judge,

concurring specially.

I concur in Division 1 of the majority opinion. With regard to Division 2, there was no error because the parole papers were clearly admissible. Lumpkin v. State, 182 Ga. App. 505, 506 (3) (356 SE2d 238) (1987).