author: Cooper, Judge.

text:
    A91A1823.
    SANCHEZ v. THE STATE.
    (416 SE2d 139)
   Cooper, Judge.

Appellant appeals his conviction of voluntary manslaughter and aggravated assault. He enumerates as error the denial of his motion for directed verdict and the trial court’s admission of photographs of the victim.

Appellant and Elfego Simon (“Simon”) were arrested and indicted for the murder of the victim. Prior to trial, Simon pled guilty to voluntary manslaughter and subsequently testified against appellant. The evidence adduced at trial reveals that in 1988, Simon lived in a trailer at a trailer park in Gainesville, Georgia, with the victim and several others. Simon subsequently moved to Texas where he met appellant, and in January 1989, they both returned to Gainesville and moved into a trailer located in the same trailer park. Around midnight on the evening of January 16, 1989, appellant and Simon were both intoxicated and standing outside their trailer. A van carrying the employees of a local poultry company arrived at the trailer park, and several passengers, including the victim, got out of the van and walked toward their trailers. Simon testified that appellant urged him to attack the victim to get revenge for a previous fight involving Simon and the victim, and consequently, Simon attacked the victim from behind. Appellant and Simon both began kicking the victim until he fell to the ground. Then they dragged the victim into the woods toward a ravine where the attack by Simon and appellant continued. Simon ran away from the scene of the beating, but looked back and saw appellant do something with his hand near the victim’s throat area at which time the victim stopped screaming. When appellant caught up with Simon, appellant was wearing only one shoe. The victim’s body was discovered approximately two days later in a muddy ravine. Among the physical evidence found by investigators in the area of the victim’s body was a shoe covered with blood and hair. The mate to that shoe was found under appellant’s trailer covered with mud. Two persons testified for the State that they were present in a trailer where appellant and Simon spent the first night after they arrived in Gainesville in January 1989. Both witnesses remembered the shoes that appellant was wearing that night, and both testified that the shoe found near the victim’s body was similar to the shoes appellant was wearing. There was also evidence that on the day appellant was arrested, he told two of his friends that he needed to buy a pair of shoes and that for a day or two preceding appellant’s arrest, he had been wearing a pair of rubber work boots.

1. Appellant first enumerates as error the denial of his motion for directed verdict made after the conclusion of the State’s case. Appellant argues that there was insufficient evidence of his guilt because the testimony of Simon was uncorroborated as required by OCGA § 24-4-8. “Although a defendant may not be convicted on the uncorroborated testimony of an accomplice, OCGA § 24-4-8, slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. [Cit.]” Durham v. State, 181 Ga. App. 155 (1) (351 SE2d 683) (1986). The testimony of witnesses with respect to the shoe that was found at the scene connected appellant to the crime. In addition, at least three persons, including the driver of the van and two other passengers, saw two men standing around in the trailer park when the van arrived at the trailer park. Appellant was identified as one of the men. Another witness testified that one of the two men began to follow the victim. The shoe found near the victim’s body had blood and hair on it, and at least one of the hairs matched hair samples taken from the victim’s head. Also, the physical condition of the area where the victim’s body was found, including blood and hairs and drag marks, indicated that two persons were involved in the killing. “ ‘ “The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence. [Cits.]” [Cit.]’ [Cit.] The evidence presented here was sufficient to corroborate the [testimony of Simon], and when viewed in the light most favorable to the verdict, was sufficient for a rational trier of fact to find appellant guilty of [the crimes charged] beyond a reasonable doubt. [Cits.]” Day v. State, 197 Ga. App. 875 (1) (399 SE2d 741) (1990).

Decided February 25, 1992.

Daniel J. Sammons, for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

2. Appellant also contends that the trial court erred in admitting over objection photographs of the victim’s body which showed that parts of his body, including his genital area, had been eaten away by animals after his death and before the discovery of his body. “It is well settled that ‘a photograph relevant and material to the issues is not excludable on the ground that it is prejudicial. [Cit.]’ [Cits.]” Smith v. State, 196 Ga. App. 758, 759 (396 SE2d 809) (1990). The photographs were relevant to show the scratch marks and abrasions on the victim’s body which were consistent with the testimony that the victim had been dragged through the woods. The photographs were taken before an autopsy and reflected the combined forces of appellant and Simon in killing the victim and leaving him exposed to the elements, which naturally include carnivorous animals. Moreover, there was testimony by the medical examiner that the photographs showed post mortem damage to the victim’s body. We find no error with the admission of these photographs. Baxter v. State, 254 Ga. 538 (8) (331 SE2d 561) (1985).

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A1834.
    SISROE v. THE STATE.
    (416 SE2d 141)
   Pope, Judge.

Benny Sisroe appeals his conviction of possession of cocaine with intent to distribute.

1. Defendant first argues the trial court allowed the State to offer into evidence his prior convictions without a showing of similarity between the prior convictions and the crime charged. We agree and reverse defendant’s conviction.

Generally, evidence of prior crimes committed by the defendant is inadmissible because it places the defendant’s character into evidence. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Exceptions to this rule have developed allowing evidence of other crimes committed by a defendant to be admitted for limited purposes such as to show identity, motive, plan, scheme, bent of mind, and course of conduct. Id. Before evidence of prior crimes is admissible, the State must show at a pretrial hearing held pursuant to Uniform Superior Court Rule 31.3 (B) that: (1) the State intends to introduce evidence of the independent act for an appropriate purpose; (2) there is sufficient evidence to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). If the trial court finds this three-prong test has been satisfied, the State must then present to the trier of fact evidence of identity and similarity. Id. at (2) (c) and (d).

During the Rule 31.3 (B) hearing, the State informed the trial court that it intended to introduce into evidence a certified copy of defendant’s prior convictions of possession of cocaine with intent to distribute for the purpose of showing motive and intent. The State offered no evidence of similarity, arguing the certified copy of the convictions alone was sufficient to show similarity. At trial, the State merely submitted into evidence a certified copy of defendant’s prior convictions without offering any other evidence of similarity between the crimes. In Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991), the Georgia Supreme Court held that certified copies of prior convictions by themselves are insufficient to meet the State’s burden of showing similarity between the crimes. Consequently, the trial court erred by holding the State met its burden during the Rule 31.3 (B) hearing and by allowing the State to introduce into evidence certified copies of defendant’s prior convictions.

The State argues that because it did not seek to prove similarity between the defendant’s prior convictions and the drug charge involved in this case, but rather sought to prove the defendant’s intent to commit the crime charged, the Georgia Supreme Court’s decision in Stephens, supra, is inapplicable to this case. In fact, the Stephens opinion is expressly applicable to the situation in which a prosecutor seeks to present evidence of a similar crime for the purpose of showing intent. The Stephens court held “there must be some evidence to establish between the independent crime and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends to establish, by evidence of identity, bent of mind, or intent, the commission of the crime for which [the defendant] is on trial.” (Emphasis supplied.) Stephens, 261 Ga. at 469. Georgia law is now clear that the State must make a sufficient showing of similarity, in the manner set forth above, before prior convictions can be introduced for any purpose, including the showing of intent. Although the State correctly points out the Georgia Supreme Court did not expressly overrule any prior decisions of the Georgia appellate courts which were inconsistent with its holdings in Stephens or Williams, any such decisions to the extent they were inconsistent were overruled by those cases sub silentio.

Decided February 25, 1992.

Underwood & Mathis, Lewis R. Lamb, for appellant.

Britt R. Priddy, District Attorney, for appellee.

2. Our holding in Division 1 makes it unnecessary to consider defendant’s remaining enumeration of error.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1895.
    NeSMITH et al. v. ELLERBEE.
    (416 SE2d 364)
   Pope, Judge.

In December 1988, Maryon Capers Ferguson was diagnosed as having inoperable lung cancer. On January 24, 1989, Ferguson executed his last will and testament in which he made various bequests, including a $10,000 bequest to Chester Capers Ferguson, Jr., his grandson and only surviving heir-at-law, and a bequest of $5,000 to Vonceil NeSmith, a friend who had helped care for Ferguson until his death. Ferguson named his sister Anna Belle Ferguson Ellerbee as the residuary beneficiary. Ellerbee was later appointed to serve as administratrix de bonis non with will annexed of the estate of her brother.

In addition to execution of his will, the undisputed evidence shows that during the week prior to his death, Ferguson requested NeSmith to procure signature cards for five certificates of deposit that Ferguson held. Ferguson signed all the signature cards, instructed NeSmith to sign the signature card for the certificate of deposit held by Liberty Savings Bank and instructed her to have his grandson sign the signature cards for the remaining four certificates of deposit held by Citizens & Southern National Bank. Ferguson told NeSmith he wanted her to have the certificate of deposit held by Liberty Savings Bank and he wished for his grandson to have the remaining certificates of deposit. Ferguson gave NeSmith the receipts issued by the banks when he purchased the certificates of deposit. On February 20, 1989, NeSmith met with Ferguson’s grandson and the grandson signed the signature cards for the certificates of deposit held by the Citizens & Southern National Bank. Neither NeSmith nor Ferguson’s grandson presented the signature cards to the banks holding the certificates of deposit until after Ferguson’s death on February 21, 1989.

As administratrix, Ellerbee brought suit against Vonceil Ne-Smith, Chester Capers Ferguson, Jr., and Judy Ferguson, Chester’s mother, seeking to recover the proceeds of the five certificates of deposit as well as two checks written by Ferguson to NeSmith shortly before his death. Defendants answered that the checks and certificates of deposit were valid and complete gifts from Ferguson to Ne-Smith and Chester Ferguson, and therefore not a part of Ferguson’s estate. Plaintiff moved for summary judgment, and the trial court granted that motion. Defendants appeal from the grant of summary judgment to plaintiff as it concerns the certificates of deposit.

1. Defendants first argue the trial court erred by holding that the purported transfer of the certificates of deposit from Ferguson to Ne-Smith and his grandson was not a valid inter vivos gift. “To constitute a valid inter vivos gift, the following criteria must be met: (1) The donor must intend to give the gift; (2) The donee must accept the gift; and (3) The gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.” OCGA § 44-5-80.

The attempted transfers of the certificates of deposit fail to meet the criteria set forth above for two reasons. First, NeSmith testified during her deposition that Ferguson had no intention to make a present gift of the certificate of deposit. When asked why Ferguson did not just give the certificate of deposit to NeSmith rather than making it a joint account, NeSmith testified: “Well, as long as he lived, the money was his. He had the money, just like he had everything that was in his will, until he died. If he had signed them over, then they would not have been his any longer, but this way they were his until he died.” As the Georgia Supreme Court noted in Guest v. Stone, 206 Ga. 239, 241-242 (56 SE2d 247) (1949), “[a] gift inter vivos operates, if at all, in the donor’s lifetime, immediately and irrevocably; it is a gift executed; no further act of parties, no contingency of death or otherwise, is needed to give it effect. To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos.” (Citations and punctuation omitted.) Thus, Ferguson did not have the requisite intent to make an inter vivos gift.

Also, Ferguson’s acts of signing the signature cards and transferring the documents evidencing the certificates of deposit did not effect delivery of the funds represented by the certificates of deposit. In support of their argument that delivery was completed, defendants rely heavily on our decision in Philpot v. Temple Banking Co., 3 Ga. App. 742 (60 SE 480) (1908). In Philpot, we held that delivery of a certificate of deposit from the donor to the donee constituted a valid gift even though the donor had not endorsed the certificate.

We agree with the trial court’s conclusion that modern banking practices make our decision in Philpot inapplicable to this case. Unlike the donor in the Philpot case, Ferguson did not receive a negotiable certificate of deposit when he deposited his funds in the banks. Instead, he received customer receipts. In support of her motion for summary judgment, plaintiff submitted copies of the receipts in question. All of the receipts from Citizens & Southern National Bank stated that the certificates could be transferred only on the books of the bank. The receipt issued by Liberty Savings Bank stated it was non-transferable. Thus, Ferguson’s act of physically transferring the receipts to NeSmith was of no consequence because ownership of the certificates could not be transferred in that manner.

Furthermore, employees of both Liberty Savings Bank and Citizens & Southern National Bank submitted affidavits in support of plaintiff’s motion for summary judgment in which they stated, inter alia, that the receipts received by Ferguson were nonnegotiable, nonassignable receipts. They also stated that although the signature cards signed by Ferguson, NeSmith and his grandson were not presented until after Ferguson’s death, if they had been presented before his death both banks would have allowed Ferguson to revoke his request to have others added to the certificates. It is well-settled that if the donor retains the power of revocation, a valid inter vivos gift cannot be completed. Guest v. Stone, supra at 242.

2. Defendants also argue that the trial court erred in holding the purported transfers of the receipts for the deposits from Ferguson to NeSmith and his grandson were not valid gifts causa mortis. “To constitute a valid gift in contemplation of death, the following criteria must be met: (1) The object of the gift must be personal property; (2) The donor must be in his last illness or in peril of death; (3) The gift must be intended to be absolute only in the event of death; (4) The gift must be perfected by either actual or symbolic delivery; and (5) The gift must be proved by one or more witnesses.” OCGA § 44-5-100 (a).

Pretermitting the question of whether Ferguson’s transfer of the receipts for the certificates can constitute symbolic delivery within the meaning of OCGA § 44-5-100, we hold that the affidavit submitted by defendants of Reverend Rayfield Boyd was insufficient to prove the gift by a witness. In Reverend Boyd’s affidavit, he stated that he was not in the room during the time that Ferguson discussed the certificates of deposit to NeSmith. The record does not reflect that Ferguson told anyone other than NeSmith what his intentions were regarding the certificates of deposit. The only evidence submitted by defendants that Ferguson intended to transfer the certificates to Nesmith are the signature cards and NeSmith’s testimony. Under almost identical facts, this court held in James v. Elder, 186 Ga. App. 810, 811 (368 SE2d 570) (1988), a trial court is “authorized, if not required,” to dismiss as self-serving the declarations of one who has the most to gain from their admission. Accordingly, we hold the trial court did not err by holding that the purported transfers did not constitute a valid gift causa mortis.

3. Defendants assert the trial court erred in holding that Ferguson’s attempted transfer of the certificates of deposit did not constitute valid gifts of any kind because the trial court relied erroneously on OCGA § 7-1-810. There is no reference to this statute in the trial court’s order. Furthermore, for the reasons set forth in Divisions 1 and 2, the trial court correctly ruled that Ferguson’s attempted transfer of the certificates of deposit did not constitute a valid gift.

4. Defendants did not support their fourth enumeration of error by citation of authority or argument of counsel. It is therefore deemed abandoned pursuant to Rule 15 (c) (2) of this court.

5. Defendants complain that the trial court erred by granting plaintiff’s “renewed” motion for summary judgment and by considering the affidavit of Mickey Parker. After the trial court conducted a hearing on plaintiff’s motion for summary judgment, it wrote a letter to counsel for both parties requesting that the record be supplemented with evidence of the language contained on documentation received by Ferguson from Citizens & Southern National Bank concerning assignability of the certificates of deposit. In response, plaintiff filed a “renewed” motion for summary judgment and submitted the affidavit of Mickey Parker, Vice-President in the Department of Operations for Citizens & Southern National Bank. Defendants first assert it was error for the trial court to entertain a “renewed” motion when an order had not been issued on plaintiff’s previous motion for summary judgment. OCGA § 9-11-56 does not prohibit successive or renewed motions for summary judgment. We have previously held that if a more fully supported motion for summary judgment will cure a deficiency in evidence, it should be the preferred resolution of a case rather than subjecting the parties to the trial process with an inevitable directed verdict. Hogans v. Food Giant, 185 Ga. App. 645 (1) (365 SE2d 496) (1988).

Decided February 25, 1992.

Walter E. Leggett, Jr., for appellants.

Harris & James, William C. Harris, John B. Harris III, for appellee.

Defendants also complain that the affidavit of Parker was submitted after the trial court conducted a hearing on plaintiff’s motion for summary judgment and was not on file for at least 30 days before the trial court issued its order on the motion. As we noted in Howell Mill &c. v. Gonzales, 186 Ga. App. 909, 910 (2) (368 SE2d 831) (1988), “ ‘(e)ven though (OCGA § 9-11-6 (d)) and (OCGA § 9-11-56 (c)) require an opposing affidavit to be served at least one day prior to the summary judgment hearing, the trial court is vested with a discretion to consider affidavits not so served.’ [Cit.]” The trial court did not abuse its discretion by considering the Parker affidavit. Defendants were put on notice by the trial court’s letter requesting the information that the evidence contained in the affidavit would be filed with the court. Moreover, before the trial court issued its decision, defendants filed a response to plaintiff’s “renewed” motion for summary judgment in which they submitted nothing to counter the Parker affidavit.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1899.
    THE STATE v. BRYANT.
    (416 SE2d 368)
   Sognier, Chief Judge.

Robin Bryant was charged with possession of marijuana. The trial court granted his motion to suppress the contraband seized from his car by the arresting officer, and the State appeals.

At the hearing on the motion to suppress, Officer Joe Berardesco of the Clarke County Police Department testified that he was on routine patrol on the afternoon of December 16, 1990, when he saw appellee’s car parked in a shopping center parking lot at an angle so that it occupied two parking spaces. Officer Berardesco parked some distance away and watched appellee and his passenger, and observed that the two men were “watching me pretty regularly from the [car rear view] mirror.” Appellee then drove off and parked in another parking space several rows away, this time occupying only one parking space. Berardesco testified that he followed in his car, parked in a nearby space, and walked toward the passenger side of appellee’s car with the intention of “just telling him . . . could he please park correctly].” When he looked inside the car, Berardesco observed marijuana seeds and leaves on the console. He informed appellee that he was under “investigative detention” because of the contraband and asked him for permission to search the car. Appellee consented, and the ensuing search yielded five marijuana cigarette butts.

The State contends on appeal that the marijuana seeds and leaves should be admitted under the plain view doctrine because no arrest or seizure occurred before Berardesco saw the contraband, and because the evidence was obtained while he was lawfully in the parking lot and saw the contraband in plain view. The plain view doctrine applies when “the police officer . . . had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, 403 U. S. 443, 466 (91 SC 2022, 29 LE2d 564, 583) (1971). Our courts have recognized that this principle extends to the observation of evidence in plain view inside automobiles when the officer was lawfully at the place where he observed the incriminating evidence. State v. Key, 164 Ga. App. 411 (296 SE2d 60) (1982) (officer responded to radio call to investigate suspicious person in car parked on roadside at 2:40 a.m.); State v. Scott, 159 Ga. App. 869 (285 SE2d 599) (1981) (detective looked into parked car identified by suspect in custody as belonging to accomplice and used in commission of burglary).

The trial court concluded that Officer Berardesco’s contact with appellee was unlawful because it was pretextual rather than founded on an articulable suspicion, and as a result the plain view doctrine did not apply. We disagree and reverse.

Decisions of the U. S. Supreme Court have delineated “ ‘three tiers of police-citizen encounters: [1] communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, [2] brief “seizures” that must be supported by reasonable suspicion, and [3] full-scale arrests that must be supported by probable cause. (Cits.)’ [Cit.]” McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114) (1982). A seizure results only if in view of all the circumstances surrounding the incident, a reasonable person would have concluded he was not free to leave. Id. at 27. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” (Citations and punctuation omitted.) King v. State, 161 Ga. App. 382 (1) (288 SE2d 644) (1982).

Decided February 25, 1992.

Kenneth W. Mauldin, Solicitor, Ralph W. Powell, Jr., Assistant Solicitor, for appellánt.

J. Michael Mullís, Vicki C. Affleck, for appellee.

In the case at bar, we find that Officer Berardesco’s approach to the car constituted a simple police-citizen communication with no restraint of liberty. Although he was in uniform, there is no evidence that his weapon was drawn or that he called to appellee and his passenger to halt or otherwise restricted them from driving away. See Verhoeff v. State, 184 Ga. App. 501, 503-504 (362 SE2d 85) (1987). Even though Berardesco had been watching appellee, he did nothing to preclude him from driving away from the shopping center. Accordingly, no reasonable suspicion was required for his approach to the car, and thus he was lawfully in the presence of appellee so as to invoke the plain view doctrine. Consequently, the marijuana seeds and leaves were admissible. State v. Scott, supra at 870 (1).

Moreover, once the officer lawfully observed the marijuana seeds and leaves in plain view, he then had authority to detain appellee and his passenger, as he had probable cause to believe that a crime had been or was being committed. See Moran v. State, 170 Ga. App. 837, 840 (318 SE2d 716) (1984). The additional contraband Berardesco obtained during his subsequent search was admissible because appellee consented to the search and it was not tainted by an improper seizure or arrest. See Dean v. State, 250 Ga. 77, 79-81 (2) (295 SE2d 306) (1982); compare Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988). Given these conclusions, we hold the trial court erred by granting the motion to suppress. See State v. Scott, supra.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A91A1967.
    TURNER v. MCI TELECOMMUNICATIONS CORPORATION.
    (416 SE2d 370)
   Beasley, Judge.

This litigation arises from plaintiff Turner’s attempted purchase from defendant MCI of approximately 160,000 shares of common stock and warrants in a reorganized telecommunications corporation. MCI was to receive the securities in payment as a creditor of the corporation pursuant to a bankruptcy proceeding. The issue is whether either or both of two letters from Turner and his agent to MCI constituted written confirmation of an oral agreement for the sale of the securities under the statute of frauds, OCGA § 11-8-319 (c) of the Uniform Commercial Code-Investment Securities, OCGA § 11-8-101 et seq. The trial court found that it did not and granted summary judgment in favor of MCI.

Central Corporation was indebted to MCI in an amount exceeding $550,000. On November 30, 1988, Central was the debtor in possession in its voluntary petition for relief in the bankruptcy court under Chapter 11 of Title 11 of the United States Code. An amended plan of reorganization to be effective April 14, 1989, proposed that Central’s business be carried on by a reorganized company to be known as Resurgens Communications Group, Inc.

Under such plan, MCI was classified as a general unsecured creditor and was to receive newly issued shares of common stock and warrants in Resurgens. A subclass of general unsecured creditors composed of AT&T and Regional Bell Operating Companies was to receive debt instruments rather than stock in order to avoid a possible legal impediment to receiving stock in another telecommunications company. MCI preferred to be in the subclass so that it too would receive debt instruments, but the plan was not so amended. Confirmation of the plan required affirmative vote of the creditors by April 11.

Marshall & Co., Inc., an investment banking firm and holding company for Marshall & Co. Securities, Inc. (MCSI), was to raise the capital to fund the amended reorganization plan to bring Central out of bankruptcy. Michael P. Marshall was chief executive officer of both Marshall & Co. and MCSI.

MCI was concerned about possible legal conflicts with receiving the proposed securities and also about the market for them. MCI representative Maloy, who was charged with determining whether the economics of the proposed amended plan of reorganization was acceptable to MCI, contacted Nash, the managing director of Marshall & Co. and one of Central’s directors, and asked Nash if he could find someone who would be interested in purchasing the securities. About April 11, Nash telephoned Maloy and told him that he had a potential buyer and the terms of the purchase, ten percent down and the balance in a year. The potential buyer was Turner, an MCSI brokerage customer.

The first of the letters in question was dated April 11, 1989, and sent by Nash to Maloy: “In accordance with our conversations, this letter will confirm that I have obtained, on your behalf, a bona fide offer for the securities you expect to receive in connection with the Central Corporation Debtor’s Disclosure Statement and Amended Plan of Reorganization dated March 23, 1989.

“Generally and in accordance with the information available to me, and assuming the aforementioned plan is adopted, the new company’s securities are issued, John D. Phillips emerges as C.E.O. of Newco and all other matters occur as we know them today, MCI will receive approximately 163,302 shares of Central Newco with an equal number of five year warrants exercisable at $3.50 per share.

“In exchange for the above described securities and within five days from the date such securities are received by MCI, the purchaser will deliver to MCI a check in the approximate amount of $16,330.00 (10%) and a signed promissory note for approximately $146,972.00 (90%). The promissory note will be due 12 months from the date of issuance, will bear interest at the rate of 10% and will be payable with the principle (sic) at maturity. The note will be collateralized with the above referenced securities.

“While Marshall & Company does not guarantee the above transaction, we believe that the purchaser and seller have entered into their commitment and agreement with every intention of closing it based on its aforementioned terms and conditions.”

MCI made no written response to the letter. It cast its vote to accept the amended reorganization plan. On April 21, the bankruptcy court entered an “order on confirmation hearing” which included reduction of the exercise price of the issued warrants, increasing their value to the benefit of the general unsecured creditors.

On May 1, Michael Marshall told Maloy there was another investor interested in the Resurgens securities. It was Marshall, himself. On May 10, five days after the bankruptcy court confirmed the amended plan, Turner learned of Marshall’s interest and called Maloy to discuss the securities.

The next day Turner sent Maloy a second letter, plus a check for $2,500. It stated: “Pursuant to our conversation on May 10, 1989, this letter will confirm our agreement with respect to my purchase of approximately 163,302 shares and warrants in the corporation formally (sic) known as Central Corporation.

“In exchange for the above described securities and within five days from the date such securities are received by MCI and MCI notifies me of such event, I will deliver to you a check in the approximate amount of $16,330 and a signed promissory note for approximately $146,972. The promissory note will be due twelve months from the date of issuance, will bear interest at the rate of ten percent and will be payable with the principal at maturity. I will be personally obligated on the promissory note.

“Enclosed please find a check payable to MCI. in the amount of $2,500 representing earnest money with respect to the above transactions which will be credited toward the down payment. If you agree with the facts as specified above please sign a copy of this letter on behalf of MCI and return it to me in the enclosed envelope. Your prompt attention to this matter is greatly appreciated.

“If you have any further questions or comments please do not hesitate to call.”

In the bottom left corner of the letter was typed:

“MCI Communications, Inc.

Accepted by:_”

MCI never signed the acceptance line or negotiated the check.

On May 24, Maloy sent Marshall, as Turner’s broker, Turner’s $2,500 check and a letter reciting that the check was sent as part of Turner’s offer for the stock MCI would receive and instructing Marshall to return the check to Turner because it did not plan to sell the stock at that time.

Turner sued MCI, MCSI, Marshall & Co., and Marshall individually. Count I alleged that MCI breached its agreement to sell the securities; Count II alleged that MCSI and Marshall & Co. breached its agreement to deliver the securities; Count III asserted that MCSI, Marshall & Co. and Mr. Marshall breached their fiduciary duties to Turner; Count IV maintained that MCSI, Marshall & Co. and Mr. Marshall intentionally interfered with the contractual relations between Turner and MCI; Count V alleged a conspiracy among the four defendants; and Count VI asserted that all defendants had been stubbornly litigious. As to all counts but the last, Turner claimed actual damages in excess of $40,000. Subsequently, Turner voluntarily dismissed the action against all defendants save MCI. MCI counterclaimed for abusive litigation but dismissed the counterclaim following the grant of summary judgment on the main claim.

Turner contends that summary judgment was erroneously granted because both the April 11 and May 11 letters clearly satisfied OCGA § 11-8-319 (c) or at least were sufficient under the statute of frauds to permit a jury to determine whether in fact an agreement for the sale of the securities was reached between the parties. He also complains that the trial court considered only the extrinsic evidence advanced by MCI and points to the consideration itself as indication that the letters were at the least ambiguous, requiring resolution by a jury.

Contract construction is a legal, rather than a factual, matter. Juries resolve questions of fact. OCGA § 13-2-1. Whether or not a writing is an enforceable contract under the securities statute of frauds is likewise a legal question. Anderson Chem. Co. v. Portals Water Treatment, 768 FSupp. 1568, 1577 (I) (M.D. Ga. 1991) engages these principles.

As recognized in that case, OCGA § 11-8-319 “confines the evidence to be considered.” Id. The statute specifies:

“A contract for the sale of securities is not enforceable by way of action or defense unless:

“(a) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity or described securities at a defined or stated price; or

“(b) Delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or

“(c) Within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) of this Code section has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within ten days after its receipt; or

“(d) The party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.”

Thus, in the absence of delivery, payment or admission in judicio, an alleged agreement for the sale of securities is unenforceable unless its existence is reflected in writing which fulfills the requirements of either subsection (a) or subsection (c). Anderson Chemical, supra at 1577 (I), citing Southeastern Waste Treatment v. Chem-Nuclear Systems, 506 FSupp. 944, 949 (N.D. Ga. 1980), and applying subsection (a).

In this case, there was no acceptance of delivery of the securities. Nor was any of the proposed purchase price paid. The only money involved was Turner’s $2,500 check offered solely as earnest money and never negotiated. This is not part performance as contemplated by the statute. See Pelletier v. Stuart-James Co., 863 F2d 1550, 1555 at fn. 6 (11th Cir. 1989).

Neither was there a judicial admission of the existence of an agreement for sale of the securities to Turner. Either one of the letters relied on by Turner, or both taken together, must pass muster under subsections (a) or (c) of the statute.

The linchpin of Turner’s argument is that MCI failed to object in writing to either letter within ten days of receipt, as required by subsection (c). That obligation arises only when the alleged confirmatory writing is sufficient against the sender under paragraph (a). That paragraph mandates that the writing be “sufficient to indicate that a contract has been made for sale of a stated quantity or described securities at a defined or stated price.” Both letters fall short.

Decided February 25, 1992.

David S. Delugas, for appellant.

The April 11 letter on its face is not confirmation of an agreement certain in its material terms. Instead it relates an offer, which fact is expressly stated in the letter’s first sentence and echoed in the last paragraph’s denial of guarantee of the transaction and reference to a future “closing.” Moreover, the vague and indefinite terms recited in the letter characterize it as merely an offer. It makes no reference to Resurgens stock but discusses “Newco” and “Central Newco.” Even if it is accepted that the named entities refer to the reorganized corporation known as Resurgens and to issuance of Resurgens securities, the critical terms of quantity of securities and price are stated only as approximations.

The May 11 letter, on its face, suffers similarly. It addresses projected future acts and again recites the critical elements of quantity and price in merely approximate terms. Its true nature as a unilateral offer rather than a memorialization of a completed agreement is sealed by the blank provided for MCI’s signature to show acceptance, which remained blank. Statement of facts, supra; see, e.g., Great Western Sugar Co. v. Lone Star Donut Co., 567 FSupp. 340 (N.D. Tex. 1983).

Neither of the documents, nor both together, meet the requirements of OCGA § 11-8-319 as a matter of law. They are not enforceable for the sale of the anticipated securities to Turner. See, e.g., Murrey v. Specialty Underwriters, 233 Ga. 804 (213 SE2d 668) (1975). Summary judgment in favor of MCI was mandated.

Turner’s complaint of consideration of unilateral extrinsic evidence is unavailing. First, he did not make such objection below. Rather, he asked the court to take notice of certain unilateral extrinsic evidence thought to be in his favor, namely that Nash was not an attorney at law and thus, the April 11 Nash letter should not be held to a standard of legal precision. Second, even if the trial court was apprised of limited extrinsic evidence in spite of the fact that the documents were facially plain and unambiguous, the transcript of the summary judgment hearing shows that the court’s decision was based on the unadorned language of the documents themselves.

The ultimate determination was correct. A judgment right for any reason will be affirmed. See Rowell v. Parker, 192 Ga. App. 215, 216 (2) (384 SE2d 396) (1989); see also Manderson & Assoc. v. Gore, 193 Ga. App. 723, 732 (7) (389 SE2d 251) (1989).

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

Davis & Walker, Shawn D. Stafford, for appellee.


text:
    A91A1987.
    GLISSON v. MORTON.
    (416 SE2d 134)
   Pope, Judge.

Plaintiff/appellant Mary Joyce Glisson, a licensed practical nurse, was employed by a nursing home in July of 1988 and terminated in March of 1989. Plaintiff brought suit against defendant/appellee William Morton, M.D., alleging that in retaliation for complaints she made relating to defendant’s lack of competence in his care of certain patients at the nursing home, defendant tortiously interfered with her employment by pressuring the management of the nursing home to fire her. The trial court granted defendant’s motion for summary judgment, and plaintiff appeals.

1. We first reject defendant’s argument that this court should not address plaintiff’s sole enumeration of error because plaintiff violated the rules of this court by: (1) failing to provide references to the record in support of the statement of facts and ¿numeration of error contained in her brief, (2) failing to number each page of her brief, and (3) failing to provide citations of authority and argument in support of her enumeration of error. With respect to the first of these grounds, “we note that in Justice v. Dunbar, 244 Ga. 415 (260 SE2d 327) (1979), the Supreme Court held that an appellant’s failure to make specific references to the record or transcript will not, in and of itself, warrant a summary refusal to consider an enumeration of error.” Gerdes v. Dziewinski, 182 Ga. App. 764, 765 (1) (357 SE2d 110) (1987). With regard to the second of these grounds, we know of no authority which would authorize our refusal to consider an enumeration of error because an appellant failed to number each page in his or her brief. Finally, in regard to the third of these grounds, we conclude that plaintiff’s brief is barely sufficient for us to address the issues raised in this appeal.

2. We next address plaintiff’s argument that the trial court erred by considering inadmissible excerpts from plaintiff’s personnel file which were attached as exhibits to defendant’s motion for summary judgment. These excerpts were produced by the nursing home in response to plaintiff’s request for production of documents in accordance with OCGA § 9-11-34. Plaintiff argues that these excerpts should not have been considered because they consisted of unsworn documents and hearsay. We disagree.

The excerpts from plaintiff’s personnel file did not have to be certified or be part of a sworn affidavit to be considered in support of defendant’s motion. OCGA § 9-11-29.1 (a) (5); Jacobsen v. Muller, 181 Ga. App. 382 (3) (352 SE2d 604) (1986). Nor were the excerpts inadmissible as hearsay. OCGA § 24-3-14; Minor v. E. F. Hutton & Co., 200 Ga. App. 645 (2) (409 SE2d 262) (1991). “(T)he court is obliged to take account of the entire setting of the case on a Rule 56 motion. In addition to the pleadings, it will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in Rule 56 (e). [Cit.]” (Citations and punctuation omitted.) Nelson v. Smothers, 164 Ga. App. 112, 113 (296 SE2d 414) (1982). Because the excerpts from plaintiff’s personnel file met the standards prescribed in OCGA § 9-11-56 (e), the trial court did not err in considering the documents filed in support of defendant’s motion for summary judgment.

Decided February 25, 1992.

Arthur J. Shelfer, Jr., for appellant.

Alexander & Vann, William U. Norwood III, for appellee.

We also note that plaintiff has waived her right to object to these excerpts on appeal not only because she failed to raise this objection in the court below (Southern Intl. Pictures v. Friedman, 201 Ga. App. 87 (2) (410 SE2d 51) (1991)), but because she herself relied on excerpts from her personnel file by attaching certain of the documents to her brief and affidavit filed in opposition to defendant’s motion.

3. Finally, plaintiff argues that the evidence of record, specifically plaintiff’s affidavit filed in opposition to the motion for summary judgment, established a genuine issue of material fact for determination by a jury. We disagree. Our examination of the record indicates that plaintiff was terminated from the nursing home because she repeatedly “failed to follow company policy, [f]ederal and [s]tate regulations regarding drug administering, [documentation, and transcribing doctor’s orders.” The generalized arguments contained in plaintiff’s affidavit attempting to set forth a claim of interference with contract are not sufficient in this instance to avoid summary judgment. Collins v. West Am. Ins. Co., 186 Ga. App. 851 (2) (368 SE2d 772) (1988). Accordingly, the trial court did not err in granting summary judgment to defendant.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A2054, A91A2055.
    CAPELLI et al. v. THE STATE.
    (416 SE2d 136)
   Cooper, Judge.

Appellants were arrested and charged with one count of misdemeanor shoplifting. Both appellants were denied court-appointed counsel and proceeded to a non-jury trial without counsel. Appellants were found guilty and sentenced to 12-month probated sentences, 24 hours of community service and fines of $450. Appellants subsequently retained counsel who filed a motion for new trial, which was denied by the trial court. A timely notice of appeal was filed from the denial of the motion for new trial.

1. Appellants first contend that they were denied their right to counsel guaranteed by the United States and Georgia Constitutions. Although the right to counsel extends to misdemeanor prosecutions where imprisonment may result (Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972)), our Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to counsel only where the defendant is sentenced to actual imprisonment. Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982); Johnston v. State, 236 Ga. 370 (3) (223 SE2d 808) (1976); see also Sams v. State, 162 Ga. App. 118 (1) (290 SE2d 321) (1982). Appellants’ sentences do not provide for imprisonment, therefore, their convictions are not constitutionally invalid. Dotson v. State, 179 Ga. App. 233 (3) (345 SE2d 871) (1986).

2. Appellants also contend that they were denied their right to a jury trial. Appellants’ trial was not transcribed, and the record does not contain a written waiver of appellants’ right to a jury trial. During the hearing on appellants’ motion for new trial, the State asked the judge to take judicial notice of the fact that the judge’s practice is to inform defendants of their right to a jury trial and that appellants’ announcement that they were ready to proceed with trial along with the manner in which they conducted their own trial showed that they were aware of their right to a jury trial and knowingly waived that right. “ ‘A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.’ (Citations and punctuation omitted.) [Cits.]” White v. State, 197 Ga. App. 162 (398 SE2d 35) (1990). We have considered the record in its entirety and find that the State has not met its burden of showing that appellants were aware that they waived their right to a jury trial and that appellants personally and intelligently participated in that waiver. Accordingly, the trial court erred in denying appellants’ motion for new trial. Hill v. State, 181 Ga. App. 473 (1) (352 SE2d 651) (1987).

Decided February 25, 1992.

Layng, Auld & Associates, D. Warren Auld, for appellants.

Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellee.

Judgments reversed.

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


author: Birdsong, Presiding Judge.

text:
    A91A2203.
    OTT v. VINEVILLE MARKET, LTD.
    (416 SE2d 362)
   Birdsong, Presiding Judge.

Douglas E. Ott appeals the grant of summary judgment to Vineville Market on its claim he breached his lease for space in Vineville’s shopping center. The record shows that with the consent of the lessor, Ott was assigned the lease of A Flower Cart in March 1989, and that he abandoned the premises in May 1990, but paid rent through June 1990. Later, Vineville released the space to another tenant, but the lease was for $960 less than Ott’s lease.

After attempts to secure payment were unsuccessful, Vineville sued Ott for the rent then due, accelerated future payments, and attorney fees, and then moved for summary judgment on these claims. Ott’s response denied liability because Vineville allegedly breached a lease provision that it would not make any new leases in direct competition with A Flower Cart, and because the accelerated rent payments constituted an unenforceable penalty. The trial court, however, granted Vineville Market’s motion, and this appeal followed. Held:

1. Pretermitting whether Vineville breached the anti-competition clause in the lease is whether such a breach would excuse Ott from performing his obligations under the lease. We find that it would not. OCGA § 13-4-23 provides “[i]f the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” Thus, to constitute a defense to this action, Ott’s nonperformance must have been caused by conduct of Vineville which made his performance useless or impossible. Southern Business Machines v. Norwest Fin. &c., 194 Ga. App. 253, 254-255 (390 SE2d 402). Nothing in this record, however, raises the issue that Vineville made Ott’s performance useless or impossible. Instead, Ott contended only that other stores were in competition with A Flower Cart. Indeed, one of these competitors was in business before A Flower Cart’s lease and thus this clause was inapplicable to that competition. Although nearby competition seemingly could hamper a business’ profitability, Ott’s evidence failed to create a credible issue of fact on whether this competition made A Flower Cart’s operation impossible or useless. Moreover, as Vineville would not bear the burden of proof on this issue at trial, it was not required to disprove this contention affirmatively. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). The trial court did not err in granting summary judgment to Vineville.

Decided February 25, 1992.

Hofstadter & Stevenson, Bruce M. Hofstadter, Sarah S. Harris, for appellant.

Adams & Adams, V. J. Adams, Jr., for appellee.

2. Ott’s contention that the accelerated lease payments constitute a penalty is also without merit. As this was not a liquidated damage provision, there was no need to satisfy the test for enforceability of liquidated damages. See Kurc v. Herren, 196 Ga. App. 331, 333 (396 SE2d 62). Parties may contract for payment of the lease for the entire term less any amounts received if the property is relet. Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466, 467-468 (367 SE2d 317); Hardin v. Macon Mall, 169 Ga. App. 793, 794 (315 SE2d 4).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1556.
    BEALS v. BEALS.
    (416 SE2d 301)
   Cooper, Judge.

This appeal arises out of a dispute between appellant and appellee, both of whom claimed to be the surviving spouse of Melvin Beals, Jr., the deceased.

The deceased was killed in a train accident in August 1990. On October 16, 1990, appellee, as surviving spouse, filed an application for letters of administration on the deceased’s estate, and on November 28, 1990, appellant, unaware of appellee’s application, also filed an application for letters of administration on the estate of the deceased. On December 3, 1990, the probate court granted appellee’s application for letters of administration and, subsequently, appellant filed a petition to set aside the order granting appellee’s application. Appellant alleged that she was the surviving spouse of the deceased; that she and the deceased had lived together as husband and wife since 1978; that two children were born as issue of their marriage; and that appellee’s letters of administration had been procured by appellee’s fraudulent representation that appellee was the surviving spouse of the deceased. The probate court issued a rule nisi ordering appellee to show cause why she should not be removed as administrator and directing that she take no further action as administrator until the issue could be resolved. Appellant and appellee stipulated that appellant’s petition to set aside would be treated as a timely objection to appellee’s petition for letters of administration. Following a three day hearing, during which the probate judge heard testimony and arguments from both parties, the court entered an order denying appellant’s application for letters of administration and petition to set aside.

A discretionary application is generally required from the denial of a motion to set aside. OCGA § 5-6-35 (a) (8). However, since both parties agreed that appellant’s petition to set aside would be treated as a timely objection to appellee’s petition for letters of administration, and since the probate court apparently treated it as such, conducting a full hearing on appellant’s petition and her application for letters of administration, appellant’s direct appeal to this court is allowed. See also OCGA § 15-9-123.

1. Appellant contends in her first enumeration of error that the probate court erred in finding that a common law marriage existed between the deceased and appellee. “ ‘Whether a man and a woman have entered into a common law marriage is a question of fact.’ [Cit.]” Edwards v. Edwards, 188 Ga. App. 821 (1) (374 SE2d 791) (1988). The probate court, as the trier of fact, found that appellant did not meet her burden of proving that appellee was not the common law spouse of the deceased. “ ‘The decision of the trial court as to the fact question of the existence vel non of a common-law marriage, should not be disturbed on appeal if there is any evidence to support its finding. (Cits.)’ [Cit.]” Brown v. Carr, 198 Ga. App. 567, 568 (402 SE2d 296) (1991). There is evidence in the record that appellee and the deceased decided to live together as husband and wife in 1971; that they purchased a house together in 1972 and both lived in that house until 1978; that during the time they lived together, appellee referred to herself as Mrs. Beals and represented to people that she was the deceased’s wife; that the deceased introduced appellee to people as his wife; that the deceased and appellee maintained a joint bank account; that they purchased cars together and signed contracts together; that two children were born to the deceased and appellee; and that although appellee filed for a divorce on two occasions, both complaints were dismissed without prejudice and no final decree of divorce was ever entered. Appellant argues that evidence such as the filing of tax returns by the deceased as a single person and appellee’s use of the name Patricia Johnson when filing her tax returns and applying for Aid for Families with Dependent Children, is inconsistent with the existence of a marriage between the deceased and appellee. While such evidence should be considered, it does not necessarily overcome direct proof of the existence of a common law marriage between the deceased and appellee. See Evans v. Marbut, 140 Ga. App. 329, 331-332 (231 SE2d 94) (1976). We find that there was ample evidence that a common law marriage existed between the deceased and appellee and that said marriage remained undissolved at the time of the deceased’s death.

2. In her second enumeration of error, appellant argues that even if a common law marriage did exist between appellee and the deceased, appellee was not entitled to be administrator of the deceased’s estate. Appellant contends that a separation agreement signed by the deceased and appellee in 1984 bars appellee from acting as administrator. Appellant relies on Simpson v. King, 259 Ga. 420 (383 SE2d 120) (1989). In Simpson, the decedent and the appellee were married for approximately two years before they separated. Subsequently, the decedent began living with the appellant and filed for a divorce from the appellee. A final alimony and property settlement agreement was entered into between the decedent and the appellee. However, before a final decree of divorce was entered, the decedent died. The appellant objected to the appointment of the appellee as administratrix of the decedent’s estate as the surviving spouse of the decedent. Although the Supreme Court acknowledged that the appellee could technically be considered the surviving spouse because the divorce was not final, the court determined that the appellee could not inherit from the decedent’s estate, stating: “[The settlement] agreement settled ‘all issues of alimony’ between the parties. They negotiated the agreement, signed it, and complied with it as reflected in the court order. Thus, the appellee is barred from receiving anything further from the estate ‘by virtue of the marriage contract. . . .’ OCGA § 19-6-7.” Simpson v. King, supra at 422. The Supreme Court also held that the appellee should not have been named administratrix since she had no interest in the decedent’s estate as a surviving spouse. The probate court found that Simpson was not controlling since the separation agreement entered into between the deceased and appellee did not address the issue of alimony. We agree that Simpson is not controlling because of material factual distinctions. In the case sub judice, the separation agreement was signed by the parties on the same date that appellee filed her second complaint for divorce. The agreement contained mutual promises regarding visitation, child support and the division of the real and personal property of the parties yet did not specifically address any matters regarding alimony or spousal maintenance. Also, the separation agreement was never made an order of the court as in Simpson. Furthermore, the record reflects that in addition to dismissing the second complaint for divorce, appellee continued to have intimate relations with the deceased through 1990, the year that the deceased died, even though the deceased no longer resided in the marital home. There is also evidence that the deceased made statements to the effect that he did not intend to divorce appellee. Thus, in addition to the halting of the divorce process, neither the deceased nor appellee showed any intention to proceed with the divorce. In contrast, all the evidence in Simpson indicates that, but for the deceased’s intervening death, the divorce would have been final. Accordingly, unlike Simpson, we cannot conclude that the only reason appellee can be considered a surviving spouse is because a final divorce had not been entered and find no error with the trial court’s appointment of appellee as administrator.

Decided January 24, 1992

Reconsideration denied February 26, 1992

Cuffie & Smith, Thomas F. Cuffie, Rufus Smith, Jr., for appellant.

Prince A. Brumfield, Jr., Burge & Wettermark, Michael J. Warshauer, for appellee.

Judgment affirmed.

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


text:
    A91A1608.
    DECATUR COMPANY v. BOWEN.
    (416 SE2d 304)
   Cooper, Judge.

This appeal arises out of a dispute between appellant and appellee over whether appellee is entitled to a percentage of the proceeds of a condemnation award. A bench trial resulted in a judgment in favor of appellee.

Between 1984 and 1990, appellee and Frank Tetterton (“Tetterton”) each owned 50 percent of Atlanta Commons, Ltd. (“Atlanta Commons”), a corporation which owned several parcels of land in Gwinnett County. In 1987 or 1988, the Gwinnett County School Board (hereinafter “Board”) implemented a project to acquire land suitable for the construction of two new schools. Appellee, the president of Atlanta Commons, was approached by the Board which was interested in a parcel of property owned by Atlanta Commons. Appellee showed the Board the property, provided the Board with engineering drawings and engaged in numerous discussions with the Board about the property. Although the Board looked at other sites, the Atlanta Commons property was considered to be the best site for the proposed schools. In the latter part of 1989, appellee met with Alton Crews (“Crews”), the Board’s superintendent of schools, and reached an agreement regarding the purchase of approximately 27 acres of property belonging to Atlanta Commons. In a letter dated November 1, 1989 from Crews to appellee, Crews wrote: “The [Board] meeting in regular session . . . agreed to purchase approximately 28 acres, located on Taylor Road and owned by Atlanta Commons, Inc. for $26,000 per acre. This sale is contingent upon voter approval of a school bond sale, which will be placed on the ballot early in February 1990. Payment will be made after the bond sale has been legally validated.” (Indention omitted.)

Several events happened in early 1990 which precipitated the dispute between the parties. In a letter dated January 17, 1990, from Robert Gann (“Gann”), the assistant superintendent of schools, to Atlanta Commons, the Board again expressed an interest in purchasing 27.4 acres of land owned by Atlanta Commons and offered $26,000 per acre. That letter requested a reply from Atlanta Commons by January 29, 1990. Also, in early 1990, appellee and Tetterton began negotiating with each other to dissolve their business relationship. In February 1990, the school bond referendum failed, and the Board began exploring other possibilities to finance the construction of the schools. On March 2, 1990, as part of the dissolution of appellee and Tetterton’s business relationship, appellee, as president of Atlanta Commons, executed a warranty deed transferring land owned by Atlanta Commons (including the parcel in which the Board expressed interest) to appellant, a Georgia general partnership. On March 5, 1990, appellee and Tetterton signed a letter agreement which provided that as material consideration for the transfer of the property described in the warranty deed, Tetterton and appellant “shall pay to [appellee] ten percent of the gross selling price at closing of any contract between the [Board] as evidenced by an Agreement attached hereto as Exhibit ‘A’ and the letter of intent from [Crews] dated November 1, 1989, on approximately 28 acres, which amount shall be payable if, as, and when the closing of the sale occurs.” Exhibit “A” constituted an agreement (hereinafter “Commission Agreement”) between appellee, Tetterton and appellant which provided that appellee would be paid a commission of ten percent of the gross selling price “at the time any transaction is closed between the [Board] and Tetterton and [appellant].” Paragraph 2 of the Commission Agreement provided: “In the event that no contract is entered into on or before June 30, 1990, between the [Board] and Tetterton and [appellant] . . . this agreement shall be void, and [appellee] shall not be entitled to any payment thereafter on account of any sale .... If no such contract has been entered into by June 30, 1990, this agreement may be terminated of record by a sworn affidavit of J. Anthony McCullar, stating the necessary facts to demonstrate no such contract has been entered into. . . .” Sometime prior to the end of March 1990, Gann went to see Tetterton and stated that the Board was going to offer $26,000 per acre for the land. Tetterton inquired of Gann about the possibility of the Board putting a road through the property as part of the sale, and Gann replied that he did not think that was a problem, but he would have to take the proposal back to the Board. Tetterton did not hear any more from Gann until he received a letter dated March 28, 1990 from Gann, stating that the bond referendum had failed and the Board was declining Tetterton’s counteroffer and withdrawing its initial offer to purchase the property. The Board expressed no further interest in the property until November 1990, at which time the Board was only interested in building one new school which required approximately 16 acres of land. Tetterton then began negotiating with the Board for the sale of a smaller parcel of property. However, a sale of the property was never consummated, and on January 30, 1991, a condemnation action was filed by the Gwinnett County School District to acquire approximately 16 acres of land from appellant. On February 15, 1991, J. Anthony McCullar, the managing partner of appellant, filed an affidavit pursuant to paragraph 2 of the Commission Agreement setting forth that no contract between the Board and either Tetterton or appellant was entered into as specified in paragraph 1 of the Commission Agreement. On February 19, 1991, the special master entered an award of $524,700, of which $448,000 represented the actual market value of the condemned property and $76,700 represented the consequential damages to the remaining property. The award was subsequently increased by $6,000 for an easement received by the Board, and following a consent order between the parties the total amount paid into court was $581,542.80. Appellee filed a response to the condemnation petition, claiming a portion of the proceeds which he asserted were due to him under the terms of the Commission Agreement. Appellant maintained that appellee was not entitled to any monies under the Commission Agreement because no contract for the sale of the land had been entered into with the Board prior to June 30, 1990. Following a hearing, the trial court entered an order awarding appellee $58,154.28, an amount representing ten percent of the condemnation award.

The trial court found two bases upon which appellee could recover. First, the trial court found that in March 1990, the Board offered to conclude the purchase pursuant to the November 1, 1989 letter and that instead of accepting the offer, Tetterton made a counteroffer which “forced [the Board] to wait until the filing of this civil action to condemn the property.” The trial court then concluded that since appellant, and Tetterton had the opportunity to conclude the sale prior to June 30, 1990, they were estopped from asserting that no contract was in existence prior to June 30, 1990. Second, the trial court found that the November 1, 1989 “letter agreement” was not terminated since appellant did not file the termination affidavit referred to in paragraph 2 of the Commission Agreement until February 15, 1991.

1. Appellant first contends that the trial court erred in finding that it was estopped from asserting that no contract existed prior to June 30, 1990. “ Tn a bench trial the court sits as the trier of fact and his findings “shall not be set aside unless clearly erroneous. . . .” (Cit.) The “clearly erroneous” test is the same as the “any evidence rule.” (Cit.) Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them. (Cit.)’ [Cits.]” Gulf Winds, Ltd. v. First Union Bank, 187 Ga. App. 383, 385 (1) (370 SE2d 508) (1988). The record does not support the trial court’s finding that in March 1990 appellant refused to conclude the Board’s offer and forced the Board to file a civil action to condemn the property. Tetterton testified that when he discussed the Board’s offer with Gann, he inquired about the possibility of the Board putting a road through the property. Tetterton emphasized to Gann that he did not want to lose the deal, and Gann informed Tetterton that he did not see any problem but he would have to discuss it with the Board. The Board subsequently responded that it was withdrawing its offer and that it did not accept the counteroffer. The record does not indicate that the Board’s decision to withdraw its offer was due to Tetterton’s inquiry about the road. Nor does the record support the finding that Tetterton refused the Board’s offer. Rather, the record reflects that Tetterton negotiated with Gann in good faith to bring about a sale of the property which unfortunately did not lead to a contract. “ Tn order for an estoppel to arise, there must generally be some intended deception, or gross negligence amounting to constructive fraud by which another is misled to his injury. (Cit.)’ [Cit.]” Armstrong v. Cal. Fed. S & L Assn., 192 Ga. App. 508, 510 (3) (385 SE2d 113) (1989). Furthermore, “‘[t]he doctrine of estoppel does not obtain unless there be injury to one party or advantage to the other, resulting from the acts or declarations of the person to be estopped.’ [Cit.]” Id. There is no evidence of any intended deception or fraud on the part of Tetterton or that any of Tetterton’s actions were an attempt to thwart a contract on the property from being executed until after June 30, 1990. Accordingly, the first basis of the trial court’s ruling must fail.

2. Similarly, we find no factual basis for the trial court’s conclusion that appellee was entitled to recover under the Commission Agreement because of appellant’s delay in filing the termination affidavit. The Commission Agreement clearly provided that “in the event that no contract is entered into on or before June 30, 1990 . . . this agreement shall be void.’’' (Emphasis supplied.) Such language is clear, unambiguous and capable of only one interpretation, and no construction by the court was either required or permissible. Hopkins v. Hopkins, 186 Ga. App. 530, 531 (367 SE2d 825) (1988). Even if the trial court found an ambiguity or conflict was created by the provision allowing the agreement to be “terminated of record” by the filing of an affidavit, the evidence adduced at the hearing reflects that the purpose of that provision was merely to provide a mechanism for terminating the agreement on the record without having to obtain appellee’s signature. Furthermore, since the clause voiding the contract appeared in the contract before the clause relating to the affidavit, it would prevail in the event of a conflict. See Holtzclaw v. City of Dalton, 189 Ga. App. 650, 652 (377 SE2d 196) (1988).

Decided January 27, 1992

Reconsideration denied February 26, 1992

Peterson, Dillard, Young, Self & Asselin, Joel L. Larkin, for appellant.

Webb, Tanner & Powell, Anthony O. L. Powell, R. Jackson Wilson, for appellee.

3. Appellant also contends that the trial court erred in entering a judgment in favor of appellee for ten percent of the amount paid into court rather than ten percent of the amount awarded by the special master for the condemned property. In light of our reversal, we find it unnecessary to address this enumeration of error.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A91A2079.
    PAHNKE v. THE STATE.
    (416 SE2d 324)
   Andrews, Judge.

Pahnke was found guilty in a bench trial of misdemeanor theft of services. His sole enumeration of error on appeal is that the record fails to reflect he knowingly and intelligently waived the right to a jury trial. Though not raised below, this issue may be asserted for the first time on appeal. White v. State, 197 Ga. App. 162 (398 SE2d 35) (1990).

Pahnke is represented by counsel on appeal, but proceeded pro se in the trial court. At arraignment, the defendant pled not guilty and entered a written demand “retaining my right as a U. S. citizen to have a jury trial. ...” The case was assigned by the court for a jury trial scheduled for August 26, 1991. Thereafter, the initial record transmitted to this Court, which did not include a transcript of any portion of the proceedings, shows only that the defendant was found guilty in a bench trial on July 24, 1991.

After the initial record was transmitted on appeal, on the State’s motion, a hearing was scheduled in the trial court pursuant to OCGA § 5-6-41 (f) and (g) to perfect the record as to what transpired in court with respect to the defendant’s right to a jury trial. State v. Graham, 246 Ga. 341, 343 (271 SE2d 627) (1980). “Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth.” OCGA § 5-6-41 (f). “Any issue as to the correctness of the record is to be resolved by the trial court, for that court retains jurisdiction even after the case is docketed in this Court to add additional record, and is still the final arbiter of any differences in the preparation of the record.” (Citations and punctuation omitted.) Pelletier v. Schultz, 157 Ga. App. 64, 68 (276 SE2d 118) (1981).

Pursuant to the hearing at which the defendant was represented by appellate counsel, a supplemental record was certified and transmitted to this Court. The supplemental record does not reflect that the parties were able to agree as to the correctness of what occurred in the trial court. See OCGA § 5-6-41 (f), (g). “In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, he shall enter an order stating that fact.” OCGA § 5-6-41 (g). Smith v. State, 260 Ga. 274, 276 (393 SE2d 229) (1990); Patterson v. State, 233 Ga. 724, 730-731 (213 SE2d 612) (1975).

The supplemental record shows that at the conclusion of the hearing the trial judge resolved any dispute as to the record by giving his recollection of what had transpired in the trial court as follows: “My dockets . . . well calendar would be more appropriate, they’re prepared by Mrs. Miller or by the Clerk’s office, reflect Mr. Pahnke appeared for arraignment on July the 12th. The notation I made at that time was that Mr. Pahnke had demanded a jury trial and that it had been scheduled for August the 26th. My personal recollection is that he presented a written demand for jury trial because I believe I recall him presenting some document to me, which would comport with our statutory rules. The State Court of Stephens County is, of course, created by special act of the Legislature and jury trials are not provided unless there is a written demand at or before arraignment. However, the Court as a matter of practice has always allowed an oral demand to be sufficient. In this case, I believe Mr. Pahnke went so far as to write out a written demand for a jury trial. The next occasion I had to know anything about the case was on a non-jury trial date subsequent to that date. Again, looking at my calendar as is usual, I received that calendar only on the morning of trial. It is very unusual for me to look at a calendar before I take the bench, but the calendar for Wednesday, July 24th, had Mr. Pahnke’s case on page three of the calendar and when the case was called, I inquired because I had remembered Mr. Pahnke had presented a written demand for a jury trial. That was a little bit unusual for somebody who is not represented by counsel. It stuck out in my mind, so I specifically inquired of him whether or not he wanted his case tried before a jury or before me. Mr. Pahnke said he wanted me to try the case, or something to that effect. ...”

“I advised Mr. Pahnke I knew some of the witnesses. I did not know anything about his case, but that I did know some of the witnesses and that ... he was certainly entitled to a jury trial or non-jury trial and he said he wanted a non-jury trial, so we proceeded to have a non-jury trial.” The trial judge gave counsel for the defense and the State the opportunity to question him about his recollection. Neither party had any questions. The trial court then ordered that the proceedings be transcribed and submitted by the Clerk as part of the record on appeal.

The issue is whether the record, as supplemented, supports the conclusion that the defendant “personally and intelligently participate [d] in the waiver of the constitutional right to a trial by jury.” (Citation omitted.) Hill v. State, 181 Ga. App. 473 (352 SE2d 651) (1987). “When the purported waiver of the right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” (Citations and punctuation omitted.) White, supra at 162.

The record affirmatively shows that the defendant was aware of his right to a jury trial because he had personally filed a written pro se demand for trial' by jury reciting that right. The trial judge, remembering that the defendant had filed a written demand for a jury trial, reminded the defendant that he was entitled to a trial by jury, and asked him if he wanted a jury or non-jury trial. The defendant elected to have a non-jury trial. The defendant personally made a knowing and intelligent waiver of his right to a jury trial.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided February 12, 1992

Reconsideration denied February 26, 1992

William R. Hurst, for appellant.

Jonathan Pahnke, pro se.

James E. Cornwell, Jr., Solicitor, for appellee.


text:
    A91A2089.
    HEATH v. L. E. SCHWARTZ & SONS, INC. et al.
    (416 SE2d 113)
   Andrews, Judge.

Heath received a jury verdict against L. E. Schwartz & Sons, Inc. (Schwartz) in the amount of $516,961.41 for personal injuries incurred in an automobile accident. Heath appealed and this Court affirmed the judgment in Heath v. L. E. Schwartz & Sons, 199 Ga. App. 452 (405 SE2d 290) (1991). After the remittitur from this Court was filed in the trial court, Heath’s motion for postjudgment interest on the award was denied by the trial court, and he filed this direct appeal.

1. First, we conclude that the trial court’s order denying postjudgment interest was a final order clarifying an earlier final judgment and is directly appealable. See Nodvin v. West, 197 Ga. App. 92, 93 (397 SE2d 581) (1990).

2. The jury award was made the judgment of the trial court on September 1, 1989, which started the accrual of interest thereon at the rate of 12 percent per year. West v. Jamison, 182 Ga. App. 565, 569 (356 SE2d 659) (1987); OCGA § 7-4-12. On November 22, 1989, Schwartz’s attorneys hand-delivered a certified check in the amount of $530,898.13, along with a letter, to counsel for Heath. The check was made payable to Heath, his attorney, Blue Cross/Blue Shield Medicare and Medical Center of Central Georgia. The accompanying letter stated that the check was tendered in full satisfaction of the judgment in the case and all accrued interest through the date of the letter; that the tender was unconditional and continuing; and that Schwartz was ready, willing and able to pay the full amount of the debt as evidenced by the enclosed check. On December 1, 1989, counsel for Heath returned the check with a letter stating that “[w]e are not in a position to accept your check for a number of reasons, mainly because we are appealing the case.” Thereafter, the record reflects that subsequent to the decision of this Court affirming the judgment, the trial court entered an order on July 2, 1991 denying Heath’s motion for postjudgment interest and finding that the November 22, 1989 tender was unconditional and continuing, and that Schwartz had at all times been ready, willing and able to pay the amount tendered. Heath’s motion was not made a part of the record on appeal, nor is there any transcript or other evidence showing the substance of the motion or any proceedings in the trial court.

On appeal, Heath claims the trial court erred by determining that the tender stopped the accrual of postjudgment interest because the tender was neither continuing nor unconditional and was otherwise invalid. Although he asserts a number of arguments in support of the claimed error, this Court will address only those issues which the record reflects were properly raised in the trial court. Nodvin, supra at 95. The burden is on the appellant to show error by the record. Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990). The only argument which the record arguably shows was raised in the trial court in support of Heath’s motion is the claim that there was no unconditional tender because acceptance of the money in satisfaction of the judgment was conditioned on a waiver of Heath’s right to appeal the judgment.

To stop the running of interest on the judgment, Schwartz was required to make a valid tender of payment on the debt. Vitner v. Funk, 182 Ga. App. 39, 44 (354 SE2d 666) (1987). “A valid unconditional continuous tender stops the running of interest.” Corr v. Aaron Rents, Inc., 136 Ga. App. 643, 644 (222 SE2d 150) (1975); Fortson v. Strickland, 23 Ga. App. 607, 608 (99 SE 147) (1919). “It is a general rule that a tender must be certain and unconditional, and must be in full of the specific debt; and, in order to prevent the running of interest, the tender must be continuing. The fact that it may be made and refused is not sufficient to stop the running of interest. It must appear that the party making the tender has at all times been ready, willing, and able to pay the amount tendered.” Bank of LaFayette v. Giles, 208 Ga. 674, 680 (69 SE2d 78) (1952); Fitzgerald v. Vaughn, 189 Ga. 707, 709-710 (7 SE2d 78) (1940).

Heath correctly contends that he had a right to appeal the favorable judgment, and that interest on the judgment was not abated by the appeal. Henley v. Mabry, 125 Ga. App. 293 (187 SE2d 309) (1972). He also correctly asserts that acceptance of full payment on the judgment would constitute a waiver of his right to have it reviewed on appeal. J & F Car Care Service v. Russell Corp., 166 Ga. App. 888 (305 SE2d 504) (1983). Based on these principles, Heath concludes that Schwartz failed to make an unconditional tender in that acceptance of the money was conditioned on a waiver of his right to appellate review of the judgment. The only legal conditions which may be attached to a valid tender are either a receipt for full payment or a surrender of the obligation. Heath v. Miller, 205 Ga. 699, 701 (54 SE2d 432) (1949). We find no improper condition attached to the tender at issue. The tender was made in an amount calculated to fully satisfy the judgment, and did not lose its status as an unconditional tender simply because as a legal consequence of acceptance Heath would have no longer been entitled to appeal the judgment. Compare Adcock v. Sutton, 224 Ga. 505, 507-508 (162 SE2d 732) (1968) (tender made as “full payment,” but for an amount less than the debt, attached an improper condition and failed as an unconditional tender).

Decided February 12, 1992

Reconsideration denied February 26, 1992.

Reynolds & McArthur, Charles M. Cork III, for appellant.

Jones, Cork & Miller, Rufus D. Sams III, Thomas W. Joyce, for appellees.

We find no merit in the asserted error, nor does the record otherwise demonstrate that the trial judge erred by determining that there was a valid tender which abated the accrual of interest.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       Although not the exclusive means of making a valid tender, payment of funds into the registry of the court in the full amount of the debt has been found to constitute a valid tender within the meaning of OCGA § 13-4-24. Bank of Early v. Broun, 156 Ga. App. 445 (274 SE2d 802) (1980). Compare OCGA § 9-11-67.


text:
    A91A2168.
    McLELLAND v. THE STATE.
    (416 SE2d 340)
   Andrews, Judge.

Defendant was convicted of one count of child molestation between February 1, 1989 and March 31, 1989. He appeals, citing 18 enumerations of error.

Viewed in favor of the verdict, the evidence showed that the eight-year-old girl was staying overnight with Betty, defendant’s mother. Defendant and his wife were also living there. The child was sleeping on the sofa while defendant was watching television. She described two incidents of defendant placing his “privacy” in hers during that evening. She was seen by a doctor on April 4, suffering from a urinary tract infection and strep throat. Because her condition worsened, she was hospitalized and, upon further examination, found to have suffered a tear between her anus and vagina. The doctor opined that the injury occurred within a week of his seeing her and that the insertion of an adult male penis could have caused such a tear. The child was questioned concerning molestation during her hospitalization and said a big man with a mustache did it and on a separate occasion that a Mexican did it. At trial, she said she was referring to defendant when she mentioned the man with the mustache and that a Mexican had messed with her on a separate occasion. She also said that she had fallen on a boy’s bicycle and hurt herself. Her mother reported that she had found the child locked in a house with a 13-year-old boy on April 3, although the child denied it. In September 1989, defendant and the child’s mother were involved in a dispute which resulted in defendant’s incarceration on a charge of obstructing an officer. After being told defendant was locked up, the child told her mother that defendant had molested her. She said he had threatened her about telling. Defendant testified that he had no recollection of the incident, but denied wrongdoing.

1. Defendant’s first enumeration, alleging error in the court’s denial of his motion for independent psychological examination of the victim, is controlled adversely to him by Gorski v. State, 201 Ga. App. 122, 123 (2) (410 SE2d 338) (1991).

2. On the morning of trial, defendant filed a motion to declare OCGA § 24-3-16 unconstitutional as violative of the federal Sixth Amendment. The statute has previously been upheld in the face of such a challenge. Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987); see White v. Illinois, _ U. S. __ (112 SC 736, 116 LE2d 848) (1992). Further, here the State called the child as a witness and she was fully cross-examined. There was no error. Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987).

3. During voir dire, defendant made a motion to disqualify for cause a juror who was the daughter of a DFCS worker involved in the case. The motion was based on defendant’s contention that the worker had previously been identified as the prosecutrix in the case under OCGA § 15-12-163 (a) (4). This was incorrect and thus presents no basis for review. As noted by defendant after denial of his motion, the worker was seated at the table with the prosecutor during jury selection, but did not testify or otherwise participate in the trial. This was not cause for disqualification. Davis v. State, 194 Ga. App. 482, 485 (3) (391 SE2d 124) (1990). In addition, the record does not indicate that the juror was seated on the panel.

4. The ruling alleged as error in the fourth enumeration was later modified to allow evidence of allegedly false accusations by the victim and therefore presents nothing for review. Similarly, there was no blanket ruling by the trial court that no false accusation evidence would be admitted, only the statement by the court that it would rule as evidence was tendered. Defendant later stated that he was seeking only to introduce inconsistent statements by the victim as to the perpetrator of the charged crime, not any other incidents. This was allowed and no error appears.

5. The objection voiced in enumeration 6 was not made below and will not be considered here for the first time. Cooper v. State, 188 Ga. App. 297 (3) (372 SE2d 679) (1988).

6. Enumerations 7 and 8 deal with the testimony of Ms. Winn, a mental health counselor who saw the victim both before and after these events. She testified concerning differences in behavior of the victim before and after her hospitalization. On cross-examination, defendant posited several explanations for this change in behavior, including sibling rivalry. On re-direct, the State asked Ms. Winn if she would attribute this change to sibling rivalry to which she responded negatively. Defendant’s first objection to this re-direct was “I. . . object . . . and ask that that answer be stricken from the record.” No basis was given for that objection and it presented nothing for the court to address. See Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987).

Thereafter a motion was made to strike the answer because Ms. Winn had not been qualified as an expert. Pretermitting the fact that defendant had originally opened the door to this area of inquiry, the court correctly ruled that the status of the witness as lay or expert would go, not to admissibility, but to credibility. OCGA §§ 24-9-65; 24-9-67; O’Kelley v. State, 175 Ga. App. 503, 507 (3) (333 SE2d 838) (1985).

7. Defendant’s ninth and tenth enumerations allege error in the court’s disallowance of the testimony of the custodian of the medical records relating to the child’s hospitalization and the court’s refusal to include the medical records in the record for appellate review.

After the custodian testified that neither the prosecutor nor defense counsel had previously seen any of the records, the court excused the jury and inquired what it was that defendant wished to show by the records. Counsel acknowledged never having seen the records before, but expressed his belief that they contained a statement by the victim’s mother to an unidentified hospital employee indicating that someone else had molested the child. This statement, the only evidence which defendant sought from the records, was inadmissible hearsay. In this context, inclusion of the entire hospital record was unnecessary and there was no error.

8. The eleventh enumeration objects to the court’s allowing a defense witness to answer on cross-examination the following question: “Did [defendant’s mother] ever tell you anything, one way or the other, about where she was living during this time period, which would have been between the months of February and April of last year?” The question, phrased to address the occurrence of a conversation, not its content, was not subject to the hearsay objection made below and argued here. When the substance of the conversation was gone into, defendant made no further objection and there is nothing in this regard for our review.

9. Defendant presented evidence, much of which was directed toward proving that defendant’s mother was not staying in the house during the time in question. In rebuttal, the State recalled the case investigator and asked if she had discussed with the mother her whereabouts. Defendant objected to her testimony on the ground it was not proper rebuttal. It is within the court’s discretion to allow rebuttal evidence. Turner v. State, 258 Ga. 97, 101 (5) (365 SE2d 822) (1988); Horne v. State, 192 Ga. App. 528, 529 (3) (385 SE2d 704) (1989). Additional evidence may be offered by the State even if not strictly in rebuttal of presented defense evidence. Id. There was no error.

10. After the jury began deliberations, they requested copies of the testimony of certain witnesses, which the court refused without objection by the defendant. No objection having been voiced below, the thirteenth enumeration presents nothing for review. As acknowledged by defendant, such a request is within the discretion of the court. Morris v. State, 254 Ga. 273, 274 (2) (328 SE2d 547) (1985).

11. Enumerations 14 and 15 deal with the court’s giving of the Allen charge (Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896)) and failure to grant defendant’s motion for mistrial based on his claim the jury was deadlocked. After the jury had deliberated for several hours, the court inquired as to the count of any vote. The count was reported to the court but is not reflected in the record. The court later asked if the jury was making progress and was advised it was not. At that point, the court did give the charge which was objected to as burden shifting. The charge given was not error. Renner v. State, 260 Ga. 515, 519 (7) (397 SE2d 683) (1990); Smith v. State, 187 Ga. App. 322, 324 (6) (370 SE2d 185) (1988).

The motion for mistrial was renewed on the basis of the claimed deadlock. In addition to the fact that there is no showing that the jury was deadlocked, a motion for mistrial based on the length of a jury’s deliberation is within the sound discretion of the trial court and the court is not bound by the jury’s feeling that it is hopelessly deadlocked. Cf. Romine v. State, 256 Ga. 521, 524 (1) (350 SE2d 446) (1986).

12. Defendant’s sixteenth enumeration contends that denial of his request to reargue to the jury after giving of the objected to charge was error. There was no error. See Anderson v. State, 247 Ga. 397, 399 (3) (276 SE2d 603) (1981); Turner v. State, 180 Ga. App. 141 (1) (348 SE2d 572) (1986).

13. Contending that he was denied a presentence hearing, defendant asks that the case be remanded. The record, however, does not indicate that a hearing was not provided. After the jury had been polled, the court inquired if defendant or his counsel “have any reason as to why the Court should not pass sentence ... at this time?” Counsel responded that there was no legal reason sentence should not be imposed. The court then inquired if defendant or his counsel wished to make any remarks. No request was made at that time for a continuance to produce witnesses and statements were made by counsel and defendant. The court having complied with OCGA § 17-10-2 (a), there is no need for remand under these circumstances. Thompson v. State, 195 Ga. App. 18, 21 (3) (392 SE2d 732) (1990); compare Raymond v. State, 168 Ga. App. 487, 488 (309 SE2d 669) (1983).

Decided February 14, 1992

Reconsideration denied February 26, 1992

Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

J. Brown Moseley, District Attorney, for appellee.

14. Finally, defendant contends his motion for new trial on the basis of delay in completion of the transcript should have been granted.

Trial was completed May 24, 1990 and the motion for new trial amended to include this ground on April 5, 1991. The transcript was filed on April 23, 1991. The notice of appeal was filed August 9, 1991, after the court’s denial of the motion for new trial on July 11, 1991. The transcript was therefore timely filed under OCGA § 5-6-42. Defendant has not shown that he was denied due process by the 11-month period between conviction and filing. Thayer v. State, 189 Ga. App. 321, 326 (6) (376 SE2d 199) (1988); Graham v. State, 171 Ga. App. 242, 249 (7) (319 SE2d 484) (1984).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       No questions were asked regarding the content of the conversation and defendant’s hearsay objection was meritless.

       Although referred to as the Allen charge, the charge actually given is that contained in Vol. II, Suggested Pattern Jury Instructions, p. 198 and repeatedly approved by this court. Christian v. State, 190 Ga. App. 667, 670 (3) (379 SE2d 807) (1989).