author: Miller, Judge.

text:
    A99A1372.
    ATLANTIC COAST FEDERAL CREDIT UNION v. DELK.
    (526 SE2d 425)
   Miller, Judge.

Atlantic Coast Federal Credit Union repossessed a truck purchased by J. D. Delk and sued to recover a deficiency balance that remained after the truck was sold. Delk counterclaimed on several grounds. A jury returned a verdict in favor of Delk and awarded him money damages. The credit union appeals the denial of its motion for a directed verdict and for judgment notwithstanding the verdict. Because we find that the only possibly valid basis for the jury’s verdict is Delk’s claim that the sale of the truck was commercially unreasonable, we reverse and remand for a jury trial on this issue alone.

In reviewing the denial of a motion for directed verdict or j.n.o.v., we must determine whether there is any evidence which could be construed to support the jury’s verdict.

The credit union moved for a directed verdict on Delk’s counterclaim, which consisted of several claims. Because we cannot determine on what basis the jury rendered its verdict, we are left to examine each of these claims to determine if the court erred in denying the directed verdict.

1. Delk contends the truck and the new tires and rims he added were wrongfully repossessed. Construed in favor of Delk, the evidence showed he was delinquent by at least one payment. He testified that he was 19 days late on a payment and that his April payment was for the March due date. The purchase contract stated that non-payment of any installment when due results in default. And OCGA § 11-9-503 allows a creditor to take possession of the collateral upon default. Thus, the credit union was authorized to repossess the truck. Also, under the purchase contract, the credit union had a security interest in all additions to the vehicle, including the new rims and tires that Delk put on the truck. Therefore, these items were rightfully repossessed with the truck.

Because there is no evidence that the truck was wrongfully repossessed, the credit union was entitled to a directed verdict on this claim of the counterclaim.

2. Because we find that the repossession was not wrongful, the claim of an adverse effect on Delk’s credit was not actionable.

3. Delk’s claim that the credit union did not comply with the notice provisions of OCGA § 10-1-36 is unsupported by the evidence. The statute provides that when a motor vehicle has been repossessed after default, the seller will not be entitled to a deficiency against the buyer unless within ten days after the repossession he sends a notice of the seller’s intent to pursue a deficiency judgment, of the buyer’s right of redemption, and of his right to demand a public sale. It is undisputed that Delk’s truck was repossessed on May 8 and that on May 12 he received a letter from the credit union informing him of his right of redemption and right to demand a public sale and that the credit union intended to pursue the deficiency. The credit union was entitled to a directed verdict on this portion of Delk’s counterclaim, as there was no evidence that it did not comply with the notice requirement.

4. The remaining basis for an award in favor of Delk would be that the sale of the truck was not commercially reasonable. Every aspect of the disposition of the collateral, including the method, manner, time, place, and terms, must be commercially reasonable. Delk testified that the truck was worth $30,000 when it was repossessed. But the purchaser who bought the truck from the credit union after it was repossessed stated that the truck was worth only $13,000. To recover a deficiency, a creditor bears the burden of proving commercial reasonableness to rebut the presumption that the value of the collateral is equal to the indebtedness, by presenting evidence of the fair and reasonable value of the collateral. “This burden may not be satisfied without establishing affirmatively that the terms of the sale were commercially reasonable.” This is normally an issue for the jury.

Aside from the credit union’s burden of proving commercial reasonableness to recover a deficiency, Delk, in order to recover money damages, bore the burden of proving that the credit union did not comply with the statute requiring the truck to be sold in a commercially reasonable manner. Under OCGA § 11-9-507 (1), failure to conduct a commercially reasonable sale would entitle the debtor to recover any loss as a result of that failure.

Even if the consumer debtor does not prove a specific monetary loss but proves that the creditor did not comply with the statute, the debtor is entitled to recover the finance charge plus [ten] percent of the principal amount of the contract if he or she proves those figures.

Based on the evidence presented, the jury could have determined that the sale of the truck was commercially unreasonable and that Delk was entitled to money damages as a result. Because there was some evidence to support a jury verdict in Delk’s favor, the denial of the motion for a directed verdict on this portion of his counterclaim was proper.

Atlantic Coast was entitled to a directed verdict on each claim of Delk’s counterclaim except for the issue of commercial reasonableness, for which there was some evidence to support a jury verdict. But we cannot discern whether the jury considered only the commercial reasonableness in its decision or if it was based on those claims that should have been properly disposed of by a directed ver-diet. Thus, the only remaining course of action is a retrial on the issue of commercial reasonableness. Crews v. Roger Wahl, C.P.A., P.C. addressed the issue of the necessity of a new trial due to a lump sum jury award and the reversal of the denial of a directed verdict on one of many claims:

Decided December 2, 1999

Reconsideration denied December 17, 1999.

Thomas & Settle, W. Vincent Settle III, for appellant.

Charles J. Steedley, for appellee.

We have held that the jury erroneously considered claims relating to the [plaintiffs] client list. Because the jury issued a summary verdict finding in favor of the [plaintiff! and granting lump sum damages in the amount of $265,000, we cannot determine which items, if any, other than the client list the jury found had been converted or misappropriated. Because we do not know the jury’s findings, we cannot determine if there was sufficient evidence to support such findings. And because the damages were not apportioned among the various items, we cannot determine which of the damages are attributable to the customer list and which, if any, are attributable to other items. Therefore, our reversal of the trial court’s denial of the directed verdict as it relates to the customer list necessitates a new trial on the remaining claims.*

Because the only valid ground on which the jury could have found in favor of Delk on his counterclaim is on the issue of commercial reasonableness, we reverse the judgment and remand the case for trial to determine whether the sale of the truck was commercially unreasonable and, if so, to award appropriate damages.

Judgment reversed and case remanded.

Blackburn, P. J., and Barnes, J., concur.

        Greene v. Bowers, 229 Ga. App. 324, 325 (1) (493 SE2d 709) (1997).

       See Fair v. Gen. Finance Corp. of Ga., 147 Ga. App. 706 (1) (250 SE2d 9) (1978), overruled on other grounds, Smith v. Gen. Finance Corp. of Ga., 243 Ga. 500 (255 SE2d 14) (1979).

       OCGA § 10-1-36.

       See Central &c. Bank of Ga. v. Williford, 192 Ga. App. 843, 844 (386 SE2d 688) (1989).

       OCGA § 11-9-504 (3).

        Emmons v. Burkett, 256 Ga. 855, 857 (2) (353 SE2d 908) (1987); Strong v. Wachovia Bank of Ga., 215 Ga. App. 572, 574 (3) (451 SE2d 524) (1994); Ogletree v. Brokers South, 192 Ga. App. 53, 55 (1) (383 SE2d 900) (1989).

       (Citation and punctuation omitted.) Central &c. Bank of Ga. v. Craft, 190 Ga. App. 576, 577 (379 SE2d 432) (1989).

       (Citation omitted.) Ogletree, supra, 192 Ga. App. at 55 (1).

       See Greene, supra, 229 Ga. App. at 325 (1).

       238 Ga. App. 892, 899 (3) (520 SE2d 727) (1999).

       Id. See also Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 97 (5) (406 SE2d 502) (1991) (damages awarded by jury were not apportioned between two claims; thus the reversal of the court’s grant of directed verdict as to one claim necessitates a new trial since there is no way to determine which, if any, damages are attributable to the reinstated claim); OCGA § 9-11-50 (ej.


source: Caselaw Access Project

author:
Barnes, Judge.
      Blackburn, Presiding Judge,

license: Public Domain

text:
    A99A1432.
    DICKERSON v. THE STATE.
    (526 SE2d 443)
   Barnes, Judge.

Following a jury trial, Rufus Dickerson was convicted of rape and sentenced to 18 years. He appeals, alleging the trial court erred in denying his motions to suppress DNA evidence, to compel a witness’s criminal history, for mistrial, and for recusal. For the reasons that follow, we affirm.

Construed to support the verdict, the evidence presented at trial showed that Anthony Penix hosted a party one evening to watch the Holyfield-Tyson fight. Approximately 15 people attended the party, including Rufus Dickerson. Around midnight, Penix’s fiancee, A. H., returned home from work. The party ended around 1:30 or 2:00 a.m., and Penix invited Dickerson to stay on the couch since he had been drinking. A. H. testified that around 2:25 a.m., she went to sleep in her son’s bedroom, leaving Penix and Dickerson on the couches in the den.

A. H. further testified that she awoke to find Dickerson on top of her with his penis in her vagina. She asked “what the hell he was doing” and punched him in the face, but “his motions got continually faster.” After A. H. screamed for her fiancé, Dickerson slid off the bed, pulled up his pants, and ran out the door. Penix, who was awakened by A. H.’s screams, yelled after Dickerson, who was getting into his car, but Dickerson did not stop.

A. H. called the police, and after they arrived she gave a description of Dickerson and his vehicle. A police officer picked up Dickerson and brought him back to the house, where A. H. identified him. A. H. went to the Rape Crisis Center, where nurses performed a physical examination that uncovered no signs of physical or sexual trauma.

The police took A. H.’s bed sheets for testing. After receiving a lab report verifying that the sheets contained DNA, the investigating officer secured a search warrant to obtain Dickerson’s blood for comparison DNA testing. A DNA analyst at the State Crime Lab testified that the DNA in Dickerson’s blood matched DNA in the sperm found on the bed sheets. The DNA section manager testified that the odds the sperm came from someone other than Dickerson were one in one hundred billion for the African-American population.

1. In his first assertion of error, Dickerson contends the trial court erred in not suppressing the DNA evidence because the search warrant affidavit did not contain sufficient probable cause to show Dickerson had committed the rape, did not state that relevant material evidence would be found in the search, and did not state that the method used to secure the evidence was safe and reliable. He further contends that the magistrate violated his right to counsel by issuing the search warrant ex parte.

“On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgments made. The trial court’s findings must be adopted unless determined to be clearly erroneous.” (Punctuation omitted.) Culver v. State, 230 Ga. App. 224, 227 (1) (496 SE2d 292) (1998), citing Bickley v. State, 227 Ga. App. 413, 414 (1) (a) (489 SE2d 167) (1997).

In determining whether sufficient probable cause existed for a magistrate to issue a search warrant, we apply the “totality of the circumstances” analysis set forth by the United States Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). Quoting Gates, the Supreme Court of Georgia held:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Punctuation omitted.) State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). “Before a warrant may issue, the issuing magistrate must have sufficient reasons to believe that a crime was committed, that the items sought are connected with the crime, and that the items sought will be found in the place to be searched.” (Citations and punctuation omitted.) State v. Toney, 215 Ga. App. 64, 65 (449 SE2d 892) (1994).

Here, the investigating officer presented to the magistrate a search warrant affidavit that included A. H.’s description of the alleged rape and of her attacker and statements by A. H. and Penix identifying Dickerson as the attacker. The affidavit specifically stated that “the person of Rufus Joe Dickerson, Jr.” was to be searched for “blood as evidence in the crime of rape.” Thus, contrary to Dickerson’s argument, the facts presented in the officer’s affidavit were sufficient to establish probable cause that Dickerson committed the crime and also specified the material evidence to be collected.

Finally, Dickerson argues the trial court erred in not suppressing the DNA evidence because he was denied his right to counsel when his blood was drawn. He argues that, because the search warrant was issued post-indictment, it constituted a critical stage in his criminal prosecution that triggered his right to counsel. However, we have held that “neither the presence of appellant’s counsel nor appellant’s consent is required for the execution of a warrant calling for the seizure of hair, blood or other body fluids.” Johnson v. State, 179 Ga. App. 467, 468 (4) (346 SE2d 903) (1986). Thus, the trial court did not err in denying Dickerson’s motion to suppress.

2. Dickerson also contends the trial court erred by denying his motion to compel and thus allowing into evidence the unimpeached testimony of a State witness. Dickerson maintains that under OCGA § 17-16-8 (a), the State must provide to defense counsel the birth dates of all its witnesses. Dickerson argues that, because he did not receive the birth date of a witness until shortly before trial, he could not retrieve her criminal records until after the trial ended. Those records revealed the witness was previously convicted of a crime of moral turpitude, and therefore her testimony would have been impeachable. The prosecuting attorney stated that he gave Dickerson all the witness information the State had in its possession. After much consideration, the trial court held the State could not be compelled to produce information not within its possession and denied Dickerson’s motion to compel.

Because Dickerson did not request a continuance at that point, he has waived his right to argue that the trial court erred in allowing the State’s witness to testify. See Day v. State, 188 Ga. App. 648, 650-651 (8) (374 SE2d 87) (1988). But for that waiver, we would reverse this conviction, as discussed by the special concurrence, based on the State’s failure to meet its mandatory discovery obligations with the resulting harm to the defendant.

3. Dickerson further contends that the trial court erred by denying the motion for mistrial he made after the judge commented on a witness’s statement. During Dickerson’s cross-examination of a State witness, the State objected to the hypothetical posed, on the ground that the assumptions given were not in evidence. In response to the State’s objection, the trial judge said:

The jury heard the testimony, and the jury recognized whatever the testimony was. I don’t think there is any testimony before this court that there were ten-ounces of Cognac consumed, I don’t — or alcohol. I don’t think that’s what he said. I think he said probably a ten ounce glass. ... As mixed drinks, but he thought. . . .

Dickerson objected and moved for a mistrial under OCGA § 17-8-57, which provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” The trial court denied the motion, explaining that its statement did “not amount to improper judicial comment which goes to the guilt or innocence of the accused. It merely represented the Court’s recollection of the evidence with regard to a hypothetical.”

The trial court then offered to give a curative instruction, which Dickerson declined. At the end of trial, the court charged the jury that they were the sole determiners of the evidence, and that no ruling or comment by the court during the trial was intended “to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.”

“Remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Punctuation omitted.) Johnson v. State, 234 Ga. App. 58, 59 (1) (506 SE2d 212) (1998), citing McGinnis v. State, 258 Ga. 673, 675 (4) (372 SE2d 804) (1988). Here, the trial judge properly ruled on the State’s objection to a hypothetical on the ground that the assumptions given were not in evidence. Even assuming the trial judge’s comments were opinions as to what had been proven in the case, OCGA § 17-8-57 does not extend to colloquies between the judge and counsel regarding the admissibility of evidence. Rowe v. State, 266 Ga. 136, 139 (2) (464 SE2d 811) (1996); Johnson v. State, supra, 234 Ga. App. at 59. We find no error in the trial court’s denial of Dickerson’s motion for mistrial.

4. In his fourth assertion of error, Dickerson argues that the trial court erred in denying his motion for disqualification and recusal of the trial judge, followed by his motion for mistrial. Before the director of counseling services at the Gwinnett Sexual Assault Center testified for the State, the trial judge excused the jury and informed counsel he had made charitable contributions to the Center, including a $500 donation for their new building. The trial judge said he had never been to the building nor did he know anyone working at the Center. In response, Dickerson moved to recuse the judge, asserting that the contributions made the judge’s impartiality questionable. The trial court denied the motion.

Under former Rule 25.2 (current Rule 25.3) of the Uniform Rules for the Superior Courts,

[wjhen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, he shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse.

(Punctuation and emphasis omitted.) Birt v. State, 256 Ga. 483, 484 (1) (350 SE2d 241) (1986).

Here, the trial court considered the timeliness and legal sufficiency of the affidavit accompanying the motion to recuse and held that the facts alleged did not show bias or prejudice toward an involved party. The Center employed two of the witnesses and was not a party directly involved in the criminal proceedings, and the judge voluntarily told the parties of his charitable contributions.

USCR 25.2 states that “[a]llegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.” The conclusory allegations in Dickerson’s affidavit, assuming them to be true, failed to show the alleged bias was “of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudice.” (Punctuation omitted.) Birt v. State, supra, 256 Ga. at 486. Accordingly, we find no error in the trial court’s determination that no further hearing was necessary on Dickerson’s recusal motion.

5. Finally, Dickerson argues the trial judge erred in denying a second motion to recuse, filed after the judge commented publicly on the previous recusal motion. A newspaper article published during the trial began: “Superior Court Judge James Oxendine rejected a defense motion to recuse himself from a rape trial Monday, saying donations he made to the Gwinnett Rape Crisis Center do not affect his impartiality.” The article quoted the judge as follows:

Oxendine said there was no basis for the accusation. “You’ve got to have more connection than that, and I don’t know a single person who works for the rape crisis center,” he said in an interview. “I simply gave money when they were out trying to build a new building. I have absolutely no contact with them. . . . I’ve always felt like one ought to try to support your community, and they’re not a political organization or anything.”

(Ellipsis in original.)

Dickerson asserts these comments reflected adversely on the judge’s impartiality. As in Division 4, the trial court’s comment concerning the first motion to recuse demonstrated neither bias nor prejudice that would influence him and impede or prevent impartiality in the case. Birt v. State, supra, 256 Ga. at 486. We find no error in the trial court’s denial of the second motion to recuse.

Judgment affirmed.

Ellington, J., concurs. Blackburn, P. J, concurs fully and specially.

Blackburn, Presiding Judge,

concurring fully and specially.

I concur fully with the judgment and analysis of the majority. I write separately to clarify the procedural requirements of the criminal discovery statute. The State has not shown “good cause” for its failure to comply with OCGA § 17-16-8 (a), the criminal discovery statute, simply because it did not “have the birth dates in its files.” This excuse cannot be accepted as “good cause” under the statute. If compliance can be so easily avoided, the discovery statute is rendered meaningless.

OCGA § 17-16-8 (a), applying equally to the prosecution and defense, mandates the exchange of minimal, but critical information: “The prosecuting attorney . . . and the defendant’s attorney . . . shall furnish to the opposing counsel as an officer of the court, in confidence, the names, current locations, dates of birth, and telephone numbers of that party’s witnesses.” (Emphasis supplied.) Both the prosecution and the defense are statutorily required to provide these four pieces of information about their respective witnesses. Compliance is mandatory unless “for good cause the judge allows an exception.” Id.

The purpose of this statute, as with the other statutes governing discovery in a criminal case, is to ensure that the criminal defendant receives a fair trial. “[T]he State and a criminal defendant [should] begin on a level playing field at the outset of trial.” Hill v. State, 232 Ga. App. 561, 564 (502 SE2d 505) (1998) (Blackburn, J, concurring specially). Specifically, this statute gives both sides the opportunity to interview witnesses in preparation for trial.

A primary purpose of requiring disclosure of evidence and witnesses well in advance of trial is to allow counsel time to reflect with deliberation upon such evidence, to consider how it could best be presented at trial and how it affects her overall strategy, and to seek to develop other evidence to corroborate or impeach the discovered evidence.

Baker v. State, 238 Ga. App. 285, 287 (518 SE2d 455) (1999). A witness’ birth date is used to develop evidence to impeach the witness — it is necessary to research any criminal record.

The State did not provide the birth dates because the dates were not in its file. Dickerson filed a motion to compel the State to produce either its witnesses’ criminal histories or their birth dates. The trial court denied the motion to compel, holding that, without evidence to the contrary, it could not compel the State to produce information which the State did not have. Dickerson’s ability to obtain the criminal history of the subject witness who had a conviction for a crime involving moral turpitude was hampered by the State’s failure to provide the required information, and defendant was unable to impeach said witness.

As the statute obligates the State to give the information to the defendant, it has a duty to attempt to obtain the information about its witnesses. The State cannot fulfill its obligation by simply looking in its file. The statute clearly requires the parties to provide four pieces of information, and only in the rarest of circumstances should the information truly be unavailable.

The State asserted that it did not have to go looking for the information. I disagree. Although the State complains that getting the information is burdensome, this information is routinely obtained by the State, and the discovery statute places the same burden on the defense. That burden is the cost to the parties of receiving the benefits of the discovery process. The legislature intended for both sides to comply with the law, and the statute contemplates a reasonable effort by both sides to meet their statutory obligations.

The information is reasonably available to the State by communicating with its witnesses, the police department, the investigators in the district attorney’s office, or checking available records, including computer searches. The State should not be allowed to avoid compliance with the law by producing only the information which it elects to include in its file. See OCGA §§ 17-16-1 (1); 17-16-4; Marshall v. State, 230 Ga. App. 116, 118 (2) (495 SE2d 585) (1998) (the prosecutor’s ignorance of discoverable information does not justify noncompliance with the discovery statute); Baker, supra. To hold otherwise, would result in an expedient means for the State to avoid compliance — merely not including the information in their file, not asking their witness, the police, or investigators for such information, or not checking the computer or criminal files. This is impermissible and circumvents the very purpose of the statute. Nowhere does the State contend that the statutorily required information was not available through one of the methods outlined above or indeed that they had even attempted to so obtain the information.

Thus, to establish good cause for failing to comply with OCGA § 17-16-8 (a), the State has the burden of showing what reasonable efforts it has made and why such efforts failed to be fruitful as to those statutorily required items: name, location, date of birth and phone number of the witness. It is not enough to say it is not in “our” file, when it may very well be in the police or investigative file. The State has an absolute duty to provide such information absent a showing of good cause to excuse it of this duty.

Such a showing necessarily entails outlining the efforts made, but which ultimately failed, to obtain the information. Who originally communicated with or interviewed the witness? Why was the information not obtained then as a standard part of witness information? Who, including police or other investigators, has information on the witness? How does the State presently communicate with its witness? Does the State have the ability to check criminal records on its witnesses? Did it do so in this instance? If not, why not? Did the State check the criminal records on any of defendant’s witnesses? What effort would it, in fact, take to obtain the required information? These questions are not exhaustive but are intended to demonstrate the type of review the court must conduct in its inquiry. The court must satisfy itself that the State’s efforts rise to the level reflected in these inquiries. The announced results of these inquiries must be credible and reasonable before the State can be excused of its obligation to provide the required information.

Morrill v. State, 216 Ga. App. 468, 472 (7) (454 SE2d 796) (1995), cited by the State, did not involve the statutorily required information herein involved and does not require a different result. In Mor-rill, the defendant claimed entitlement to all of the police investigatory files. There we simply held that

there is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Certainly, a prosecutor has no obligation to contact local law enforcement and judicial agencies on behalf of the defense to uncover any information which might be remotely relevant.

(Punctuation omitted.) Id. Unlike the information requested in Mor-rill, here the statute requires that specific information be provided. Because the statute requires that specific data be provided, the State should either routinely obtain the information in anticipation of having to provide it or obtain it upon request. Moreover, no unique, detailed, time-consuming investigation is demanded of the State for the benefit of the defendant. The legislature clearly intended that parties, including the State, expend that level of effort which the production of the information that the statute demands be produced might reasonably require.

In Baker, supra, we held that,

[w]hen wrongfully withheld evidence is disclosed for the first time at the start of the trial, the defendant may be presumed to have been prejudiced, as his attorney has not had the opportunity to reflect upon such evidence and to determine what other investigation may be required as a result of its use and how it impacts the existing trial strategy and the subpoena and call of witnesses.

Decided December 3, 1999

Reconsiderations denied December 17, 1999

Chandler & Britt, Walter M. Britt, Deborah F Weiss, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Cari K. Johanson, Assistant District Attorneys, for appellee.

Id. at 287. Consequently, in Baker, the State’s failure to comply with the discovery statute resulted in the reversal of Baker’s conviction. In this case, the defendant, through his own efforts, was able to obtain the witness’ date of birth but did not have time to obtain the criminal history with which he could have impeached the witness.

Because Dickerson did not request a continuance at that point, he cannot now complain that he did not have time to obtain the criminal history, as the trial court might have given him the time upon request. He has waived his right to complain under these circumstances. But for this waiver, I would reverse this case based on the State’s failure to meet its mandatory discovery obligations, with the resulting harm to the defendant. However unjust this result might appear when comparing the State’s failure to that of the defendant, we are constrained to follow the holdings of this Court and those of the Supreme Court of Georgia which have consistently required defendants to seek continuances when confronted with potential error which a continuance would avoid. See Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) (510 SE2d 87) (1998) (failure to move for continuance precludes defendant from asserting his counsel was not afforded ample opportunity to investigate); Watts v. State, 265 Ga. 888 (2) (463 SE2d 696) (1995) (failure to move for a continuance precluded consideration of error).

For this reason alone, I would affirm rather than reverse in this case.

       I note that in this case, even though defense counsel was given the witness’ phone number, he was thwarted in his efforts to get the birth date because the witness chose not to speak with him until the Friday before trial.


author: Blackburn, Presiding Judge.

text:
    A99A0827.
    TAYLOR AUTO GROUP, INC. v. JESSIE et al.
    (527 SE2d 256)
   Blackburn, Presiding Judge.

In this appeal involving the certification of a class action for improper charges imposed on the sale of new cars, Taylor Auto Group, Inc. appeals the trial court’s determination that Gejuan Jessie was an adequate class representative to bring such class action claims. Taylor contends (1) that OCGA § 10-1-36.1 (a) bars Jessie’s entire case from being brought as a class action; and (2) that Jessie is not an appropriate class representative. For the reasons set forth below, we affirm.

Jessie brought this action against Taylor, complaining that in purchasing a new car she was charged for services she did not receive and overcharged for services she did receive. She seeks damages based on theories of fraud, theft by deception and taking, money had and received, and violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (as a result of theft), the Motor Vehicle Sales Finance Act (MVSFA) and the Uniform Deceptive Trade Practices Act. Following an evidentiary hearing, the trial court entered an order granting in part Jessie’s motion to certify the issues in this case for treatment as a class action. We granted Taylor’s application for interlocutory appeal.

Jessie bought a new Hyundai automobile from Taylor for $17,866.79, which included a $1,300 extended warranty. In making the purchase, she executed a customer order form followed by a retail installment sales contract, both standardized contract documents. Jessie has identified approximately 1,500 other new car purchasers from Taylor under such contracts.

Jessie complains that under both contract documents she was charged a $45 tag and title fee, whereas $38 is the actual fee imposed by the State for providing a tag and certificate of title; that the customer order form imposed an additional $99.50 charge for nonexistent services, i.e., “notary and filing fee rights act”; and that the contract documents failed to reveal a markup for the extended warranty payable to a third party in violation of a provision in the contract requiring disclosure of the identity of the payment recipient.

Taylor has shown that the $99.50 it allegedly charged for nonexistent “notary and filing fee rights act” services was simply misidentified on the customer order form, but correctly shown on the sales contract to consist of a $96fi0 document preparation fee and a $3 fee imposed under the Motor Vehicle Warranty Rights Act. OCGA § 10-1-780 et seq. The $3 fee is mandated by OCGA § 10-1-789, and Taylor has presented evidence to the effect that the document preparation fee is a mechanism through which it allocates to each car purchaser various administrative expenses it incurs in doing tag and title work. There is no “notary and filing fee rights act.”

In her deposition, Jessie acknowledged she did not read the contract documents before signing them, but only scanned portions of them to ensure that the car she was purchasing had the features she wanted and that the monthly payments were affordable.

While the motion for class certification was pending, Taylor refunded the $7 in tag and title overcharges to the other customers identified by Jessie, and the trial court did not certify this claim for class action treatment. The court also held that under OCGA § 10-1-36.1 (a), the count of the complaint alleging violation of the MVSFA cannot be brought as a class action. The court certified the remaining counts of the complaint as a class action.

1. Taylor contends that OCGA § 10-1-36.1 (a) prohibits this entire case from being brought as a class action. We disagree.

OCGA § 10-1-36.1 (a), which is part of the MVSFA, provides: “A claim of violation of any loan or contract secured by an interest in a motor vehicle may be asserted in an individual action only and may not be the subject of a class action under Code Section 9-11-23 or any other provisions of law.”

“In interpreting statutes, courts must look for the intent of the legislature and construe statutes to effectuate that intent. [Cits.]” City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991); see Patterman v. Travelers, Inc., 235 Ga. App. 784, 785 (510 SE2d 307) (1998). OCGA § 10-1-36.1 (a) is intended to prohibit class action certification for a claim that any loan or contract secured by an interest in a motor vehicle violates the MVSFA. See Southern Guaranty Corp. v. Doyle, 256 Ga. 790, 794 (5) (353 SE2d 510) (1987); cf. Pardue v. Bankers First Fed. Sav. &c. Assn., 175 Ga. App. 814 (334 SE2d 926) (1985). It does not, as Taylor contends, reach the “universe” of claims founded on loans or contracts secured by a motor vehicle. As such, this assertion lacks merit.

2. Taylor contends that for other reasons, including the lack of efficacy in Jessie’s claims, the remaining counts of the complaint are inappropriate for treatment as a class action. Again, we disagree. “[I]n determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [OCGA § 9-11-23] have been met.” Sta-Power Indus. v. Avant, 134 Ga. App. 952, 954 (1) (216 SE2d 897) (1975).

The certification of a class action is a matter of discretion for the trial judge, and, absent an abuse of that discretion, we should not disturb the trial court’s decision. Trend Star Continental, Ltd. v. Branham, 220 Ga. App. 781, 782 (1) (469 SE2d 750) (1996). Here, the trial court specifically found that Jessie was an adequate class representative under OCGA § 9-11-23. “The important aspects of adequate representation are whether the plaintiffs’ counsel is experienced and competent and whether plaintiffs’ interests are antagonistic to those of the class.” Stevens v. Thomas, 257 Ga. 645, 649 (361 SE2d 800) (1987). The trial court, finding no evidence showing that Jessie’s interests are in conflict with the interest of other class members, determined that she was an adequate class representative.

Decided December 17, 1999

Hull, Towill, Norman & Barrett, David E. Hudson, for appellant. Bell & James, John C. Bell, Jr., Pamela S. James, for appellees.

Any argument that Jessie is not an adequate representative because she will not ultimately prevail on her claim does not comprise an appropriate basis for denying class certification. Sta-Power Indus., supra. Here, the trial court did not abuse its discretion by determining that the requirements for class certification, numer-osity, commonality and adequacy of representation, had been met.

Robinson v. Sheriff of Cook County, 167 F3d 1155, 1157 (7th Cir. 1999), does not require a different result. That case presented a unique situation because there, the trial court had already ruled on the merits of the plaintiff’s claim. There, after the plaintiff’s suitability as a class representative was challenged, the trial court conducted a bench trial and ultimately dismissed the plaintiff’s claim. Although affirming the trial court’s denial of class certification, Judge Posner observed that

[t]he point is not that a plaintiff is disqualified as class representative if he may fail to prove his case or if the defendant may have good defenses. That would imply that the only appropriate class representative is a plaintiff who has a 100 percent chance of prevailing if the case is tried. But if his claim is a clear loser at the time he asks to be made class representative, then approving him as class representative can only hurt the class.

(Emphasis supplied.) Id. at 1158.

In the present case, all that has been contended is that Jessie may fail to prove her claim or the defense may have good defenses. Unlike Robinson, the trial court has not ruled on the merits of Jessie’s case, and we have no authority to impose our judgment on this issue. We can only correct errors, and where the trial court has not ruled on an issue, he could not have erred in connection therewith. Thus, we have nothing to review as to the merits of Jessie’s claim.

The trial court’s certification of the class should be affirmed.

Judgment affirmed.

Barnes and Ellington, JJ, concur.

Schulten, Ward & Turner, Lou Litchfield, amicus curiae.


text:
    A99A1225.
    HORTON v. THE STATE.
    (527 SE2d 254)
   Miller, Judge.

DeWayne Horton and co-defendant Lonnie Burns were convicted of armed robbery and possession of a firearm during the commission of a felony. The evidence revealed within minutes after the armed robbery of a convenience store, police stopped Horton and Burns in the vicinity while they were driving away from the store in a vehicle which contained the ski masks, a gun, and identifiable money associated with the robbery. Horton appeals, raising three claims of error: (i) denial of his motion to suppress, (ii) refusal to sentence him as a first offender, and (iii) sufficiency of the evidence. We affirm.

1. Arguing police did not have probable cause to stop the vehicle or to arrest him, Horton contends the trial court erred in denying his motion to suppress the evidence found in the vehicle. This precise argument was based on the same record and facts raised by co-defendant Burns in his separate appeal and was found to be without merit. Burns v. State, 239 Ga. App. 532 (1) (521 SE2d 217) (1999), remanded by the Supreme Court on other grounds by unpublished order, Burns v. State, Case No. S99C1729 (November 19, 1999). We see no reason to reiterate the facts and analysis here.

2. Horton also claims that the evidence was insufficient to convict him under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This claim was not addressed in Burns. Evidence showed that shortly after 2:00 a.m., police found Horton, a white male wearing camouflage coveralls (just as described by the store clerk), attempting to conceal himself in a vehicle near the vicinity of the store within minutes of the crime. A second white male, two ski masks, a gun, and identifiable money (including a $2 bill), all identified or described by the store clerk as associated with the crime, were found in the vehicle. During the robbery, the store clerk even heard the first white male refer to his accomplice as “DeWayne.” The evidence sufficed to sustain the convictions.

3. Finally, Horton contends that the trial court erred in refusing to consider sentencing him as a first offender under the First Offender Act (OCGA § 42-8-60 et seq.). In its denial, the court relied on Fleming v. State, 233 Ga. App. 483 (504 SE2d 542) (1998), where this court applied the amendments to OCGA § 17-10-6.1 and the First Offender Act, both effective March 27, 1998.

OCGA § 17-10-6.1 establishes the mandatory minimum punishment for serious violent offenses including the offense of armed robbery. The amendment added that

[n]o person convicted of a serious violent felony as defined in subsection (a) of this Code section shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.

OCGA § 17-10-6.1 (b). Similarly, the First Offender Act was amended to add that “[t]he provisions of this article shall not apply to any person who is convicted of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1.” OCGA § 42-8-66. In Fleming, although the crimes were committed prior to the enactment of these amendments, this court concluded that Fleming should not be considered for first offender treatment because the subsequent amendments declared the intent of the legislature in enacting the earlier statutes. Fleming, supra, 233 Ga. App. at 487-488.

But Fleming was recently reversed by the Supreme Court in Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999). The court held that “before the statutory amendments, a defendant found guilty of a serious violent felony under OCGA § 17-10-6.1 was not precluded from requesting and obtaining first offender treatment.” Id. Fleming was charged with crimes that were committed in 1996 and was sentenced in 1997, prior to the enactment of the 1998 amendments. The court explained that looking to an amendment for the intent of an earlier statute is warranted only where the original statute is ambiguous and “[t]he fact that the legislature later declared an intent it did not earlier express did not render the plain language of the earlier pronouncement ambiguous, and thus, susceptible of construction.” Id. at 589. The court also held that “the denial of the opportunity to be treated as a first offender impermissibly altered the defendants’ situations to their disadvantages and inflicted greater punishment than what was mandated at the time their crimes were committed.” Id. at 590. Similarly, Horton was charged with crimes that were committed in 1997, one year prior to the 1998 amendments, and he should be afforded the opportunity to be treated as a first offender.

In light of the Supreme Court’s decision in Fleming, we vacate Horton’s sentence for armed robbery and remand the case with direction that the trial court consider first offender treatment.

Judgment of conviction affirmed, sentence vacated, and case remanded with direction.

Pope, P. J., and Smith, J., concur.

Decided December 17, 1999.

Martin G. Hilliard, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.


author: Ruffin, Judge.

text:
    A99A1669.
    HART v. THE STATE.
    (527 SE2d 252)
   Ruffin, Judge.

A Bartow County jury found Angela Suzanne Hart guilty of burglary. In her sole claim of error on appeal, Hart asserts that the circumstantial evidence of her guilt was insufficient to support the jury’s verdict. We disagree and affirm.

Following her conviction for burglary, Hart no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to the verdict. On appeal, we neither weigh the evidence nor determine witness credibility, but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia . “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.”

The evidence shows as follows. On or about October 25, 1997, Hart helped Lawanna Petrey move into a house Lawanna shared with her mother, Mary Petrey. Among the items moved were several pieces of jewelry. That evening, Lawanna drove Hart back home. Instead of staying at her mother’s house, Lawanna spent the night at her grandmother’s house. Mary also stayed elsewhere that night. Hart knew that both Lawanna and Mary Petrey would be away for the night and that the house would be unoccupied.

The next day, Mary and Lawanna returned to their house and discovered that the back door, which had been nailed shut, had been broken open. Although the house had not been ransacked and appeared largely untouched, upon inspection, Lawanna found that the jewelry, including a gold rope chain necklace, two herringbone chain necklaces, two watches, and six rings, had been stolen. In addition, a pair of earrings, a videocamera, a cell phone, a hand-held scanner, and a collection of matchbooks had been taken. Because Hart had been present the day before, Lawanna suspected she was involved in the burglary.

The night these items were taken, Hart called her friend, Timothy Patterson, and asked him to pick her up and take her to his house. According to Patterson, when he picked Hart up, she was wearing three gold necklaces, a tennis bracelet, and several rings. Patterson testified that Hart asked his brother if he wanted to buy any of the jewelry and that she asked Patterson to “get rid of” the jewelry for her. He also testified that, two days later, Hart brought a bag over to his house that contained a cell phone and a collection of matchbooks that Lawanna identified as belonging to her.

Hart, testifying on her own behalf, admitted that she had some of the stolen jewelry, but claimed that she received it from Patterson. She admitted that she had sold one of the necklaces and one of the rings. According to Hart, she initially did not recognize the items as belonging to Lawanna, but she suspected that the jewelry had been stolen. According to Hart, she realized that the jewelry belonged to Lawanna only after Lawanna confronted her about the burglary. But Hart still did not tell Lawanna who had the jewelry.

A person is guilty of burglary if she enters the dwelling of another without authority and with the intent to commit a theft therein. Hart argues that the circumstantial evidence of her participation in the burglary was insufficient to sustain her conviction. Under Georgia law, to sustain a conviction based upon circumstantial evidence, the facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis. But it is not necessary that the evidence exclude all possible hypotheses. The jury bears the responsibility for determining whether a hypothesis is reasonable. Here, Hart spent the day before the burglary at the Petreys’ house. On the night of the burglary, she knew that the Petreys would be away from home. Because the house was largely undisturbed, there is an inference that whoever burglarized the house knew the whereabouts of the valuables. Hart admitted that she had, in her possession, some of the stolen jewelry. Under these circumstances, the jury was authorized to find her guilty of burglary.

Judgment affirmed.

Andrews, P. J., and Ellington, J, concur.

Decided December 17, 1999.

Ann C. Stahl, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

        Ford v. State, 234 Ga. App. 301 (1) (506 SE2d 668) (1998).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Ford v. State, supra at 301-302.

       (Punctuation omitted.) Id. at 302.

       Patterson, who also was charged with burglary, was tried and convicted with Hart.

       OCGA § 16-7-1 (a).

       OCGA § 24-4-6.

        Martin v. State, 228 Ga. App. 59, 61 (1) (491 SE2d 142) (1997).

        Johnson v. State, 215 Ga. App. 90, 91 (1) (449 SE2d 863) (1994).


text:
    A99A1920, A99A1921.
    In the Interest of B. M. B., a child (two cases).
    (527 SE2d 250)
   Blackburn, Presiding Judge.

In separate appeals, the natural parents appeal the juvenile court’s order finding B. M. B., their one-year-old child, to be deprived and placing temporary custody of B. M. B. with the Cobb County Department of Family & Children Services (DFACS). The parents contend that the trial court erred in determining that B. M. B. was deprived. Because the record is supported by clear and convincing evidence of deprivation, we affirm.

We review a trial court’s finding of deprivation

in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the [child was] deprived. . . . “This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.”

In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998).

On April 25, 1997, the parents’ parental rights to their three children were terminated. B. M. B. was born several months later, on September 23, 1997. In the present case, the juvenile court determined that the parents neglected and deprived B. M. B. by residing in the home of the child’s paternal grandmother. Patti Sipos with DFACS testified as to what she found when she did a welfare check on B. M. B. at the grandmother’s residence on February 4, 1999. Sipos testified that the entrance to the home had a very strong odor of alcoholic beverages and that the home was cluttered with piles of garbage, dirty dishes, and dirty clothes. Sipos testified that there were dead and live cockroaches “all over everything.” At the time of the welfare check, B. M. B. was in a bedroom with his mother. The room, the child, and his clothes were filthy. The bed sheets were dirty, and there were medication bottles and a beer bottle within the child’s reach. The child was coughing and very irritable. The mother told Sipos that she had lived in nine locations over the past two years. There were several intoxicated men in the house, including a man who had urinated on himself while sitting on the couch. Additionally, one of the male residents assaulted Sipos as she tried to take pictures of the disarray in the house.

The father was incarcerated for probation violations, at the time of the welfare check. He had failed to complete community service, pay court-ordered fines, or attend DUI school. He also had incurred various traffic tickets. Additional criminal charges were pending against the father at the time of the hearing.

At the time of the hearing the mother lived in the home of Mr. and Mrs. Bettis. The mother indicated that she wants the Bettises to adopt B. M. B. Mrs. Bettis testified that she has a four-bedroom house on an acre of land where the mother and B. M. B. can live rent-free for as long as necessary. Mrs. Bettis testified that the father was not welcome in her home. No one from DFACS has visited her house.

OCGA § 15-11-2 (8) defines a deprived child as a child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. It is well established that clear and convincing evidence is required to support a finding of deprivation. OCGA § 15-11-33 (b) (1); In re Suggs, 249 Ga. 365 (291 SE2d 233) (1982); In re R. R. M. R., 169 Ga. App. 373 (312 SE2d 832) (1983).

(Punctuation omitted.) In the Interest of E. R. D., 172 Ga. App. 590 (323 SE2d 723) (1984).

The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child [,] and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue. Brown v. Fulton County Family &c. Svcs., 136 Ga. App. 308, 310 (2) (220 SE2d 790) (1975).

(Punctuation and footnote omitted.) In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997).

The facts of the present case clearly establish that B. M. B. is deprived. The infested nature of the paternal grandmother’s house clearly established a health hazard to the child. And the trial court specifically found that the parents’ choice in exposing their child to such an inappropriate and dangerous living environment showed a lack of parental judgment and careless disregard for the child’s health and safety. Additionally, the parents’ previous loss of parental rights to three older children and the transient nature of their living arrangements support the trial court’s determination. The trial court determined that the child was deprived and ordered a home study on the Bettises’ home. Because the trial court’s findings were supported by clear and convincing evidence, we affirm.

Decided December 17, 1999.

David C. Butler, Bobby G. Adkins, Jr., for appellant (case no. A99A1920).

Lawrence M. Korn, for appellant (case no. A99A1921).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, ShalenA. Sgrosso, Assistant Attorney General, Sanders B. Deen, Robert J. Grayson, for appellee.

Judgments affirmed.

Eldridge and Barnes, JJ., concur.


author: Phipps, Judge.

text:
    A99A1042.
    RAINS v. DOLPHIN MORTGAGE CORPORATION.
    (525 SE2d 370)
   Phipps, Judge.

Glenda Rains sued her sister, April Marie Roberson, Tommy McEarchern, Dolphin Mortgage Corporation, and others alleging forgery, fraud, and violation of the Georgia Racketeer Influenced & Corrupt Organizations Act and seeking punitive damages. The trial court granted Dolphin’s motion for summary judgment, finding that (1) the corporation was not liable for McEarchern’s acts because he was not an actual or apparent agent, (2) Dolphin did not ratify McEarchern’s actions, and (3) forgery was outside the scope of any employment or agency relationship between Dolphin and McEar-chern. Rains appeals from that order and contends that there are genuine issues of material fact regarding all of the trial court’s findings. We agree that issues of material fact remain for the jury’s consideration, and therefore, we reverse.

Rains and Roberson each inherited from their father a one-half interest in certain residential property. Roberson, as executrix of their father’s estate, conveyed the property to Rains and herself by Executor’s Deed. Rains and Roberson discussed selling the property, but Rains did nothing to effect a sale.

In December 1996, Rains received a telephone call from McEar-chern, who claimed that he worked for Dolphin. McEarchern told Rains that her father’s former property was to be sold and that she needed to sign a quitclaim deed. Several days later, McEarchern called again, identified himself as being affiliated with Dolphin, and informed Rains that the house would be sold with or without her signature. Rains responded that she was not signing anything until she had a chance to speak with her attorney.

Later Rains read in the newspaper that the property had been sold. After hiring an attorney, Rains discovered that her name had been forged to a quitclaim deed, which conveyed her one-half interest in the property to Roberson. Roberson then conveyed the property to Robert and Tina Marshall, who knew nothing about the forged document.

At deposition, McEarchern testified that he had been employed by Dolphin for six months as an agent or loan originator and had closed ten to twenty loans for them. He testified that he had received on-the-job training from Lupita McCarthy, the manager of Dolphin’s Atlanta office, on how to complete the loan documents and that he had assisted people in filling out the forms. He insisted that he had not forged Rains’s name to the quitclaim deed.

In response to Dolphin’s motion for summary judgment, Rains submitted an affidavit from McEarchern. In his affidavit, McEar-chem swore that he had been employed by Dolphin as a loan originator, that he had received commissions from Dolphin, and that McCarthy had given him a Dolphin business card to use as a model for having his own printed. He also admitted that he had forged Rains’s name to the quitclaim deed but stated that McCarthy had told him to sign it to close the loan and that Dolphin would take care of it. McEarchern stated that McCarthy had told him how to testify at his deposition and had specifically instructed him to deny signing the quitclaim deed.

Initially McCarthy testified at deposition that Dolphin had never compensated McEarchern for referring loan applicants but later acknowledged that Dolphin did pay him on three or four occasions. McCarthy knew that McEarchern had been distributing business cards with his name and the Dolphin name and logo on them and testified that she had told him to stop. McCarthy said she and her assistant manager, Don Williams, had become concerned when they heard that McEarchern was telling people he worked for Dolphin and they had decided to have him sign a letter of resignation. The letter, which was prepared by Williams and signed by McEarchern, stated that McEarchern was resigning his employment as a loan officer for Dolphin.

Williams testified that McEarchern had been involved in approximately ten loans for Dolphin and that he had received some compensation for his work. Dolphin’s vice president and its compliance manager testified at deposition that Dolphin had issued McEarchern five checks with the word “commission” written on them but contended that they should have said “referral fee” instead.

We review the trial court’s grant of summary judgment de novo to determine whether the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law. “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.”

1. Dolphin contends that McEarchem’s affidavit must be construed against Rains because it contradicts his prior deposition testimony.

Where a party offers self-contradictory testimony in response to a motion for summary judgment, without reasonable explanation for the contradiction, the testimony must be construed against the party. This rule also applies to testimony given on behalf of a party.

McEarchern’s affidavit contradicts his deposition testimony but also offers an explanation for the discrepancy — that McCarthy told him how to testify at his deposition and instructed him to deny signing the quitclaim deed. We find his explanation reasonable and, as a result, will not construe his affidavit against Rains.

2. Rains contends that there is sufficient evidence in the record to support a finding that McEarchern was an agent or employee of Dolphin.

To determine whether a person is an employee or an independent contractor, we examine whether the employer assumes the right to control the time, manner, and method of executing the work. The right to control the time means the right to control the actual hours of work. The right to control the manner and method means the right to tell the employee how to perform all details of the job, including the tools he should use and the procedures he should follow.

Viewing the evidence in Rains’s favor, we find no basis on which to conclude that McEarchern was an employee of Dolphin. There is no evidence that Dolphin had the right to control the hours McEar-chem worked. The record does show that McEarchern received payments from Dolphin that were identified as commissions and that McCarthy and Williams, who Dolphin admits are employees, were compensated by commission. The record also shows that Dolphin employees instructed McEarchern to sign a letter of resignation, which they drafted. But those facts do not show that Dolphin had the right to control the way McEarchern performed his work. The only evidence that Dolphin had the right to control the time, manner, or method of McEarchern’s work is that McCarthy provided him with training on how to prepare loan documents. Under the circumstances, we cannot conclude that a genuine issue of material fact exists on this issue.

3. Rains challenges the trial court’s holding that McEarchern was not an apparent or ostensible agent of Dolphin.

To subject an alleged principal to liability under a theory of apparent or ostensible agency, a plaintiff must show, “(1) that the alleged principal held out another as its agent; (2) that the plaintiff justifiably relied on the care or skill of the alleged agent based upon the alleged principal’s representation; and (3) that this justifiable reliance led to the injury.” Even if Dolphin held McEarchern out as its agent, there is no evidence that Rains justifiably relied on Dolphin’s representations or that her reliance led to the harm caused by McEarchern. We find that the trial court correctly granted summary judgment to Dolphin on this issue.

4. Rains contends that Dolphin ratified McEarchern’s actions and therefore should be liable for them.

The relationship of principal and agent may be established if one person, expressly or by implication, ratifies the acts of another on his behalf.* Whether a ratification occurred is generally a question of fact for the jury. Ratification may occur if a business entity accepts the benefits of an act done by another on its behalf, although that person had no actual or apparent authority to act for the business. Even forgery by one purporting to act on behalf of another may be ratified.

Decided November 16, 1999

Reconsideration denied December 20, 1999

Smith, Price & Wright, Sidney P. Wright, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, James D. Blitch, for appellee.

We find sufficient evidence exists to create a genuine issue of material fact about whether McEarchern’s actions were ratified. His actions were taken for Dolphin’s benefit, and McCarthy acknowledged that she and Dolphin retained the benefits of those actions. There is evidence that Dolphin, through McCarthy (its admitted employee and the office manager), not only knew of but directed McEarchern’s actions. Because we find these facts sufficient to create a jury question on whether McEarchern was an agent via ratification, we reverse the trial court’s grant of summary judgment to Dolphin.

5. By granting Dolphin’s motion for summary judgment in its entirety, the trial court also disposed of Rains’s claim under the Georgia RICO Act and her claim for punitive damages. We find material issues of fact with respect to these claims also.

As to the RICO claim, Dolphin argues that there is no evidence of a pattern of racketeering activity. This argument is without merit. Under RICO, a pattern of racketeering activity requires at least two incidents of interrelated racketeering activity, i.e., predicate offenses. Here, there is evidence that, pursuant to directions by McCarthy, McEarchern committed forgery in the first degree by signing Rains’s name to the quitclaim deed and uttering or delivering it at closing and perjury by giving false testimony at his deposition.

As to Rains’s claim for punitive damages, Dolphin argues that there has been no proof by clear and convincing evidence of fraud or other actionable misconduct so as to authorize imposition of punitive damages under OCGA § 51-12-5.1 (b). There is no merit in this argument. This is a jury question.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

        Howell v. Styles, 221 Ga. App. 781, 784 (4) (472 SE2d 548) (1996).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Emphasis omitted.) Id.

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

        Ford v. Dove, 218 Ga. App. 828, 829 (1) (463 SE2d 351) (1995).

        RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990); Neese v. Britt Home Furnishings, 222 Ga. App. 292, 293 (2) (474 SE2d 44) (1996).

       Id.

       Id.

        Kissun v. Humana, Inc., 267 Ga. 419, 420 (479 SE2d 751) (1997); Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508-509 (361 SE2d 164) (1987).

       See Frey v. Pepsico, Inc., 191 Ga. App. 585, 587 (1) (382 SE2d 648) (1989) (unless the appellants chose to be hit by one of the principal’s trucks, there can be no reliance on the apparent agency relationship); cf. Keefe v. Carpet & Upholstry Cleaning &c., 213 Ga. App. 439, 440 (1) (444 SE2d 857) (1994) (justifiable reliance shown where plaintiff relied on repeated and good advertising by defendant in hiring carpet cleaner).

       OCGA § 10-6-1.

        Wielgorecki v. White, 133 Ga. App. 834, 838 (1) (212 SE2d 480) (1975).

        Got-It Hardware &c. v. City of Ashburn, 155 Ga. App. 214, 215 (270 SE2d 380) (1980).

        Southern Fed. Sav. &c. Assn. v. Firemen’s Benevolent Assn., 72 Ga. App. 663, 666 (34 SE2d 674) (1945); see also Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 797-799 (4) (449 SE2d 128) (1994) (whether ratification of forgery occurred is question of fact where employee was acting outside the scope of his employment but for the benefit of his employer and employer retained benefits of his actions).

       OCGA § 16-14-3 (8), (9).

       OCGA § 16-14-3 (9) (A) (viii).

       OCGA § 16-14-3 (9) (A) (xv).

       See Chicago Hardware &c. Co. v. Letterman, 236 Ga. App. 21, 25 (3) (510 SE2d 875) (1999).


author: Phipps, Judge. Pope, Presiding Judge,

text:
    A99A1293.
    THOMPSON v. THOMPSON.
    (526 SE2d 576)
   Phipps, Judge.

This is a child custody dispute which former spouses Tommy and Cynthia Thompson have litigated in the courts of Georgia and Florida. The Georgia court awarded permanent custody to the mother. The Florida court later changed custody to the father. We granted the mother’s application for discretionary appeal of an order of the Georgia court domesticating the Florida court’s custody modification award. Jurisdictional issues are raised under the Uniform Child Custody Jurisdiction Act (UCCJA), which has been enacted in both Georgia and Florida, and under the federal Parental Kidnapping Prevention Act (PKPA).

The parties were married in Florida in 1986. Later that year, they moved to Georgia where they had two children, one born in September 1986 and the other in September 1990. In June 1992, the family moved to North Carolina but then back to Florida between February 27 and March 1, 1994. After leaving North Carolina, the family resided in Florida until August 8, whereupon the mother took the children and moved to Georgia where her parents lived. According to the mother, she fled the marital residence in Florida to escape domestic abuse. According to the father, she simply absconded with the children.

On September 8, the mother instituted a separate maintenance proceeding in the Cherokee Superior Court. Among other things, she sought child custody. The father appeared in the proceeding and sought to dismiss based on lack of jurisdiction. On October 13, the father filed a divorce petition in the Circuit Court for Leon County, Florida. He too sought child custody. The mother answered the divorce petition and moved to dismiss for lack of subject matter jurisdiction. She also counterpetitioned for divorce and child custody. The Florida court was informed of the pendency of the Georgia action in both the divorce petition and counterpetition.

On November 16, the Georgia superior court entered an order finding that it had jurisdiction under the UCCJA. The court awarded permanent custody of the children to the mother with supervised visitation to the father at a location to be decided by the mother. This order was not appealed. In December 1995, the Florida circuit court entered a judgment finding that it had personal and subject matter jurisdiction in the divorce action and dissolved the parties’ marriage but deferred ruling on other issues. In February, the Florida court entered an order recognizing the existence of the custody award entered in the separate maintenance proceeding in Georgia but denying the mother’s motion to dismiss the Florida action. She did not appeal. In June 1996, the Florida court entered an order awarding the mother temporary custody of the children, granting the father supervised followed by unsupervised visitation in Georgia during 20 alternating weekends, and reserving jurisdiction over child custody issues. In May 1998, the Florida court entered an order expanding the father’s visitation rights and allowing him to exercise them in Florida but providing that they would be supervised.

The mother then filed a complaint in the Cherokee Superior Court seeking a declaratory judgment as to the rights of the parties under the conflicting child custody orders entered in Georgia and Florida. Approximately two weeks later, the Florida court entered an order finding the mother in contempt of visitation orders it had entered within the prior month and in repeated violation of others. The court proceeded to award custody of the children to the father. A week later, the father filed a complaint in the Cherokee Superior Court seeking domestication of the Florida court’s custody modification order.

Initially, the Georgia superior court conducted a hearing at which it found that at present Georgia is probably the “home state” of the children under the UCCJA but stating that it would stay the actions filed by the mother and father while referring the matter to the Florida court for jurisdictional findings and recommendations. The Florida court later entered a judgment finding that UCCJA jurisdiction of this dispute was and is in Florida. The court adhered to its earlier decision to award child custody to the father, finding that this would be in the best interests of the children.

At a subsequent hearing, the Georgia superior court ruled that the mother is barred from contesting the jurisdiction of the Florida court because she was a party to the divorce proceeding and did not appeal the denial of her motion to dismiss. The court also determined that, at least under Georgia law, the divorce action superseded the separate maintenance proceeding. After considering a motion by the mother to stay domestication of the Florida judgment, the Georgia court held two additional hearings and then entered the order of domestication. Held:

Section 3 of the UCCJA provides that a state court which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree under four delineated circumstances. The first is when the state is or had been the “home state” of the child; the second is when the child and at least one of his parents has a “significant connection” with the state; the third is in an “emergency”; and the fourth is where no other state has jurisdiction under prerequisites substantially in accord with the UCCJA and the state at issue is the more “appropriate forum” to determine child custody.

A state is the home state of the child if the child and his parents or parent have lived in the state for at least six consecutive months. A state court has “home state” jurisdiction if it is the home state when the proceeding is commenced or had been the home state within six months before the commencement of the proceeding and the child is absent from the state because of his removal or retention by a parent or person claiming custody. “Significant connection” jurisdiction exists if the child and his parents or the child and at least one contestant have a significant connection with the state, and it is in the best interest of the child that the court assumes jurisdiction because there is available in the state substantial evidence concerning the present or future circumstances of the child. “Emergency” jurisdiction requires the physical presence of the child in the state coupled with abandonment or with actual or threatened mistreatment, abuse, or neglect. A state may be the “appropriate forum” where no other state has UCCJA-type jurisdiction or has declined to exercise such jurisdiction on the ground that the state at issue is the more appropriate forum and assumption of jurisdiction would be in the child’s best interest.

Consequently, jurisdiction of a custody dispute under section 3 of the UCCJA is primarily based on the existence of a sufficient connection between the child or children and the state. The jurisdictional standards in subsection (c) of the PKPA are substantially the same as those in UCCJA section 3.

Where a state court has exercised or is exercising jurisdiction “consistently with” or “substantially in conformity with” the foregoing jurisdictional standards, both subsection (g) of the PKPA and section 6 (a) of the UCCJA* preclude the court of another state from exercising jurisdiction in any custody proceeding commenced during the pendency of the earlier proceeding, although the UCCJA permits the court in the later action to assume jurisdiction if the earlier proceeding is stayed because the other state is a more appropriate forum or for other reasons. Where a court is informed that a previously filed custody proceeding is pending in another state, section 6 (c) of the UCCJA states that the court must stay the action and communicate with the other court to the end that the issue may be litigated in the more appropriate forum. Section 6 (c) has been described as “ ‘the very essence of’ the UCCJA because when it is strictly complied with, jurisdictional conflicts are resolved and conflicting orders prevented. [Cit.]”

Although informed of the pendency of the previously filed custody proceeding in Georgia, the Florida court assumed jurisdiction over issues of child custody in the divorce action in disregard of the requirement imposed by section 6 (c). The Florida court proceeded in this manner even though it appears without dispute from the record in this case that neither Florida nor Georgia was the home state of the children when the separate maintenance and divorce actions were filed, and Georgia had at least as arguable a claim to jurisdiction under other UCCJA/PKPA standards as did Florida.

Nonetheless, in the respective proceedings the Georgia and Florida courts determined that they each had UCCJA jurisdiction. Because both parents were parties to the proceedings in both states, neither should be able to relitigate the jurisdictional issues. In the words of Chaddick v. Monopoli, this would give them an impermissible “second bite of the apple.” Because the Georgia proceeding was the first to be filed, the husband is the first to be barred.

Moreover, by the time the Florida court modified the Georgia custody order so as to transfer custody to the father, Georgia unquestionably was the home state of the children. Under section 14 of the UCCJA and subsection (f) of the PKPA, a court of a state may modify a custody determination of a court of another state only if the court issuing the modification decree has jurisdiction and the court rendering the initial decree no longer has jurisdiction or declines to exercise it.

Decided December 3, 1999

Reconsideration denied December 20, 1999.

William C. Gentry, for appellant.

Tommy J. Thompson, pro se.

The superior court determined that the modification award is nonetheless entitled to domestication under Georgia law giving divorce decrees priority over separate maintenance orders. In this regard, cases such as Browne v. Browne and Southworth v. Southworth hold that under our separate maintenance statute (OCGA § 19-6-10), adjudication of the issue of permanent alimony in a separate maintenance order is superseded by an award of alimony in a divorce decree. But OCGA § 19-6-10 does not make specific reference to child custody orders. And under Georgia’s Child Custody Intrastate Jurisdiction Act (CCIJA), a permanent award of child custody to any person by court order prohibits the filing of any complaint seeking to obtain a change of custody in any county other than the county of residence of the person who has been awarded custody. Consequently, where permanent child custody has been awarded to a party to a separate maintenance proceeding, the other party is not necessarily entitled to obtain a change of custody in a subsequent divorce action. The CCIJA acts as a constraint. It follows that the UCCJA and PKPA have the same effect, as the purpose of all three statutes is the avoidance of jurisdictional conflicts. In this case, the Florida court’s award of custody to the father is not entitled to recognition under either the UCCJA or the PKPA.

Judgment reversed.

Smith, J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I agree with the majority that the Florida court never had subject matter jurisdiction to determine custody of the children. But in my opinion, the question of whether Florida divorce proceedings supersede custody determinations in Georgia separate maintenance actions is therefore moot. Because the Florida court never had jurisdiction of custody issues, it could not make any custody ruling that might supersede an earlier ruling.

       See OCGA § 19-9-43 (a); Youmans v. Youmans, 247 Ga. 529, 532 (276 SE2d 837) (1981).

       OCGA § 19-9-43 (a) (l)-(4).

       OCGA § 19-9-42 (5).

       OCGA § 19-9-43 (a) (1).

       OCGA § 19-9-43 (a) (2).

       OCGA § 19-9-43 (a) (3).

       OCGA § 19-9-43 (a) (4).

       Although jurisdiction of a custody dispute under the UCCJA is referred to as “subject matter” jurisdiction, Wilson v. Gouse, 263 Ga. 887 (441 SE2d 57) (1994), it is not subject matter jurisdiction in the traditional sense of that term. See Craighead v. Davis, 162 Ga. App. 145, 146 (1) (290 SE2d 358) (1982) (holding that a Georgia superior court had subject matter jurisdiction in a case governed by the UCCJA because the Georgia Constitution grants superior courts jurisdiction over interstate child custody disputes). The UCCJA contains no express requirements concerning personal jurisdiction and, in fact, authorizes a court to assume jurisdiction over a custody dispute notwithstanding the absence of a connection between the state and a parent or contestant. In a sense, UCCJA jurisdiction is akin to in rem jurisdiction, with the child or children being the res.

       28 USC § 1738A (c) (2) (A)-(D).

       28 USC § 1738A (g) (“consistently with”).

       OCGA § 19-9-46 (a) (“substantially in conformity with”).

       OCGA § 19-9-46 (c). '

        Chaddick v. Monopoli, 714 S2d 1007, 1010 (Fla. 1998).

       Id. at 1010-1011.

       OCGA § 19-9-54 (a).

       28 USC § 1738A (f); see Garrett v. Garrett, 267 Ga. 356, 357 (1) (477 SE2d 804) (1996).

       242 Ga. 107 (249 SE2d 594) (1978).

       265 Ga. 671, 672 (1) (461 SE2d 215) (1995).

       OCGA §§ 19-9-22; 19-9-23.