text:
    A92A2308.
    In the Interest of J. C. J., a child.
    (428 SE2d 643)
   Blackburn, Judge.

A petition for termination of the parental rights of the parents of J. C. J. was filed in the Juvenile Court of Clayton County. The father, who had never lived with or taken responsibility for the child, voluntarily surrendered his parental rights. The mother appeals from the court’s order terminating her rights.

The Department of Human Resources has a history of involvement with the mother dating back to 1982. She has three adult daughters, all of whom were removed from her custody for extended periods of time, and a younger daughter and son, W. R. J. and J. C. J., who were thirteen and seven years of age respectively at the time of the hearing. W. R. J. and J. C. J. were removed from the home in September 1987 (when J. C. J. was three) because of physical abuse by a man who was living with the mother and lack of supervision by the mother. After an October 1987 order finding him a deprived child, J. C. J. lived in several foster homes and was hospitalized for almost a year because of severe emotional problems. He has lived with the same foster family since his release from the hospital in May 1990.

J. C. J.’s caseworkers, therapists, and psychiatrists testified concerning his special needs. He has emotional problems resulting in part from prior abuse and lack of stability in his life, and he also suffers from attention deficit disorder and a learning disability, which stem from neurological problems. He attends a specialized school program, participates in individual and group therapy, and is receiving medication for his disorders. He lives with a foster family trained to deal with special needs children. The witnesses explained that J. C. J. has high levels of hyperactivity and anxiety, experiences difficulty dealing with anger, and can become destructive and violent to himself and others, and that as a result he needs 24-hour supervision and a controlled, stable environment. Evidence was adduced that he becomes more anxious and violent before and after visits with his mother and court hearings concerning his status. The therapist testified that after observing the mother in therapy sessions, he had concluded that she had very little understanding of J. C. J.’s condition and did not have the parenting skills required to raise a child with his problems. The therapist explained further that J. C. J. was at great risk for antisocial and violent behavior, and the quality of his upbringing over the next few years would determine whether these tendencies could be checked. A caseworker opined that the mother’s proposed plan for caretaking and supervision was inadequate for J. C. J.’s special needs. The therapist and caseworkers opined that J. C. J. needed a final resolution of his status to eliminate this uncertainty from his life, and they recommended that the mother’s rights be terminated and that J. C. J. remain with the foster family, who expressed interest in adoption.

In 1987 and again in 1988 and 1990, the court ordered the mother to obtain housing and stable employment, to pay child support, to obtain substance abuse counselling and treatment, and to participate in J. C. J.’s therapy. The mother did not obtain housing until December 1991, when she moved into a two-bedroom apartment she was sharing with W. R. J. as of the May 1992 termination hearing. The mother, who has a seventh-grade education and limited job skills, has been employed sporadically over the four-year period in question, and began a new job several months before the hearing. She has made only a few of the $10 per week child support payments ordered by the court. The mother has been convicted on charges of DUI and shoplifting and was on probation for shoplifting at the time of the hearing. Evidence was adduced that the mother has maintained the weekly visits with J. C. J. permitted by the court, but her participation in his therapy has been erratic. The mother testified that she has finally acknowledged her drinking problem and has been attending counselling sessions for approximately one year. In response to the court’s prior order to set forth a plan for caring for J. C. J., the mother explained that her 13- and 19-year-old daughters would get him ready for school after she left for work at 6:00 a.m. and keep him after school and during the summers.

The decision to terminate parental rights is a two-step process. First, the court must determine “whether there is present clear and convincing evidence of parental misconduct or inability as provided in [OCGA § 15-11-81 (b)].” OCGA § 15-11-81 (a). If so, “the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child . . . including the need for a secure and stable home.” Id. If parental rights have been terminated by the lower court, upon appellate review this court must determine “whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.” (Citations and punctuation omitted.) In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991).

The four elements necessary to a finding of “parental misconduct or inability” are set forth in OCGA § 15-11-81 (b) (4) (A). The mother agreed to stipulations in prior orders that J. C. J. was a deprived child because of the mother’s lack of stable employment or housing, see OCGA § 15-11-81 (b) (4) (A) (i), and the evidence of prior drinking, criminal behavior, physical abuse, neglect, and repeated failure to comply with court-ordered plans authorized a finding that the deprivation resulted from the mother’s lack of care or control. See OCGA § 15-11-81 (b) (4) (A) (ii), (B) (ii)-(v); see also In the Interest of J. M. C., supra. Moreover, given the nature and severity of J. C. J.’s emotional and neurological problems and the testimony of the therapists and caseworkers, no question exists that continued deprivation will cause serious harm. See OCGA § 15-11-81 (b) (4) (A) (iv).

The remaining question is whether the cause of the deprivation is likely to continue or will not likely be remedied. See OCGA § 15-11-81 (b) (4) (A) (iii). While, as the mother contends, “past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. [Cits.]” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). Courts also may consider the need for stability in the child’s life and the adverse effects on children who remain in foster care for long periods of time. Id. The special medical needs of a child and the parent’s inability to provide for those needs likewise are proper subjects of inquiry for the courts. In re M. L. G., 170 Ga. App. 642, 645-647 (317 SE2d 881) (1984).

Decided March 3, 1993.

Cowen & Cowen, Linda S. Cowen, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Foster & Foster, Michael D. Anderson, for appellee.

Here, although the mother had obtained employment and an apartment shortly before the hearing, the juvenile court noted that she had repeatedly failed to comply with prior orders over a five-year period and further observed that the mother’s efforts at compliance occurred only when a court hearing was scheduled. Given the evidence of the mother’s past behavior and the length of time that had elapsed with no improvement in the situation, and considering further the severity of J. C. J.’s condition, his need for stability and constant supervision, and the mother’s apparent inability to understand his problems or provide adequate care or supervision, the juvenile court had clear and convincing evidence that the conditions of deprivation were likely to continue. See In the Interest of J. M. C., supra; see also In the Interest of J. R., 201 Ga. App. 199 (410 SE2d 458) (1991); In the Interest of J. L. Y, supra at 255-257 (2). Under these circumstances, we cannot say the juvenile court erred in terminating the mother’s parental rights. See In the Interest of J. R., supra at 201 (1).

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


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A2424.
    LEONARD v. MILLER et al.
    (428 SE2d 646)
   Carley, Presiding Judge.

Seeking to recover for injuries suffered in a vehicular collision, appellee-plaintiffs brought suit against appellant-defendant. The case was tried before a jury and a verdict in favor of appellees was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant moved for a mistrial on the ground that appellees’ counsel had impermissibly raised the issue of insurance coverage during voir dire. The denial of this motion is enumerated as error.

The record demonstrates that, after the trial court had qualified the panel as to appellant’s liability carrier, appellees’ counsel asked several additional questions which were addressed to the panel as a whole and not to any individual prospective juror. The import of these additional inquiries was merely to determine whether any of the prospective jurors or a family member had ever worked in the field of insurance. “ ‘Where, as here, interest of the insurance company is admitted, it cannot be said that counsel’s examination extended beyond the permissible limits.’ Under the facts and circumstances which existed in the case at bar we find no abuse of discretion by the trial court in having permitted these additional voir dire questions.” Parsons v. Harrison, 133 Ga. App. 280, 282 (1) (211 SE2d 128) (1974).

2. Appellant requested charges on contributory negligence, comparative negligence, and the avoidance doctrine. The trial court’s refusal to give these requests is enumerated as error.

The collision occurred at an intersection whereat appellee Mrs. Miller had the right-of-way and appellant had a stop sign and both were proceeding at a lawful rate of speed. “There being no evidence whatsoever of an initial negligent act by [appellee Mrs. Miller], any negligence on [her] part, if it existed at all, must have been [her] failure ‘to avoid the consequences of the active negligence of ([appellant]).’ [Cit.] However, we find no evidence upon which ... a charge [regarding appellee Mrs. Miller’s negligent failure] to avoid the collision could be based. ‘A driver having the right of way . . . has the right to assume that others will obey the rule of the road (cit.) and he has a right to proceed at a reasonable speed even though he sees another vehicle approaching. What he cannot do is to test a known and obvious peril, and after it is or should be clearly apprehended that a collision is threatened or imminent, he cannot blindly and recklessly proceed without regard to conditions and consequences. (Cit.)’ (Emphasis supplied.) [Cit.]” Moore v. Price, 158 Ga. App. 566, 569 (2) (281 SE2d 269) (1981). “A review of the record demonstrates that appellant produced no evidence to authorize a finding that, in the exercise of ordinary care, appellee [Mrs. Miller] could have avoided the collision after she saw or should have seen that appellant had entered into the intersection and was crossing appellee’s lane of traffic.” (Emphasis supplied in part.) Kicklighter v. Jones, 202 Ga. App. 654, 655 (415 SE2d 302) (1992). See also Carrandi v. Sanders, 188 Ga. App. 562 (1) (373 SE2d 661) (1988). It follows that it would have been “error to give any charge regarding [appellee Mrs. Miller’s] negligence.” Moore v. Price, supra at 570 (2). Compare Jenkins v. Burns, 202 Ga. App. 579, 580 (415 SE2d 30) (1992) (wherein “the parties’ accounts of the collision and the skid marks described by the officer” were found to authorize the giving of a charge on the plaintiff’s negligence).

Garner v. Driver, 155 Ga. App. 322, 323 (1) (270 SE2d 863) (1980) is not authority for the giving of the requested charges in the instant case. That case involved a head-on collision, not a collision at a controlled intersection. The investigating officer in Garner was of the opinion that the defendant had crossed the centerline, but the jury was obviously not bound by the officer’s opinion as to the defendant’s negligence. As to the plaintiff’s negligence, the investigating officer “conceded that the debris location could be just as consistent with both vehicles being over the center line as it [was] with just one of the vehicles being over the center line.” (Emphasis supplied.) Garner v. Driver, supra at 323 (1). Thus, there was at least some evidence of the plaintiff’s negligence in causing the head-on collision in Garner. The instant case involves a collision at a controlled intersection, not a head-on collision, and there is no evidence that appellee Mrs. Miller, who had the right-of-way, was negligent in either causing or avoiding the collision which resulted from appellant’s failure to yield the right-of-way. Accordingly, it is not Garner, but the decisions in Kicklighter, Carrandi and Moore which control in the instant case.

3. Appellant requested a charge on impeachment. The trial court gave a general charge on the credibility of witnesses, but refused to give appellant’s requested charge on impeachment. The refusal to give this request is enumerated as error.

The charge, as requested by appellant, referred to impeachment by prior inconsistent statements and by general bad character. These are, of course, two entirely separate and distinct methods of impeachment. OCGA §§ 24-9-83; 24-9-84. There was evidence of appellee Mrs. Miller’s prior inconsistent statements. There was, however, no evidence of the general bad character of appellees or any of their witnesses. Accordingly, even though that part of appellant’s request regarding impeachment by prior inconsistent statements could have been given, it was not reversible error for the trial court to refuse to give any part thereof. “A request for instruction to the jury must be correct as a whole. It should be perfect in itself, or the court should refuse it. [Cits.]” Bridges v. Donalson, 165 Ga. 228, 233 (5) (140 SE 497) (1927). The inapplicability of that part of appellant’s request regarding impeachment by general bad character rendered the request, as a whole, imperfect and the trial court was authorized to refuse to give it on that ground. “ ‘The court may refuse requests which need qualifications, modification or restriction. It has been said that unless the charge ought to be given in the very terms in which requested, it should be refused altogether. The trial court is not under any obligation to rewrite an instruction which either party requests to be given.’ ” Tatum v. State, 57 Ga. App. 849, 853 (3) (197 SE 51) (1938).

Decided March 3, 1993.

Miller & Towson, Wallace Miller III, James V. Towson, George H. Hartwig III, for appellant.

Westmoreland, Patterson & Moseley, Thomas H. Hinson II, for appellees.

Since it was not reversible error to refuse to give appellant’s imperfect request, we need not decide whether the decision in Mattarochia v. State, 200 Ga. App. 681, 684 (5d) (409 SE2d 546) (1991) mistakenly equated general credibility with impeachment by a specific method, such that the giving of a charge on the former obviates the requirement that a trial court give an authorized and proper request on the latter.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2433.
    INMAN et al. v. TRUST COMPANY BANK.
    (428 SE2d 805)
   Carley, Presiding Judge.

The relevant facts in the instant appeal are as follows: After repossessing and selling a motor vehicle which it had financed for appellant-defendants, appellee-plaintiff brought suit to recover a deficiency judgment. Appellants answered and, after discovery, appellee moved for summary judgment. Appellee relied upon the affidavit of one of its officers who, based upon his prior experience, was of the opinion that the vehicle had been sold for its fair market value. The affidavit of appellee’s expert also referred to his reliance upon a “NADA Guide” which was not otherwise identified and no copy of which was attached thereto. Compare Lee v. Trust Co. Bank, 204 Ga. App. 28 (2) (418 SE2d 407) (1992). In opposition to appellee’s motion, one of the appellants submitted an affidavit wherein he opined that, based upon his own prior experience, the fair market value of the vehicle was greater than the amount for which it had been sold by appellee. The trial court granted summary judgment in favor of appellee and appellants appeal.

“For purposes of summary judgment, a plaintiff-creditor may not meet his burden of proving the value of the collateral by opinion testimony. [Cit.]” Bales v. Central Bank &c. Co., 204 Ga. App. 675, 676-677 (420 SE2d 358) (1992). Accordingly, appellee did not meet its initial burden as the movant for summary judgment. Moreover, even assuming that the affidavit of appellee’s expert was otherwise sufficient to meet appellee’s initial burden, the affidavit submitted in opposition to appellee’s motion was likewise sufficient to create a genuine issue of material fact as to the fair market value of the vehicle. A basis upon which appellants, as owners of the vehicle, could have formed a correct opinion as to the fair market value thereof was adequately shown. Godowns v. Cantrell, 186 Ga. App. 100 (366 SE2d 415) (1988). Compare Lee v. Trust Co. Bank, supra at 28 (2) (wherein the defendant-creditor failed to adduce any evidence in opposition to the plaintiff-creditor’s showing). It follows that the trial court erred in granting summary judgment in favor of appellee.

Decided March 3, 1993.

Sutton & Associates, Berrien L. Sutton, for appellants.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellee.

Judgment reversed. Pope, C. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A1870.
    PITTS v. STATE OF GEORGIA.
    (428 SE2d 650)
   Johnson, Judge.

Narcotics officers executing a search warrant at the residence of Jethro Pitts and his girl friend Pam Mosely found cocaine, marijuana, and currency totaling $64,258. Though Pitts himself was not present when the officers initiated the search, they found an additional $1,240 on Pitts’ person when he returned. At the time of the search, Pam Mosely told the officers that the drugs were hers. The drugs and money were seized, and Pitts was charged with multiple violations of the Georgia Controlled Substances Act. The state filed a complaint seeking forfeiture of the money. Pitts filed an answer claiming ownership of the money and asserting generally that the money was not subject to forfeiture. Based upon evidence presented at the forfeiture hearing, the trial court found that the money was contraband subject to forfeiture under OCGA § 16-13-49, and entered an order of disposition in favor of the state. Pitts appeals.

1. Pitts contends that the trial court erred in disallowing evidence concerning the legality of the search. At the forfeiture hearing, Pitts attempted to challenge the basis for the underlying search warrant. In the colloquy between counsel for both parties and the court over an objection to questions dealing with the basis for the search warrant, appellant’s counsel made it clear that he wished to explore whether there had been probable cause to issue the search warrant. The trial judge concluded that a challenge to the search warrant was more properly the subject of a motion to suppress at the criminal trial. A motion to stay the forfeiture proceedings pending the resolution of the criminal trial was also denied. The issue presented to us for consideration is whether a collateral attack on the legality of the underlying search may be made in the context of forfeiture proceedings pursuant to OCGA § 16-13-49, when the validity of the search has not been previously adjudicated in a criminal action. We hold that it may.

This appears to be an issue of first impression in Georgia, but the federal courts have examined the issue in the context of the analogous federal forfeiture statute, 21 USCA § 881. Because forfeiture proceedings are quasi-criminal in nature, the exclusionary rule has been held to apply. United States v. Elgersma, 929 F2d 1538, 1548, n. 21 (11th Cir. 1991). “It would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible.” One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 701 (85 SC 1246,14 LE2d 170) (1965). Therefore, if the search was illegal, it would render the evidence produced by the search tainted and inadmissible. A forfeiture action is not barred by an illegal seizure, however, if independent evidence exists connecting the forfeited property to illegal activities. A conviction in the underlying criminal case acts as independent evidence from the illegal seizure and renders the legality of the seizure irrelevant. See generally United States v. $80,080.00 in U. S. Currency, 779 FSupp. 169, 173 (N.D. Ga. 1991). In the case before us, however, the forfeiture proceedings preceded the criminal action. Therefore Pitts was not estopped from raising a collateral challenge to the underlying search warrant. We conclude that in those instances where the issue of the legality of the underlying search has not been resolved in the context of a criminal action, it may be addressed, if raised, at the forfeiture proceedings. This ruling is consistent with our reading of OCGA § 16-13-49 (g) (3), requiring that a seizure in forfeiture actions be made with process or conducted in a good faith belief that probable cause exists to conduct the search. We reverse and remand this case to the trial court for resolution of the issue of the legality of the search at a new trial.

2. Pitts further complains that the trial court erred in finding that the money was subject to forfeiture.

OCGA § 16-13-49 (d) declares six categories of property to be contraband in which no person shall have a property right. The state need only prove that the property as to which forfeiture is sought falls within one of these six categories in order to prevail. The state asserted in its amended complaint that the money seized satisfied two of the provisions of the statute, subsection (6) because the money was “found in close proximity to any controlled substance or marijuana” and subsection (3) because the money “was, directly or indirectly, used or intended for use in [a] manner to facilitate a violation of [OCGA § 16-13-49] or of the laws of the United States or any of the several states relating to controlled substances ... or any proceeds derived or realized therefrom.”

Although there were conflicts in the evidence presented at the trial, the court was authorized by the evidence to find that Pitts had stolen the money found in the house from a drug supplier who had obtained the money as proceeds from an illegal drug sale, and that Pitts had purchased the house in which the money was found for the purposes of using it as a “safe house” for illegal drug activity. We find the evidence in the record sufficient to support the trial court’s conclusion that the money seized from the house was directly used in a manner to facilitate the distribution of controlled substances. Therefore, we conclude that its judgment of forfeiture as to the $64,258.20 found in the house was proper.

As noted above, Pitts was not in the house at the time the officers began their search. The remaining $1,240 was found on his person. This portion of the money was not in close proximity to the areas in which the contraband was found, and there is no evidence in the record to show that this portion of the money was directly or indirectly used or intended for use in a manner to facilitate a violation of the Georgia Controlled Substances Act. Nor is there any other evidence in the record to show that this portion of the money was subject to forfeiture under any other provision of the Act. Though it was properly subject to seizure because it was seized incident to his arrest as contemplated by OCGA § 16-13-49 (g) (2), the state still must prove that it was subject to forfeiture. Because the evidence is insufficient to support such a conclusion, we find that the state failed to carry its burden of showing that this portion of the money was subject to forfeiture under the Act. Therefore, the trial court erred in including the $1,240 in the award, and we must reverse as to that portion of the judgment.

Decided March 4, 1993.

I. Mark Rubin, for appellant.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction. Pope, C. J., and Carley, P. J., concur.

       We note that Pitts did not raise this issue in his answer as required by OCGA § 16-13-49 (o) (3). Nonetheless, the state did not challenge the issue on this ground when raised at trial. Therefore we will address the issue on its merits.

       Compare Morrow v. State of Ga., 186 Ga. App. 615 (367 SE2d 854) (1988) (van was taken by Georgia authorities without any judicial process from the custody of Tennessee authorities who had seized it pursuant to a search warrant); Waller v. State, 251 Ga. 124 (303 SE2d 437) (1983) (discussion of seizures in the context of OCGA § 16-14-7 (f), the Georgia Racketeer Influenced & Corrupt Organizations Act (RICO)); and Phillips v. State, 167 Ga. App. 260, 262 (1) (305 SE2d 918) (1983) (forfeiture of van seized in an illegal search held to be improper in criminal proceeding).


author: Pope, Chief Judge.

text:
    A92A2369.
    SESSIONS v. THE STATE.
    (428 SE2d 652)
   Pope, Chief Judge.

Defendant Alexander Sessions was convicted of two counts of entering an automobile or motor vehicle. See OCGA § 16-8-18. He appeals following the denial of his motion for new trial.

1. Defendant contends the trial court erred in admitting evidence of his prior convictions for entering an automobile, arguing that the circumstances surrounding two of the four previous crimes were factually dissimilar to the offenses for which defendant was being tried. However, contrary to defendant’s assertions on appeal, we do not think the fact that defendant entered different types of vehicles on different occasions or that the defendant used different methods to obtain entry into the vehicles renders the complained of evidence inadmissible. “ ‘There is no requirement that the other transaction must be identical in every aspect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.’ (Citations and punctuation omitted.) Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129) (1992).” Carter v. State, 205 Ga. App. 885, 886-887 (424 SE2d 81) (1992). Our review of the record shows the trial court did not err in admitting evidence of similar crimes. See Woolfolk v. State, 202 Ga. App. 59, 61 (413 SE2d 242) (1991).

2. Defendant also enumerates as error the denial of his motions for mistrial, contending that the trial court improperly admitted irrelevant and unduly prejudicial testimony. The record shows that the trial court allowed several of the State’s witnesses who testified concerning the previous similar transactions also to testify about other crimes defendant committed during the commission of the similar crimes, ruling that such evidence was admissible as part of the res gestae of the previous similar crimes. Specifically, the trial court admitted testimony from a police officer who arrested defendant for one of the prior instances of entering an automobile attesting that cocaine was found in defendant’s truck on this previous occasion and that defendant stated to the officer that he was urinating behind the truck when the officer approached him. Another witness was allowed to testify that during a struggle at another crime scene defendant reached for a gun concealed in a paper bag. We agree with defendant that this testimony revealed additional criminal acts which were unrelated and irrelevant to the crimes for which defendant was being tried, and that only that portion of the witnesses’ testimony pertaining to the previous similar crimes was admissible at trial. Bacon v. State, 201 Ga. App. 639 (1) (411 SE2d 783) (1991); Jarrad v. State, 195 Ga. App. 704, 706 (3) (394 SE2d 555) (1990). Because we can discern no other proper purpose for admission of the complained of evidence, “ ‘it is our view that its only purpose was to attempt to show bad character. In the absence of interjection of the issue of character by the defendant, the evidence was inadmissible. (Cits.)’ ” Bacon, 201 Ga. App. at 640 (1) (a).

Decided March 4, 1993.

We therefore take this opportunity to instruct the bench and bar that just as documentary evidence must be redacted to eliminate inadmissible evidence (which the trial court did in this case), so should the State’s witnesses be instructed to limit their testimony to the crimes which have properly been determined to be admissible as constituting evidence of similar crimes. Uniform Superior Court Rule 31.3 (C) provides that “[i]n every case, the prosecuting attorney and defense attorney shall instruct their witnesses not to refer to similar crimes, transactions or occurrences, or otherwise place the defendant’s character in issue, unless specifically authorized by the judge.” Likewise, it is incumbent upon the trial court to strike inadmissible and prejudicial testimony and instruct the jury to disregard inadmissible evidence. Bacon, 201 Ga. App. at 640 (1) (b).

Because the trial court in this case erroneously admitted legally irrelevant and prejudicial evidence, defendant’s conviction must be reversed and a new trial granted. See Ledford v. State, 202 Ga. App. 694 (1) (415 SE2d 693) (1992); Bacon, 201 Ga. App. at 640 (1) (a); Jarrad, 195 Ga. App. at 706 (3).

Judgment reversed. Carley, P. J., and Johnson, J., concur.

Beauchamp & Associates, Robert M. Beauchamp, Borough & Sizemore, Kermit S. Borough, Jr., for appellant.

Britt R. Priddy, District Attorney, Francis D. Hand, Jr., Assistant District Attorney, for appellee.

       We decline to hold, however, that unobjected to testimony concerning a statement defendant made to a police officer demonstrating defendant’s familiarity with the criminal justice system also constituted reversible error in this case.


author: Andrews, Judge.

text:
    A92A1978.
    CARR v. CARR.
    (429 SE2d 95)
   Andrews, Judge.

We granted the application for appeal in this child custody matter to determine the validity of the trial court’s order granting summary judgment.

The parties here, Pitts and Virginia Carr, were divorced by final judgment and decree of the Fulton Superior Court effective July 23, 1987. The decree awarded shared custody to the parties of their minor child, William, born in 1983, and ordered that “meaningful decisions be jointly made whenever possible.” Under the decree, the mother was the primary custodial parent and the father was the secondary custodial parent. At the time of the decree both parties resided in Atlanta.

The decree set forth the court’s finding that both parents had equal parenting skills and interest in the child. The court stated: “because the child appears to be well-adjusted to his routine and environment, the Court feels that it would be in the best interest of the child that in the event that either parent moves to another city (outside the metropolitan Atlanta area) or another state, then the primary residence of the child shall be with the non-moving parent who shall become the primary custodial parent if he or she is not already so designated and the parent who has moved to another city in another state will have the same visitation rights with the child as are here and above stated for the original secondary custodial parent.” There was no appeal from that decree.

Mrs. Carr filed this action for a declaratory judgment on October 16, 1991. In her action, she requested the court to declare void that portion of the decree which she described as a “self-executing change of custody,” contending that the provision constituted an impermissible attempt to prevent the parties’ minor child from being taken outside the Atlanta area to live and was void. She also sought an increase in child support payments.

Mrs. Carr then filed a motion for summary judgment in which she argued that she was entitled to a judgment declaring that the portion of the decree which stated that the parent who remained in Atlanta would be the custodial parent amounted to an unenforceable attempt on the part of the trial court to retain jurisdiction over the issue of custody. Mr. Carr also filed a motion for summary judgment in which he contended that the provision was not void as an attempt to retain jurisdiction, but was valid and enforceable as a self-executing change of primary custodian and change of visitation. The court granted Mrs. Carr’s motion and denied Mr. Carr’s motion. The court’s order found that “any provision which would foreclose the Court from consideration of other factors related to the child’s best interest is void. OCGA § 19-9-5 (b).” The court then determined that the subject provision of the decree constituted an impermissible attempt to retain permanent jurisdiction of custody issues in the trial court. From this order, Mr. Carr appeals.

In his first enumeration of error, Mr. Carr claims that the trial court erred in ruling that the self-executing provision in this joint custody order was void as a matter of law. He argues that this determination violates the spirit of the joint custody provisions of OCGA § 19-9-6.

We agree. Although a line of cases arguably supports the trial court’s ruling here, see, e.g., Evans v. Allen, 212 Ga. 193 (1) (91 SE2d 518) (1956); Anthony v. Anthony, 212 Ga. 356 (92 SE2d 857) (1956); Connell v. Connell, 222 Ga. 765 (3) (152 SE2d 567) (1966); Hollingsworth v. Peck, 226 Ga. 95 (172 SE2d 839) (1970); these cases involve neither joint custody under OCGA § 19-9-6, nor self-executing orders. In all of the above cases, the Supreme Court determined where the custody of a child had been awarded to one parent, provisions of the divorce decree prohibiting removal of the child from the jurisdiction of the court were void.

Here, contrary to Mrs. Carr’s assertions, the original order provided for joint custody of the child — it specifically stated that custody would be “shared.” The order evinces an intent for all of the decisions regarding the child to be shared. Despite Mrs. Carr’s attempts to characterize her custody of the child as sole, we find that the custody was joint. See generally OCGA § 19-9-6.

Because custody was with both parents and because the order was a self-executing provision which simply changed the primary custodial parent, the objected to portion of the trial court’s order was not void. That part of the court’s decree was necessary so that neither parent could defeat joint custody. Unlike the cases above, the order did not prohibit Mrs. Carr from moving, it simply set forth self-executing consequences if she decided to do so. Thus, the order was not an illegal attempt to retain jurisdiction, but was an attempt to give meaning to the shared custody arrangement. Thus, this case is distinguishable also from Mitchell v. Mitchell, 252 Ga. 46 (1) (311 SE2d 456) (1984), in which the joint custody agreement prohibited the parents from taking the children out of Georgia. See also Heard v. Vegas, 233 Ga. 911 (213 SE2d 873) (1975) (“a court cannot attempt to retain jurisdiction after its final order”).

Decided February 22, 1993

Reconsideration denied March 5, 1993

Heyman & Sizemore, William H. Major, for appellant.

The self-executing provision in the trial court’s decree here is more akin to the orders which were approved by the Supreme Court in Pearce v. Pearce, 244 Ga. 69, 70 (257 SE2d 904) (1979), and Weaver v. Jones, 260 Ga. 493, 494 (3) (396 SE2d 890) (1990). In Pearce, the court affirmed the finding that the mother was in contempt of a self-executing provision regarding custody. The order at issue in Pearce provided that within a year of the divorce, or at such time as the wife remarried if sooner than one year, the children would have the option of choosing the parent with whom to live. The order further provided that if the child opted to live with the father, the support provisions of the original order would be inverted.

In Weaver, supra, the Supreme Court approved a self-executing custody arrangement which provided that the child would live with the mother and child support would be paid by the father until the child was 14. The consent order provided that if the son “elects to live with the Husband when he attains the age of fourteen (14) years, the Wife shall pay the child support.” In upholding this self-executing provision, the Weaver court explained: “[A] self-executing change serves the interest of judicial economy by effecting the change of custody and the establishment of child support obligations without the necessity of court proceedings in a case, such as this one, where there are no allegations of parental unfitness.” Id. at 494. See also Tanner v. Tanner, 221 Ga. 406 (144 SE2d 740) (1965) (in the event the custodial mother left Ware County to attend school, custody would shift to defendant for the period of absence, although if the mother moved permanently, custody would not change); Hunnicutt v. Sandison, 223 Ga. 301 (154 SE2d 587) (1967); Holder v. Holder, 226 Ga. 254 (174 SE2d 408) (1970).

Accordingly, we reverse the trial court’s grant of summary judgment to Mrs. Carr on this issue, because we do not find that the provision is void as a matter of law. Because of this decision, we need not address Mr. Carr’s argument that the trial court erred in violating principles of res judicata since there was no showing of changed circumstances to warrant a change in custody.

Judgment reversed. Pope, C. J., and Parley, P. J., concur. Johnson, J., disqualified.

Rumsey & Ramsey, Penelope W. Rumsey, for appellee.


text:
    A92A2152.
    CROOK v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. MORGAN et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    A92A2153.
    (428 SE2d 802)
   Carley, Presiding Judge.

Seeking to recover for the death of their son, Mr. and Mrs. Jeffery Morgan brought suit against Mr. Michael Crook. Crook is afforded liability coverage under a homeowner’s policy issued by Georgia Farm Bureau Mutual Insurance Company (Insurer). Under the policy, the Insurer was obligated to defend Crook in a suit to recover damages for personal injury that was “caused by an occurrence. . . .” (Emphasis in original.) The policy defines “occurrence” as “an accident,” but “accident” is not otherwise defined. Having undertaken the defense of the Morgans’ tort action pursuant to a reservation of rights, the Insurer initiated the instant declaratory judgment action and sought a declaration that Crook was not afforded coverage under the policy. After discovery, the Insurer moved for summary judgment. The trial court granted the Insurer’s motion and the Morgans and Crook filed separate notices of appeal. The two appeals are hereby consolidated for appellate disposition in this single opinion.

In effect, the Insurer urges that there is no coverage because Crook was a mere bystander while the Morgans’ son committed acts which resulted in his own death. The death of the Morgans’ son may indeed have been the sole proximate result of his own voluntary acts, from the fatal consequence of which acts Crook owed no legal duty to rescue him. See Handiboe v. McCarthy, 114 Ga. App. 541, 543 (4) (151 SE2d 905) (1966). However, the issue of Crook’s ultimate liability for the death is obviously irrelevant to the instant question of whether the Insurer is obligated to defend him in the Morgans’ underlying tort action. Crook’s liability to the Morgans is an issue for resolution in the underlying tort action. The issue in the instant declaratory judgment action is the Insurer’s contractual liability to Crook. The Insurer has contracted to defend Crook against liability for personal injury claims which were the result of an “accident,” “even if the suit is groundless, false or fraudulent.” For purposes of construing this insurance policy, “ ‘[a]ccident’ means an event which takes place without one’s foresight or expectation or design.” OCGA § 1-3-3 (2). Compare Tolbert v. Duckworth, 262 Ga. 622 (423 SE2d 229) (1992) (discussing and discarding “legal accident” as a viable tort defense). In the underlying tort action, there are no allegations that Crook intentionally caused the death with “foresight or expectation or design.” Indeed, the undisputed evidence of record shows that the death occurred entirely without Crook’s intentional “foresight or expectation or design.” Accordingly, insofar as Crook, in his capacity as an insured, is concerned, the death of the Morgans’ son was clearly an “accident,” because it was an unintentional event which took place without his “foresight or expectation or design.”

Decided February 22, 1993

Reconsideration denied March 5, 1993

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for appellant (case no. A92A2152).

Jett & Liss, Joel I. Liss, for appellants (case no. A92A2153).

Fain, Major & Wiley, G. Keith Richardson, for appellee.

That the Morgans’ son may have caused his own death is obviously not a ground for the Insurer’s present refusal to defend Crook in the underlying tort action. Crook could assert a defense in the underlying tort action that, contrary to the allegations of Morgans’ complaint, the death was not an event for which Crook was legally answerable and that the underlying tort action is, therefore, “groundless.” The policy contractually obligates the Insurer to assert such a defense on Crook’s behalf, because the underlying tort action seeks to impose liability for an unintentional death which took place without Crook’s “foresight or expectation or design.” It follows that the trial court erred in granting the Insurer’s motion for summary judgment. The viability of any defense to Crook’s liability is a matter for resolution in the underlying tort action, but there is no basis for holding that Crook, rather than the Insurer, is responsible for mounting that defense.

Judgment reversed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2146.
    KRAUSE v. VANCE et al.
    (428 SE2d 595)
   Johnson, Judge.

Connie Vance Krause died by asphyxiation. Police found her nude body in the trunk of her parked car. Connie Krause’s parents, brothers and sister (the Vances) filed a complaint against Connie Krause’s husband, Hans-Juergen Krause, seeking to prevent him from receiving benefits under her life insurance policy and from inheriting her estate. In the complaint, the Vances allege that Krause killed his wife. A jury returned a verdict in favor of the Vances and Krause appeals.

1. In his first enumeration, Krause contends that the trial court erred in allowing an expert witness to answer a hypothetical question which assumed facts not in evidence. The witness testified that in his opinion the average temperature in the car trunk where Connie Krause’s body was found was 40 degrees fahrenheit. In reaching this opinion, the witness was asked to assume that the car, which was found by police in a parking lot on November 3,1989, was also in that lot on November 1 and 2. Krause argues that there was no evidence to support this assumption. The record, however, contains circumstantial evidence from which the jury could have concluded that the car was in the parking lot on November 1 and 2.

“Circumstantial evidence can be described as evidence which does not constitute direct proof with regard to the issue of fact or the hypothesis sought to be proven by the evidence; rather, circumstantial evidence constitutes proof of other facts consistent with the hypothesis claimed.” Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232 (367 SE2d 539) (1988). By Krause’s own testimony, the whereabouts of the car were accounted for on the morning of November 1. Krause testified that Connie Krause left home to go to work at approximately 8:00 that morning. She did not arrive at work, however, and the car was not seen again until its discovery in the parking lot on November 3. While this evidence does not directly prove that the car was placed in the lot on November 1, sometime after Connie Krause’s disappearance, and remained there until being discovered on November 3, it is consistent with that hypothesis.

“[W]here reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established. The trier of fact, and not the court, decides whether the assumed fact is actually proved by the circumstantial evidence. Nevertheless, it is for the court to decide whether a conclusion assumed is at least supported by the circumstantial evidence before allowing the matter to go to the jury for its determination as to whether the evidence actually established the fact.” (Citations and punctuation omitted.) Warmack v. Mini-Skools, Ltd.., 164 Ga. App. 737, 738 (1) (297 SE2d 365) (1982). Here, the trial court was authorized to determine that circumstantial evidence at least supported the conclusion that the car was placed in the parking lot on November 1 and remained there until its discovery on November 3. Although the circumstances proved might also support other conclusions, they were sufficient for the purpose of posing the hypothetical question to the expert witness. To the extent that the expert’s opinion was based on insufficient facts, the weight and not the admissibility of the expert testimony was affected. Buttrum v. State, 249 Ga. 652, 655 (7) (293 SE2d 334) (1982); Southern R. Co. v. Montgomery, 192 Ga. App. 308, 311 (2) (384 SE2d 907) (1989). Krause was free to explore on cross-examination the sufficiency of the evidence supporting the hypothetical question and to pose other possibilities supported by that evidence. The court did not err in allowing the witness to answer the question as it remained for the jury to determine what weight to give the expert opinion. Hyles v. Cockrill, 169 Ga. App. 132, 136-137 (8) (312 SE2d 124) (1983); Woods v. Andersen, 145 Ga. App. 492, 494 (4) (243 SE2d 748) (1978).

2. Krause contends that the court erred in excluding the testimony of Atlanta police detective Lou Moore, attorney Ralph Merck and Internal Revenue Service (IRS) agent Art McGovern. Detective Moore would have testified that agent McGovern said that in his opinion Connie Krause’s death was related to a federal tax fraud investigation. Merck would have testified that agent McGovern told him that the federal government was concerned that Connie Krause’s death was linked to the investigation. Agent McGovern would have testified only as to his name, address and occupation; he would have refused to answer any questions regarding the alleged investigation because such testimony had not been approved by the director of the IRS. The trial court did not abuse its discretion in excluding the testimony of agent McGovern regarding his name, address and occupation as such evidence was not relevant to any issue in the case. Holden v. State, 202 Ga. App. 558, 562 (3) (414 SE2d 910) (1992). The proffered testimony of Merck and detective Moore was inadmissible hearsay. OCGA § 24-3-1 (a). Accordingly, we find no error.

3. Krause asserts that the court erroneously refused to admit into evidence a memorandum in which detective Moore wrote that IRS agents “stated it was their opinion that Connie Krause died as a result of a conspiracy involving the Southern Company and Georgia Power.” No IRS agents testified at the trial. The portion of the memorandum that Krause sought to introduce is hearsay. OCGA § 24-3-1 (a). “The reduction of the hearsay statement to writing does not alter its character. Ordinarily hearsay testimony is not only inadmissible but wholly without probative value. . . .” (Citations and punctuation omitted.) Clabo v. Tennessee Farmers Mut. Ins. Co., 202 Ga. App. 110, 113 (413 SE2d 476) (1991). The court therefore did not err in excluding the memorandum.

4. Krause complains that the court erroneously excluded from evidence an affidavit of IRS agent McGovern regarding the alleged federal tax fraud investigation. Agent McGovern did not testify at trial. “[E]x parte affidavits should not be allowed in evidence in any trial where the evidence is finally adjudicated because it denies the privilege of cross-examination as allowed by OCGA § 24-9-64.” (Citations and punctuation omitted.) Growth Properties of Fla. v. Wallace, 168 Ga. App. 893, 899 (4) (310 SE2d 715) (1983). The court properly excluded the affidavit.

5. Krause contends that the court erred in refusing to allow him to impeach an expert witness concerning two other lawsuits in which the expert testified. “Oral testimony concerning any such other lawsuits would be incompetent for impeachment purposes unless it contradicted the witness’ testimony at trial and cannot be used merely to expose the witness’ intelligence, memory, accuracy, judgment and veracity. ...” (Citations and punctuation omitted.) Haley v. Oaks Apts., 173 Ga. App. 44, 46-47 (4) (325 SE2d 602) (1984). Krause sought to introduce evidence that the judges in two other lawsuits disagreed with this witness’ testimony in those cases. Such evidence was incompetent for impeachment purposes because it did not contradict the witness’ testimony in the instant case; the expert did not testify that no judge had ever disagreed with his opinion. The trial court therefore did not abuse its discretion in limiting Krause’s cross-examination of the witness. See Carter v. State, 257 Ga. 510 (1) (361 SE2d 175) (1987).

6. Krause contends that the trial court erred in refusing to allow surrebuttal testimony from officer Ruffin Barnes. Krause had introduced testimony from parking lot attendant Teresa Allen that while on duty on November 3,1989, she had not seen Connie Krause’s automobile in the parking lot. In rebuttal, the Vances presented Marcia Warfield who testified that on the morning of November 3 she parked her car in the lot next to Connie Krause’s car. Warfield further testified that when she returned to the lot that evening, Connie Krause’s car was in the same location. Krause sought to introduce surrebuttal testimony by officer Barnes differing with Warfield as to the approximate time that Warfield returned to her car. Because both Barnes and Warfield could merely approximate the time that Warfield returned to her car and because Barnes’ testimony actually corroborated Warfield’s claim that she parked next to Connie Krause’s car, we find that the trial court did not abuse its discretion in refusing to allow the surrebuttal testimony. Rayburn v. State, 194 Ga. App. 676, 677-678 (4) (391 SE2d 780) (1990).

7. Krause contends that the trial court erred in denying his motion for a directed verdict. Krause first argues that the Vances’ counsel, while cross-examining Krause, made an in-court admission that Krause did not kill his wife. The Vances’ attorney explained to the trial judge that he had simply made a sarcastic comment in the midst of a heated cross-examination. The court’s denial of the motion on this ground amounted to a finding that the attorney had indeed merely made a sarcastic comment rather than an in-court admission. Our review of this finding is limited to a reading of the transcript, while the trial court actually witnessed the demeanor of the attorney and witness involved in the contested verbal exchange. Consequently, this court will not substitute its judgment for that of the trial court in resolving such a question of fact. See generally State v. Nichols, 196 Ga. App. 709, 710 (397 SE2d 3) (1990); Guffey v. State, 191 Ga. App. 501 (1) (382 SE2d 202) (1989).

Krause further argues that the Vances waived the issue of whether he committed voluntary manslaughter of his wife because it was omitted from the pretrial order. “Omission of an issue from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated. [Cit.]” Dunkin’ Donuts v. Gebar, Inc., 202 Ga. App. 450, 451 (1) (b) (414 SE2d 683) (1992). Here, omission of voluntary manslaughter from the pretrial order is not controlling. The Vances stated in their complaint that they were proceeding under OCGA § 33-25-13, which requires proof of either murder or voluntary manslaughter. They introduced evidence pertaining to voluntary manslaughter without objection and the issue was actually litigated. There is no indication in the record that Krause was unfairly surprised by the issue of voluntary manslaughter at any stage of the proceedings. The court did not err in denying the motion for directed verdict on this ground.

Krause also asserts that the court should have granted his motion on the ground of insufficient evidence. Krause did not raise this issue in support of his motion made at the close of the Vances’ case. Krause attempted to raise this issue later in the case when he again moved for a directed verdict. The court, however, refused to rule on that motion because it was premature, having been made prior to the close of all the evidence. See OCGA § 9-11-50; Anderson v. Universal C. I. T. Credit Corp., 134 Ga. App. 931 (1) (216 SE2d 719) (1975). Krause failed to move for a directed verdict at the close of all the evidence and the court never made a ruling on the premature motion. The issue of insufficient evidence therefore was never properly raised or ruled upon by the trial court as a basis for the directed verdict motion and cannot be considered for the first time on appeal. Barnwell v. State, 197 Ga. App. 116, 118 (4) (397 SE2d 717) (1990); Fulton County v. Morton, 196 Ga. App. 334 (1) (396 SE2d 65) (1990). Even if the issue was properly reserved for appellate review, Krause’s argument would be without merit. We have thoroughly reviewed the record in this case. We find there was evidence supporting the Vances’ claims. Therefore a directed verdict in favor of Krause would not have been proper. See Dunkin’ Donuts, supra at 451 (1) (c).

8. In his sixth enumeration, Krause complains that the trial court erred in allowing an expert witness to testify as to the time of Connie Krause’s death. Krause relies on the same argument he made in support of his first enumeration of error. Because of our decision in Division 1, Krause’s sixth enumeration of error is without merit.

9. Krause argues that the court erred in allowing a medical examiner to give his opinion as to the time of Connie Krause’s death because he assumed facts not in evidence regarding the environmental temperature in which the body was found. The doctor testified that in reaching his estimate as to the time of death he assumed a normal room temperature of approximately 70 degrees fahrenheit. The doctor then explained how that assumption affected his estimate and how his opinion would change by assuming a cooler environment. To the extent the expert’s opinion was based on insufficient facts, the weight and not the admissibility of the testimony was affected. Buttrum v. State, 249 Ga. at 655 (7); Southern R. Co. v. Montgomery, 192 Ga. App. at 311 (2). The court did not err in allowing the jury to consider the medical examiner’s testimony.

10. Krause asserts that the court erred in denying his motion for a mistrial after a police officer indicated that Krause had offered to take a lie detector test. The court’s offer to give a curative instruction to the jury was declined by Krause. “The mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised. . . . (Emphasis in original.)” (Citations and punctuation omitted.) Carr v. State, 259 Ga. 318, 319 (1) (380 SE2d 700) (1989). Here, not only was no inference as to the result raised, but the witness did not indicate whether Krause actually took the test. The reference to a lie detector test was insignificant and the court did not abuse its discretion in denying the motion for a mistrial. Merrell v. State, 162 Ga. App. 886, 888 (4) (293 SE2d 474) (1982).

11. In his ninth enumeration, Krause contends that the court, after hearing testimony by parking lot attendant Teresa Allen, erred in denying his motions for a mistrial and to strike the testimony of three expert witnesses. Krause made these motions in the middle of the trial, at which point the court stated it was unable to rule on them without reviewing the transcripts of evidence. Krause neither renewed the motions nor asked the court for a ruling later in the trial. Consequently, the court never ruled on the motions. Absent a ruling by the trial court, there is nothing for this court to review. Norwood v. State, 199 Ga. App. 536 (405 SE2d 526) (1991); Westwind Corp. v. Washington Fed. &c. Assn., 195 Ga. App. 411 (1) (393 SE2d 479) (1990).

12. Krause’s assertion that the court erred in charging the jury on voluntary manslaughter presents nothing for review because after the charge and upon inquiry by the court, no such objection was made. Rodriguez v. Davis, 202 Ga. App. 550 (1) (415 SE2d 41) (1992).

13. Krause’s twelfth enumeration of error is a general objection to the trial court’s refusal to give any of his 22 requested jury charges. Krause claims that his requested charges were correct statements of the law and were warranted by the evidence. In his brief, Krause has made no reference to any location in the trial transcript where the evidence supports any of his requested charges. Instead, he has simply referred to all 22 of his requests, the entire charge as given and his exceptions to the charge. Moreover, although Krause has cited general legal principles in support of his enumeration, he has not applied those principles to any particular requested charge. We have examined the court’s instructions to the jury as well as the charges requested by Krause but not given. We find that taken as a whole the charge given was complete and accurate. Williams v. State, 201 Ga. App. 384, 385 (2) (411 SE2d 316) (1991). Furthermore, Krause’s generalized argument in support of this enumeration of error is unsatisfactory for consideration on appeal and the enumeration is therefore deemed abandoned. White v. Olderman Realty &c. Co., 166 Ga. App. 179, 180-181 (3) (303 SE2d 517) (1983); Court of Appeals Rule 15 (c).

14. Krause enumerates as error the court’s failure to give his second, twelfth and thirteenth requests to charge. In his brief, Krause simply repeats the enumerated errors and does not support them with argument, citation of pertinent authority or reference to any evidence in the record supporting the requests to charge. Accordingly, these enumerations are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

15. Krause contends that the court erred in failing to give his fourth, fifth, sixth and seventh requests to charge. Request 4 defines malice, request 5 states that intent to kill is an element of both murder and voluntary manslaughter, request 6 states that motive is not an element of murder and request 7 states that intent and malice are elements of the crime of murder. As these requests were substantially covered in the court’s general charge defining murder and voluntary manslaughter, this enumeration of error is without merit. See Coastal Equities v. Chatham County Bd., 201 Ga. App. 571, 574 (2) (411 SE2d 540) (1991); Mattox v. MARTA, 200 Ga. App. 697, 698-699 (2) (409 SE2d 267) (1991).

16. In his fifteenth enumeration of error, Krause argues that the court erred in failing to charge the jury that before a plaintiff in a civil case can have a verdict in his favor supported solely by circumstantial evidence, such evidence must reasonably establish the theory relied upon and preponderate to that theory rather than to any other reasonable hypothesis. The record, however, does not contain a written request for such a charge. “Where there has been no written request to charge, failure to give the charge is not error.” (Citations and punctuation omitted.) Bartel v. State, 202 Ga. App. 458, 459 (3) (414 SE2d 689) (1992).

Decided February 22, 1993

Reconsideration denied March 5, 1993

Manheim & Jones, Alan C. Manheim, W. David Sims, for appellant.

Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, Kenneth S. Canfield, for appellees.

Krause further argues that the court erred in failing to give his requested charge that if the evidence presents two theories, one of guilt and one consistent with innocence of the crime of murder, then the law compels the jury to accept the theory which is consistent with innocence. “A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” (Citations and punctuation omitted.) Pace v. State, 201 Ga. App. 475, 476 (2) (411 SE2d 361) (1991). Here, the charge requested misstates the burden of proof in a civil case. The court properly charged the jury on circumstantial evidence and the applicable burden of proof. Accordingly, the court did not err in refusing to give this charge.

17. Krause claims that the court erred in failing to charge the jury that “a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Krause further claims that the court erred in failing to charge the jury that “an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” These claims are wholly without merit as the court did in fact give these exact charges to the jury.

18. Krause’s claim that the court erred in refusing to give his seventeenth and twentieth requests to charge regarding in-court statements made by counsel is without merit as those requests were not authorized by the evidence. Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839 (1) (418 SE2d 119) (1992).

19. Krause challenges the constitutionality of OCGA §§ 33-25-13 and 53-4-6. This appeal was originally filed in the Supreme Court, which transferred it to this court. The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious. In the Matter of J. S. S., 175 Ga. App. 361, 364 (1) (333 SE2d 417) (1985).

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

       The IRS, pursuant to 26 CFR Ch. 1 and 31 CFR Pt. 1, declined to allow McGovern to testify.


text:
    A92A2266.
    RICHMOND LEASING COMPANY, INC. v. COOPER, COOPER, MAIORIELLO & STALNAKER.
    (428 SE2d 603)
   Carley, Presiding Judge.

Appellee-defendant provided legal representation for appellant-plaintiff in bankruptcy proceedings. Thereafter, appellant filed the instant suit, alleging that appellee had been negligent and unskillful in that legal representation. Appellee moved to dismiss the complaint, based upon appellant’s failure to have attached thereto an expert’s affidavit as required by OCGA § 9-11-9.1. The trial court granted appellee’s motion and appellant appeals from that order.

1. Appellant urges that compliance with OCGA § 9-11-9.1 was not required because its complaint alleges simple, rather than professional, negligence.

“[T]here are instances in which actions performed by or under the supervision of a professional are nevertheless not professional acts constituting professional malpractice, but, rather, are acts of simple negligence which would not require proof by expert evidence. [Cits.] [Appellant’s] claim, however, does not fall within this category of simple negligence cases.” Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (3) (395 SE2d 809) (1990). The complaint is based upon acts and omissions by appellee, in its capacity as appellant’s legal representative, in a legal proceeding. “Recognizing that ‘ “(professional) malpractice exists only where the act or omission by (a) professional requires the exercise of expert (professional) judgment” ’ ([cit.]), we find that the various acts and omissions averred in the . . . complaint attempting to establish negligence on the part of [appellee] each involves a situation requiring the exercise of [legal] judgment.” Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 50 (3) (424 SE2d 338) (1992).

Appellant’s reliance upon Roebuck v. Smith, 204 Ga. App. 20 (418 SE2d 165) (1992) is misplaced. Roebuck is merely a physical precedent. Moreover, it stands only for the proposition that compliance with OCGA § 9-11-9.1 is not required in a case alleging “clear and palpable” simple negligence. Roebuck is certainly not authority for the proposition that the instant case is such a simple negligence action. It is well-settled that “ ‘([e])ven in cases of “clear and palpable” professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint.’ [Cit.]” (Emphasis supplied.) Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847) (1991). See also Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (1) (383 SE2d 867) (1989); Sparks v. Kroger Co., 200 Ga. App. 135, 137 (3) (407 SE2d 105) (1991); Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988).

Decided February 22, 1993

Reconsideration denied March 5, 1993

Richard S. Heslen, Jr., pro se, for Richmond Leasing Company, Inc.

Fulcher, Hagler, Reed, Hanks & Harper, John I. Harper, for appellee.

2. Appellant urges that its complaint stated a contractual claim which is not subject to the requirements of OCGA § 9-11-9.1.

However, “ ‘OCGA § 9-11-9.1 “applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” ’ [Cit.] Therefore, the trial court did not err by applying the requirements of OCGA § 9-11-9.1 to [appellant’s claim].” (Emphasis supplied.) Jordan v. Lamberth, Bonapfel, Cifelli, Wilson & Stokes, 206 Ga. App. 178 (1b) (424 SE2d 859) (1992). See also Royal v. Harrington, 194 Ga. App. 457, 458 (390 SE2d 668) (1990).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1826.
    RE/MAX SPECIALISTS, INC. v. NATIONAL LIFE INSURANCE COMPANY.
    (428 SE2d 654)
   Johnson, Judge.

In June 1987, Re/Max Specialists, Inc. entered into a commercial lease agreement with National Life Insurance Company for office space. A lease extension and modification agreement was executed in March 1989 and provided for a monthly rental of $5,084, a late fee of five percent, reasonable attorney fees, and double rent if Re/Max should hold over. In December 1989, the lease term expired. However, Re/Max held over and continued to occupy the premises. National continued to demand payment of rent at the rate of $5,084 per month, notwithstanding the double rent provision. Ultimately, Re/ Max defaulted by failing to pay rent. National filed a dispossessory action against Re/Max in state court seeking to recover possession of the premises, unpaid rent, late fees, and attorney fees. Re/Max filed an answer and counterclaim, seeking damages in the amount of $3,000 as a result of National’s alleged failure to keep the premises in repair, as required by the terms of the lease. Prior to trial, Re/Max amended its counterclaim increasing its claim for damages from $3,000 to $14,000, and vacated the premises.

The jury returned a verdict in favor of National, awarding rent in the amount of $13,605.45, late fees in the amount of $1,420 and attorney fees in the amount of $1,527.55. The jury found against Re/Max on its counterclaim. Judgment was entered on the verdict. Re/Max filed a motion for j.n.o.v. on National’s claim and a motion for new trial on its counterclaim. Both motions were denied by the court. Re/ Max appeals.

1. Re/Max contends that the trial court erred in denying its motion to strike from the evidence all references to double rent, arguing that National was barred from introducing evidence of double rent because it failed to amend its pleadings to seek double rent under the agreement. When the plaintiff seeks to introduce evidence on an issue of damages not requested in the complaint, counsel for the opposing party has two options. Counsel may object to the admission of the challenged evidence or move for a continuance making a showing of surprise. In either instance, the decision to sustain an objection or grant a motion for continuance, is within the trial court’s discretion. See Haynes v. State, 180 Ga. App. 202, 203 (3) (349 SE2d 208) (1986); see also Lester v. State, 173 Ga. App. 300, 301 (2) (325 SE2d 912) (1985).

Here, counsel moved to strike the admission of evidence concerning double rent, claiming surprise. The court denied the motion apparently on the ground that no reasonable argument of surprise could be made because the subject lease agreement provided on its face for double rent in the event Re/Max held over. The trial court did not abuse its discretion in denying Re/Max’s motion to strike the challenged evidence.

2. In its second enumeration of error, Re/Max contends that the trial court erred in denying its motions for directed verdict and j.n.o.v. on National’s claim.

At the conclusion of all of the evidence, Re/Max made an unusual motion for a directed verdict asking the court to direct a verdict in favor of National on the claim of damages as alleged in National’s pleadings, but allowing its counterclaim to be submitted to the jury. Pretermitting the issue of whether a party may move for a directed verdict in favor of the opposing party; we find that there was conflict in the evidence regarding the material issue of damages. The trial court did not err in denying Re/Max’s motions for directed verdict and j.n.o.v. See Stone v. Allen, 201 Ga. App. 842, 843 (1) (412 SE2d 605) (1991).

3. Re/Max submitted a written request to charge containing the following language: “a lease provision requiring written notice by tenant to landlord of defects which landlord is bound to repair is waived by the landlord when oral notice of defects is given and landlord acts upon such notice,. . . without insisting upon written notice.” Re/Max contends that the trial court erred in refusing to give this charge. We agree.

There is a provision in the lease agreement between the parties requiring National to make structural repairs necessary for safety and tenantability upon written notification of such defects. At trial, Re/ Max produced evidence indicating that National failed to repair a leaking roof resulting in extensive water damage; that in 1987 Re/Max sent a letter to National requesting the repair of the roof and the necessary repairs were made; that the roof continued to leak until the time that Re/Max vacated the premises in 1990; that at least two dozen phone calls were made to National regarding the problem; and that National had the roof repaired pursuant to the phone calls on several occasions. National emphasized that repairs were conditioned upon written notice, and that Re/Max had only given written notice on one occasion.

At the charge conference, National objected to the particular charge requested by Re/Max on the issue of waiver, arguing that the case cited in support of the principle of law embodied in the charge had been overruled. Re/Max responded that the case had been reversed on other grounds in a later decision. However, counsel did not have the case available for the court’s review. We note the principle embodied in the requested charge was later upheld in Piano & Organ Center v. Southland Bonded Warehouse, 139 Ga. App. 480, 481 (1) (228 SE2d 615) (1976).

“On the trial of all cases it is the duty of the judge to charge the jury the principles of law applicable to all issues raised by the pleadings and the evidence, even without a request for such an instruction.” Claxton v. Claxton, 214 Ga. 715, 719 (2) (107 SE2d 320) (1959). There is no question that it would have been better practice for counsel to have had copies of the case relied upon in support of the requested charge on waiver, as well as the case reversing it on other grounds available for the court’s review. That notwithstanding, we find that the charge as requested was an accurate statement of the law and was adjusted to the evidence in this case.

In determining whether the error was harmless, we examined the record, finding that Re/Max met the necessary requirements for pursuing a claim for damages by recoupment in response to National’s suit for rent. The court’s failure to give the charge at issue was therefore harmful error. We reverse that portion of the judgment entered against Re/Max on its counterclaim, and remand this case to the trial court for a new trial on the counterclaim only.

Judgment affirmed in part and reversed in part. Pope, C. J., and Carley, P. J., concur.

Decided March 5, 1993.

Louis F. McDonald, for appellant.

Coleman & Dempsey, David J. Dempsey, for appellee.


author: Pope, Chief Judge. Beasley, Judge,

text:
    A92A1974.
    TAYLOR v. SCHANDER.
    (428 SE2d 806)
   Pope, Chief Judge.

Plaintiff Candace Ann Taylor and defendant Cynthia M. Schander were previously involved in a romantic relationship. This lawsuit arises out of an injury plaintiff sustained on their first date in February 1989. After spending several hours at a bar, the couple returned to defendant’s house. Plaintiff was sitting on a kitchen bar stool facing defendant, who was also sitting on a stool. According to plaintiff’s account of the incident, the couple commenced kissing. Defendant got up and sat in plaintiff’s lap and the couple resumed kissing. Because of a certain movement defendant made with her arms, the stool toppled and both women fell to the floor. Plaintiff alleges she suffered a broken ankle and was disabled from work as a result of the fall. After the couple broke off their relationship, plaintiff filed a complaint against defendant in September 1990, alleging defendant’s negligence was the proximate cause of her injuries. The trial court granted defendant’s motion for summary judgment and plaintiff appeals.

1. Plaintiff does not assert the fall resulted from the defective condition of the stool or the floor. Plaintiff asserts the fall was caused by defendant’s alleged negligence in sitting on her lap and causing the stool to topple over. Plaintiff admits, however, that she consented to defendant’s sitting in her lap. In our opinion, the risk of falling in this situation should have been obvious. Thus, the undisputed facts of this case establish plaintiff assumed the risk involved in defendant’s act. “One who knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter’s negligence.” City of Columbus v. Griggs, 113 Ga. 597 (1) (38 SE 953) (1901). Even though, as plaintiff argues, questions of negligence and proximate cause are usually issues for jury determination, this is one of those rare cases in which the undisputed facts clearly establish that plaintiff is barred from recovery by her own assumption of the risk.

2. The order granting defendant’s motion for summary judgment does not recite that it is based on a review of the record and the record reflects the depositions of the parties were first opened by the clerk of the trial court for the purpose of transmitting the record to this court after the notice of appeal was filed. Plaintiff argues the record thus shows the depositions were not considered by the trial court in ruling on defendant’s motion and that the failure to consider the depositions constituted a denial of her right to due process. Even if the record clearly shows that a deposition was not considered below, it may be considered on appellate review of a ruling on a motion for summary judgment to determine whether the facts of the case create an issue of material fact for determination below. See Miller Grading Contractors v. Ga. Fed. &c. Assn., 247 Ga. 730 (3) (279 SE2d 442) (1981). We take this opportunity to overrule Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222) (1988), and all cases which follow its holding, because it is inconsistent with the holding in Miller Grading in that it reversed the grant of summary judgment and remanded the case to the trial court for consideration of all evidence without first making a determination of whether such a remand was necessary on the ground of harmless error. Having reviewed the depositions of the parties, we conclude any error in the trial court’s failure to consider this evidence was harmless because no issue of material fact is created by the deposition testimony. See Malloy v. Cauley, 169 Ga. App. 623, 625 (2) (314 SE2d 464) (1984).

Judgment affirmed. McMurray, P. J., Birdsong, P. J., Carley, P. J., and Andrews, J., concur. Beasley, Cooper, Johnson and Blackburn, JJ., concur specially.

Beasley, Judge,

concurring specially.

Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222) (1988), should not be overruled because it is correct. There the trial court expressly confirmed that it had not considered the deposition, even though it was on file at the time the court ruled on the motion for summary judgment. That is error because OCGA § 9-11-56 (c) requires a consideration of the entire record. The question before the trial court is whether there is anything in the record which shows that a genuine issue of material fact remains unresolved. Obviously, one must be cognizant at least in general of the whole of the record in order to ascertain this, focusing on those issues which the parties contend remain.

It is true that a review of the ruling on summary judgment is de novo, with the appellate court examining the record anew because only the legal question as to whether the law demands judgment or not is at issue both before the trial court and the appellate court. The appellate court must conduct the same inquiry which the trial court was bound to undertake. If the trial court did not fully perform its statutory obligation by failing to follow the prescribed procedure of considering the entire record, it is error which can be corrected by directing it to do so. On the other hand, Miller Grading Contractors v. Ga. Fed. &c. Assn., 247 Ga. 730 (3) (279 SE2d 442) (1981), took the approach that if the trial court’s error is harmless in that review of the entire record, which is the mandated procedure, would lead to the same result reached erroneously, then requiring the erring court to reconsider the motion wastes judicial resources and delays finality.

In Maddox it was not shown that a review of the ignored deposition would lead to the same result. In other words, harmless error was not shown, so it was not appropriate to apply the rule used in Miller Grading, that “[a] judgment correct for any reason will be affirmed. [Cits.]” McLean v. McLean, 242 Ga. 71, 72 (1) (247 SE2d 867) (1978). The Supreme Court in Miller assumed error but found it “manifestly harmless” after reviewing the depositions which apparently had not been considered by the trial court. In the case cited by the majority, Malloy v. Cauley, 169 Ga. App. 623, 625 (2) (314 SE2d 464) (1984), this court also applied the harmless error rule. Likewise in Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535) (1990), wherein this court considered not only a deposition filed before but unsealed after the trial court’s order on summary judgment, but also a deposition not filed or unsealed until after the summary judgment ruling.

This approach has a problem, of course. If the appellate court undertakes review of documents which the trial court erroneously did not consider, it may conclude that those documents do raise a genuine issue of material fact. Then the harmless error rule would not apply and the trial court would be found in error on the substantive issue as well as the procedural issue. Not only does the trial court in such a case fail to follow the dictates of OCGA § 9-11-56 (c), but had it done so, it would have ruled otherwise.

The problem is that the appellate court diminishes the importance of the trial court’s responsibility to make the first ruling. Whenever the appellate court considers record items which the trial court did not consider, either because they were timely filed but ignored or because they were not unsealed or even filed until after the court ruled, cost and delay are increased because an appeal on the merits is necessitated. Condoning the trial court’s failure to properly consider summary judgment, the purpose of which is to conclude a nonmeritorious suit swiftly, is counterproductive because it elongates the proceeding by requiring the parties to seek the original proper consideration of summary adjudication in the appellate court.

The instant case differs from Maddox in that here, we have only that the timely-filed depositions were not unsealed until after the ruling, and it is on this basis that the majority presumes the trial court did not consider them. But General Motors v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979), ruled that “[i]f a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered.”

The order of the trial court here recites that “with briefs filed and arguments of counsel having been heard,” summary judgment is granted. Although the court does not expressly state that it has “reviewed the record,” there is nothing which shows that the court did not fulfill its duty, as there was in Maddox. Moreover, both trial court briefs in the instant case make specific descriptive references to the depositions. Taking all of plaintiff-appellant’s assertions as true, she still could not avoid summary judgment. Similarly, as stated in General Motors, supra at 191-192, “the trial court need not consider sealed depositions on file in the case when the parties stipulate the facts upon which the trial court based its decision.” Often the court need not read the entirety of the record because the parties point out the areas of dispute, so in effect it is considered to the extent that it need be to decide the issue. Thus, based on General Motors, we need not assume that the trial court’s failure to open the sealed depositions was error, as did the Court in Miller Grading.

In Maddox, however, the court expressly did not consider the substance of the deposition, although its order originally had said it did. Maddox had nothing to do with whether the seal on the deposition was broken or not, or the effect of that fact on the appellate disposition of the summary judgment order.

I conclude that the trial court did not legally err in this case, either procedurally or substantively, although it created, as have so many before it, another instance of “the awkward problems caused by failure to incorporate into the open record all documents upon which a ruling on summary judgment depends.” Bishop, supra. (Emphasis supplied.) The ideal, which may be achieved simply, is for the court to confirm expressly in the order that all the items in the record, such as those listed in OCGA § 9-11-56 (c), have been considered; for counsel to assure that all items intended to be considered are timely filed; and for the court to unseal all sealed documents. By so doing, the procedural nightmares are avoided, the finality of the judgment is enhanced, and the appeal, if there is one, is confined to the merits. In addition, the constitutional mandate for speedy, efficient, and inexpensive resolution of disputes is more nearly honored.

I am authorized to state that Judge Cooper, Judge Johnson, and Judge Blackburn join in this special concurrence.

Decided March 5, 1993.

Ronald L. Hilley, for appellant.

MacDougald & Hendon, Norman R. Miller, for appellee.


text:
    A92A2237.
    AAA PEST CONTROL, INC. et al. v. MURRAY.
    (428 SE2d 657)
   Carley, Presiding Judge.

Appellee-plaintiff’s deceased husband and appellant-defendant Patrick Sizemore each owned one-half of the shares of appellant-defendant close corporation AAA Pest Control, Inc. (AAA). After the death of her husband, appellee brought the instant action to recover one-half of the value of AAA as provided in a buy-out agreement. Pursuant to OCGA § 9-7-1 et seq., the case was heard by an auditor. The auditor submitted his report, to which Sizemore and AAA filed timely exceptions of law under OCGA § 9-7-15. Pursuant to OCGA § 9-7-16, the trial court overruled the exceptions and, pursuant to OCGA § 9-7-21 (b), entered judgment in accordance with the auditor’s report. Sizemore and AAA appeal from this judgment of the trial court.

1. Appellee’s late husband and Sizemore had agreed that, in the event of the “death ... of either . . ., the ownership of the corporate vehicle driven by [the deceased shall] be transferred to . . . his estate for said value of one dollar ($1.00).” Pursuant to this clear and unambiguous agreement, the auditor correctly found that the value to AAA of the corporate vehicle that was being used by appellee’s husband at the time of his death was $1. Since the automobile had an agreed value of only $1, the transfer of the automobile to appellee reduced the remaining value of AAA by only that amount.

2. A joint and several judgment had been rendered against AAA and Sizemore in a tort action. With regard to this joint and several judgment, the auditor found that “Sizemore was as much liable . . . as AAA. Had the judgment been rendered solely against AAA and not . . . Sizemore, then [appellee], through her deceased husband’s stock ownership of AAA, should bear a portion of the judgment. . . . [T]he judgment has no bearing on the value of AAA. . . .”

This constitutes an erroneous conclusion of law. “It will not be disputed that all who join in the commission of a wrong resulting in injury are jointly and severally liable for the entire damage sustained, without regard to the degree of culpability of each. [Cits.]” (Emphasis supplied.) Eidson v. Maddox, 195 Ga. 641, 644 (24 SE2d 895) (1943). Accordingly, the full amount of the joint and several judgment was a liability for both AAA and Sizemore. As between AAA and Sizemore, either would have a right of contribution against the other if they were joint tortfeasors. OCGA § 51-12-32. “[T]he right of contribution from a joint tortfeasor . . . is a substantive right. [Cit.]” Hyde v. Klar, 168 Ga. App. 64, 65 (308 SE2d 190) (1983). Thus, although Sizemore was “as much liable” as AAA on the joint and several judgment, AAA was “as much liable” as Sizemore thereon. It follows that the joint and several judgment would have bearing on the value of AAA. Thus, that joint and several judgment would constitute a liability of AAA in the full amount thereof, less AAA’s right to contribution, if any, against Sizemore.

Decided March 5, 1993.

Richard E. Miley, for appellants.

Fletcher, Harley & Fletcher, Leonard O. Fletcher, Jr., for appellee.

Appellee urges that it would be unfair for her to bear a portion of the joint and several judgment. However, it is AAA, not appellee, that is required to bear a portion of the judgment. As her late husband’s widow, appellee is entitled to one-half of the value of AAA under the buy-out agreement. If the joint and several judgment represents a liability of AAA, it affects the underlying value of AAA and appellee’s recovery under the buy-out agreement. It would be unfair for appellee to recover one-half of the value of AAA which was not otherwise diminished by the amount of a legal liability of AAA. The trial court erred in overruling the meritorious exception to the auditor’s erroneous legal conclusion regarding the joint and several judgment.

3. The auditor found that there was no bad faith and that a bona fide controversy existed. Nevertheless, the auditor found that appellee was entitled to an award of attorney’s fees pursuant to OCGA § 13-6-11. The trial court’s failure to sustain the exception to this legal conclusion of the auditor is enumerated as error.

In the absence of a finding of bad faith, the existence of a “genuine controversy would preclude an award of attorney’s fees based on the grounds of stubborn litigiousness or causing unnecessary trouble and expense. [Cits.]” M. K. Developers v. McCall, 202 Ga. App. 224, 226 (3) (414 SE2d 260) (1991). Compare Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394, 396 (2) (224 SE2d 76) (1976) (wherein there was “nothing in the record to show the [appellee’s] claim against the [appellant] was ever disputed.” (Emphasis supplied.) It follows that the trial court erred in overruling the meritorious exception to the auditor’s erroneous award of attorney’s fees.

Judgment affirmed in part and reversed in part. Pope, C. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1828.
    BAILEY v. HORACE MANN INSURANCE COMPANY.
    (428 SE2d 604)
   McMurray, Presiding Judge.

Don E. Bailey filed, pro se, an action against Horace Mann Insurance Company (“Horace Mann”), alleging Horace Mann fraudulently coerced him into settling a claim for uninsured motorist benefits under an automobile liability insurance policy issued by Horace Mann. Horace Mann denied the material allegations of the complaint and filed a motion for summary judgment and the affidavit of Laura Barrett, a Horace Mann claims adjuster. Barrett identified a release executed by Bailey and deposed that the release “should be a bar to the pending action.” The release provides that, in consideration of $2,000, Bailey settled “any and all claims [Bailey has] or might have under any contract or policy of insurance written by Horace Mann Insurance Company, which does or might apply to provide [Bailey] benefits accruing ... as a consequence of [an automobile] accident [which occurred on September 20, 1986].” In opposition, Bailey filed a response stating, in pertinent part, that he was unduly coerced into settling the claim because of “physical and mental duress brought on by Defendant Horace Mann Insurance [sic] refusal to pay benefits, wearyiness [sic] of filing lawsuits against [Horace Mann], and compelling compromising offers to settle for $500, pressure to pay medical bills by doctors, and [Horace Mann] telling me [the] contract was being drawn up for settlement under P.I.P coverage. . . .”

The trial court granted Horace Mann’s motion for summary judgment. This appeal followed. Held:

“The controlling issue on appeal is whether the evidence creates an issue whereby the jury could find the release to be void because, as [Bailey] alleges, it was entered into under duress. [In this vein, we recognize that d]uress is defined as ‘imprisonment, threats, or other acts, by which the free will of a party is restrained. . . .’ OCGA § 13-5-6.” Miller, Stevenson & Steinichen, Inc. v. Fayette County, 190 Ga. App. 777 (1) (380 SE2d 73). In the case sub judice, Bailey’s allegations of coercion are insufficient, as a matter of law, to raise a jury question as to whether the release is voidable. See Miller, Stevenson & Steinichen, Inc. v. Fayette County, 190 Ga. App. 777 (1), supra, and cases cited therein. The executed release constitutes an accord and satisfaction of Bailey’s claim against Horace Mann. McCollum v. Doe, 190 Ga. App. 444 (1), 445 (379 SE2d 233). Consequently, the trial court did not err in granting Horace Mann’s motion for summary judgment.

Decided February 22, 1993

Reconsideration denied March 8, 1993

Don E. Bailey, pro se.

Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, Arnold Wright, Jr., for appellee.

Judgment affirmed. Cooper and Blackburn, JJ., concur.