author: ELDRIDGE, Judge.

text:
    A97A2223.
    HILLIARD et al. v. J. C. BRADFORD & COMPANY.
    (494 SE2d 38)
   ELDRIDGE, Judge.

This is an appeal from an order of the Chatham County Superior Court confirming an arbitration award in favor of the plaintiff, J. C. Bradford & Company (“Bradford”).

Bradford is a Tennessee limited liability company authorized to do business in the State of Georgia as a licensed securities broker-dealer. The defendants, William L. and Diane L. Hilliard, held a margin account with Hanifen, Imhoff, Inc., which they transferred to Bradford. On June 22, 1994, at Bradford’s Savannah, Georgia office, the Hilliards executed a securities margin agreement regarding their brokerage account with Bradford in order to facilitate such transfer. In such margin agreement, the Hilliards agreed that all controversies that arose between the Hilliards and Bradford regarding the Hil-liards’ brokerage account would be resolved by mandatory binding arbitration. The principal investment of the Hilliards in their margin account with Bradford was 110,500 shares of common stock of Beta Wells Service, Inc. (“Beta”), which at the time they opened their account and executed the margin agreement was listed on the American Stock Exchange.

On October 21, 1994, the American Stock Exchange de-listed Beta from trading on the exchange. As a result of this announcement, the per share market price began to drop significantly, and Bradford issued an initial margin call of $454,337 to the Hilliards. The Hil-liards failed to meet this margin call, as well as the margin calls subsequently issued by Bradford. Therefore, on October 25, 1994, pursuant to the terms of the margin agreement and following written notice, Bradford began to liquidate the securities held in the Hil-liards’ account. Bradford was able to liquidate all of the non-Beta securities in the Hilliards’ account. Beta was re-listed on the American Stock Exchange in November 1994. Between November 1994 and September 11, 1995, Bradford was able to sell all but 43,000 shares of Beta at various prices ranging from $3,625 per share to as little as $2 per share.

On February 1, 1995, Bradford filed a statement of claim with the Arbitration Department of the National Association of Securities Dealers, Inc. (“NASD”). On April 12, 1995, the Hilliards filed their statement of answer and counterclaim to Bradford’s statement of claim. Both Bradford and the Hilliards signed a uniform submission agreement on April 12 and May 11, 1995, respectively, under which they agreed to arbitrate their dispute in accordance with the rules and procedure of the NASD. Bradford filed its reply to the counterclaim on July 18, 1995.

The arbitrators heard evidence from the parties on December 14, 1995, and April 15 and 16, 1996. On May 9, 1996, the NASD issued its decision in this case, finding the Hilliards liable to Bradford for the sum of $260,049.17 plus interest and $12,750 in attorney fees. NASD denied the Hilliards’ counterclaim and dismissed it in its entirety.

On May 23, 1996, Bradford filed a motion to confirm the arbitration award in the superior court. In response to this motion, the Hil-liards filed a petition for removal of this case to the United States District Court. On the same day, the Hilliards also filed their opposition to the motion to confirm in the United States District Court, as well as a cross-motion to vacate and/or modify the award. However, on motion of Bradford, this case was remanded to the Superior Court of Chatham County on July 26, 1996.

On October 7, 1996, the trial court granted Bradford’s motion to confirm the arbitration award after finding that the Hilliards had failed to file a timely answer. However, the Hilliards moved the trial court to vacate such order, claiming that they had filed a timely answer in the district court after the removal of the case. On November 13, 1996, the trial court entered a consent order vacating its order of October 7, 1996.

On March 7, 1997, the trial court confirmed the arbitration award after both sides were given an opportunity for a hearing. It is from this order that the Hilliards have appealed.

In this case, where there has been no agreement by the parties to be bound by state arbitration law, and since the transaction involved commerce within the meaning of the Federal Arbitration Statute, the state law and policy with respect thereto must yield to the preemption of the paramount federal law. North Augusta Assoc. v. 1815 Exchange, 220 Ga. App. 790 (469 SE2d 759) (1996); see West Point-Pepperell v. Multi-Line Indus., 231 Ga. 329, 331 (201 SE2d 452) (1973); American Airlines v. Louisville &c. Air Bd., 269 F2d 811 (6th Cir. 1959).

The trial court is required by law to accept the arbitrator’s findings of fact and may vacate the award only: (1) “[w]here the award was procured by corruption, fraud, or undue means”; (2) “[w]here there was evident partiality or corruption in the arbitrators”; (3) “[w]here the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced”; or (4) “[w]here the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 USCA § 10 (a).

1. In their first enumeration of error, the Hilliards allege that the trial court erred by excluding and/or failing to rule on the admissibility of relevant and material evidence at the hearing on Bradford’s motion to confirm the arbitration award and the Hilliards’ motion to vacate the arbitration award.

(a) First, the Hilliards contend that the trial court erred by failing to admit various tapes of the arbitration proceedings into evidence. The Hilliards allege that they requested copies of the arbitration hearing tapes from NASD; that when they received the first set that it contained numerous inaudible sections and a 45-minute gap on tape 3B; that the second set requested contained the same problems; and that a final set contained the same problems, along with an additional 15 seconds missing from tape 3B. The Hilliards attempted to introduce these three sets of tapes that they claim they received from NASD into evidence at the confirmation hearing to show that the arbitration hearing tapes had been tampered with and substantial portions of the hearing were missing from the tapes.

For sound recordings to be admissible into evidence in Georgia, a proper foundation must first be laid. It must be shown that the mechanical transcription device was capable of taking testimony; that the operator of the device was competent to operate the device; that changes, additions, or deletions have not been made; and that the testimony was elicited freely and voluntarily made, without any kind of duress. Further, the authenticity and correctness of the recordings must be established; the manner of preservation of the record must be shown; and the speakers must be identified. Central of Ga. R. Co. v. Collins, 232 Ga. 790 (209 SE2d 1) (1974); Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (88 SE2d 167) (1955). “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to admissibility will be upheld on appeal.” (Citations and punctuation omitted.) Hall v. State, 176 Ga. App. 428, 429 (1) (336 SE2d 291) (1985). The Hilliards failed to lay the evidentiary foundation for the admission of the tapes. Therefore, the trial court’s ruling was not clearly erroneous.

Further, in order to resolve any dispute the Hilliards had concerning whether the tapes had been tampered with, the trial judge requested and reviewed a certified set of tapes directly from the NASD. The certified tapes were properly admitted into evidence. Therefore, even if the trial court erred in failing to admit the copies of the tapes sent directly to the Hilliards, such error is harmless since the trial court had the entire arbitration hearing before it in the form of the certified tapes sent directly from NASD. See Travelers Ins. Co. v. Trans State, 172 Ga. App. 763 (324 SE2d 585) (1984) (holding that any error by the trial judge in failing to admit a transcript was harmless as the transcript was cumulative of testimony already presented).

(b) The Hilliards further argue that the trial court erred in failing to admit the affidavit of Dr. Nelson at the confirmation hearing as evidence that the arbitrators failed to continue the portion of the arbitration hearing set for April 15, 1996, upon a showing of good cause. The trial court reserved ruling on the admission of Dr. Nelson’s affidavit and ultimately confirmed the award without indicating a ruling on the affidavit’s admissibility.

Failure of the trial court to make a final ruling on a motion precludes our review of the motion on appeal. Metro Atlanta Trucking Co. v. Kyzer, 217 Ga. App. 630 (458 SE2d 416) (1995); Staggs v. Wang, 185 Ga. App. 310, 312 (363 SE2d 808) (1987); see Paulsen Street Investors v. EBCO Gen. Agencies, 224 Ga. App. 507, 508 (481 SE2d 246) (1997). It is the duty of trial counsel to invoke a final ruling on his motions to preserve the record for appellate review. Metro Atlanta Trucking Co. v. Kyzer, supra at 630; Staggs v. Wang, supra at 312. After the trial court entered its judgment confirming the arbitration award, the burden was then on the Hilliards to file some type of motion or action to invoke the trial court’s ruling on the admissibility of Dr. Nelson’s affidavit, such as a motion to set aside the judgment. However, the Hilliards failed to do so. Under these circumstances, there is nothing preserved for appellate review.

(c) The Hilliards next assert that the trial court erred by failing to admit into evidence Mr. Hilliard’s testimony outlining remarks made over the telephone to him by a NASD officer located in New York. The Hilliards sought to introduce such testimony as proof that the NASD office in New York felt it was appropriate for a continuance of the April 15, 1996 arbitration hearing to be granted, and therefore, the arbitrators were guilty of misconduct in refusing to postpone the hearing. We disagree, because such testimony was neither relevant nor material.

In support of their claims, the Hilliards cite A Child’s World v. Lane, 171 Ga. App. 438, 440 (319 SE2d 898) (1984). The facts of A Child’s World are distinguishable from this case. In A Child’s World, this Court held that “[s]ince each question sought to determine the factual existence of a communication between individuals and neither sought to elicit the contents of the communication as proof of the facts asserted therein, no hearsay was sought to be elicited thereby.” (Citations and punctuation omitted.) Id. at 439. In contrast, the Hilliards attempted to introduce testimony of such conversation into evidence not to establish that a discussion took place, but rather to establish that the Hilliards had been told by the New York office of NASD that they should receive a continuance and that the arbitrators’ denial of a continuance was unfair and prejudicial. See OCGA § 24-3-2.

It is a well-established rule in Georgia that hearsay evidence is not admissible to prove the truth of the matter asserted, unless the offered evidence falls under one of the recognized exceptions to the general rule excluding hearsay. OCGA § 24-3-1 et seq. The Hilliards made no showing that they had attempted to procure the NASD officer’s attendance at the hearing to confirm the arbitration award or that the testimony fell within one of the exceptions.

Further, the communication that the Hilliards sought to introduce into evidence was not between Mr. Hilliard and one of the arbitrators, who had the authority to continue the arbitration hearing, but was with Mr. Jones, who was an administrator in the New York office and who, in addition to not having the authority to continue the hearing, was not privy to the case history. Therefore, any opinion that an administrator in the New York office may have had as to whether the arbitrators in Atlanta should continue the arbitration hearing would not be relevant and material to determine whether or not the arbitrators were guilty of misconduct in refusing to postpone the hearing.

2. The Hilliards further contend that the trial court erred by failing to vacate the arbitration award due to the alleged partiality of the arbitrators. Specifically, the Hilliards contend that (1) the arbitrators yelled and interrupted the Hilliards during the course of the arbitration; and (2) the arbitrators placed an impossible burden of proof on the Hilliards as to the market value of the Beta stock.

The party claiming partiality on the part of the arbitrators has the burden of proof in the confirmation proceedings. Saxis Steamship Co. v. Multifacs Intl. Traders, 375 F2d 577 (2nd Cir. 1967). Further, “[ajrbitrators are not obliged to apply strict rules of law in the matter at hand, when they act within the scope of their authority, unless the parties require adherence to such rules. In fact, it is stated that they may disregard the traditional rules of law. Accordingly, as a general rule, arbitrators are free to apply broad principles of justice and good conscience and decide according to their concept or notion of justice. They are still obliged, however, to be guided by the basic agreement of the parties. 6 CJS, [Arbitration,] § 70.” (Punctuation omitted.) Bartlett v. Dimension Designs, 195 Ga. App. 845, 848 (395 SE2d 64) (1990), overruled on other grounds, Pace Constr. Corp. v. Northpark Assn., 215 Ga. App. 438, 439 (450 SE2d 828) (1994). “In French v. Merrill Lynch &c., 784 F2d 902 (3) & (4) (9th Cir. [1986]), the court concluded that an arbitrator’s decision must be upheld unless it is completely irrational or it constitutes a manifest disregard of the law.” Bartlett, supra at 848. Further, it is well established that in reviewing an arbitration award, deference given to an arbitrator’s decision accompanies not only a review of the final order itself, but also is given to the arbitrator’s decision to control the order, procedure, and presentation of evidence. First Preservation Capital v. Smith Barney, Harris Upham & Co., 939 FSupp. 1559 (S.D. Fla. 1996) .

It is the law in Georgia that a trial court’s ruling confirming an arbitration award should not be disturbed unless it is clearly erroneous and not supported by any evidence in the record. Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232 (335 SE2d 708) (1985); see First Options of Chicago v. Kaplan, 514 U. S. 938 (115 SC 1920, 131 LE2d 985) (1995) (holding that the standard of review of district court decisions requires accepting findings of fact not clearly erroneous, but deciding questions of law de novo). In this case, the trial court reviewed the Hilliards’ claims of partiality and determined that the claims were unfounded and did not preclude confirmation of the award. After reviewing the record, the trial court’s ruling must be affirmed, since it was not clearly erroneous and is supported by ample evidence.

3. The Hilliards. also contend that the trial court erred by failing to vacate the arbitration award due to the failure of the arbitrators to grant a continuance upon sufficient cause shown. We disagree.

It is well established in Georgia that “[t]he grant or denial of a request for continuance lies within the discretion of the trial court, see OCGA § 9-10-167 (a), and will not be disturbed on appeal absent an abuse of discretion.” Purvis v. Ballantine, 226 Ga. App. 246, 247 (1) (a) (487 SE2d 14) (1997); Americani v. Sidky, 199 Ga. App. 823 (406 SE2d 259) (1991). While there is no Georgia authority directly addressing the continuance of an arbitration hearing such as this one, OCGA § 9-9-70 governs the postponement of arbitration proceedings in medical malpractice actions in Georgia and states that an arbitration panel may postpone the hearing of a case when one party is not ready. Arbitrators in medical malpractice cases are not required to postpone an arbitration proceeding under any circumstances, but rather the decision is left to the arbitrator’s discretion as long as such decision is “consistent with the ends of justice, considering all the circumstances of the case.” OCGA § 9-9-70.

Federal courts uniformly have held that whether to continue a hearing is in the discretion of the arbitrator and have concluded that the issue “comes down to the question whether there was any reasonable basis for the arbitrators to refuse to postpone the hearing.” (Citations and punctuation omitted.) Marshall & Co. v. Duke, 941 FSupp. 1207, 1211 (N.D. Ga. 1995), aff’d, 114 F3d 188 (11th Cir. 1997) ; DVC-JPW Investors v. Gershman, 5 F3d 1172 (8th Cir. 1993); Schmidt v. Finberg, 942 F2d 1571 (11th Cir. 1991).

Furthermore, in this case, the parties signed a Uniform Submission Agreement stating that the arbitration hearing would be governed pursuant to the NASD’s Code of Arbitration Procedure. Section 30 of the NASD Code of Arbitration Procedure states that the arbitrators may, in their discretion, adjourn any hearing.

The record shows that the Hilliards requested a continuance of the December 14, 1995 arbitration hearing date because they were not ready to proceed with the presentation of the case. After the close of Bradford’s case, the arbitration hearing was rescheduled for April 15, 1996, some four months later. The Hilliards contend that on the evening of April 14, 1996, William Hilliard suffered an acute attack of polycythemia and was treated at the Chandler Hospital Emergency Room from 9:40 p.m. until 1:00 a.m. the morning of the hearing. Mr. Hilliard alleges that he received both Demerol and Phener-gan intravenously and was told to see his doctor the following day.

However, on the morning of April 15,1996, Mr. Hilliard was able to drive to Atlanta, while Mrs. Hilliard sat in the back seat of the car, and continued to prepare for the hearing. As they drove toward Atlanta, Mr. Hilliard stopped at various intervals and contacted both the Atlanta and New York offices of the NASD, attempting to obtain a continuance due to his illness. Mr. Hilliard’s request for a continuance was ultimately denied. He was, however, given a deferral of the hearing until 1:00 p.m. on that day. Upon arrival, Mr. Hilliard stated his medical condition on the record. He presented no affidavit from a doctor that he was unable, because of his illness, to go forward with the arbitration hearing and did not request a continuance of the hearing once he arrived. Mrs. Hilliard was present during the entire hearing. Furthermore, polycythemia is a chronic condition that is aggravated by stress; there was no showing by the Hilliards that Mr. Hilliard’s condition would improve at a future time. Additionally, the record fails to reveal that Mr. Hilliard had difficulty proceeding due to his chronic condition.

Under the facts of this case, there was a reasonable basis for the arbitrators’ refusal to postpone the hearing a second time, and therefore, there was no abuse of discretion.

4. The Hilliards contend that the trial court erred by failing to vacate the arbitration award because the arbitrators’ award of attorney fees exceeded their authority. We disagree.

“In light of the federal policy favoring arbitration at work here, the Court’s task is to resolve all doubt in favor of the arbitrator’s authority to award a particular remedy. This approach is fully consistent with the presumption of correctness afforded arbitration awards and the summary nature of court confirmation of such awards. In fact, the [9 USCA] § 10 (a) (4) prohibition against arbitrators’ exceeding their powers is to be accorded the narrowest of readings.” (Citations and punctuation omitted.) Marshall & Co. v. Duke, supra at 1213; Blue Tee Corp. v. Koehring Co., 999 F2d 633, 636 (2nd Cir. 1993); Willoughby Roofing &c. Co. v. Kajima Intl., 776 F2d 269, 270 (11th Cir. 1985).

Prior to the arbitration, the parties had agreed to submit all controversies between them to binding arbitration. The parties submitted their case to the NASD for arbitration and consented to be governed by the rules and by-laws of the NASD. Section 43 (c) of the NASD Code of Arbitration Procedure states “In addition to forum fees, the arbitrator(s) may determine in the award the amount of costs incurred pursuant to Sections 30, 32, 33, and 37 and, unless applicable law directs otherwise, other costs and expenses of the parties and arbitrator(s) which are within the scope of the agreement of the parties.” The award of attorney fees has been upheld under § 43 (c) by the courts. Mastrobuono v. Shearson Lehman Hutton, 514 U. S. 52 (115 SC 1212, 131 LE2d 76) (1995) (holding award of punitive damages on ground that § 43 (c) of NASD rules authorized such an award); Marshall & Co. v. Duke, supra (finding that arbitrators under authority of the NASD rules could award attorney fees in exceptional cases).

Further, both the plaintiff and the defendants affirmatively sought an award of attorney fees from the panel in their pleadings and before the panel at the arbitration hearing. “The parties[’] mutual agreement to have any and all fee issues decided by the panel is evidenced by their joint submission of the issues to the panel. Having agreed to have the fee issue decided by the panel, the parties will not now be heard to object that the panel lacked the power to decide the issues submitted.” (Footnote and emphasis omitted.) Marshall & Co. v. Duke, supra at 1215.

Accordingly, for all of the foregoing reasons, the trial court did not err in finding that the award of attorney fees did not exceed the arbitration panel’s authority.

5. In their final enumeration of error, the Hilliards contend that the trial court erred by failing to vacate the arbitration award for other misbehavior on the part of the arbitrators which prejudiced their rights. Specifically, the Hilliards contend that the trial court erred by failing to dismiss the arbitration award on the ground that all copies of the tapes of the hearing provided by the NASD, including the certified copy sent directly to the court and filed of record, had numerous inaudible sections and portions of the second hearing were missing. In this case, the Hilliards failed to present any credible admissible evidence at the confirmation hearing showing that such tapes were incomplete. Further, the Hilliards have not made any showing of how their rights were prejudiced as a result of the allegedly incomplete tapes. Moreover, after a review of the certified copies of the tapes, the trial court confirmed the award. Therefore, the Hil-liards’ assertions based on this ground must be rejected.

Decided October 30, 1997

Reconsideration denied November 13, 1997

Ronald C. Berry, for appellants.

Brennan & Wasden, Wiley A. Wasden III, James C. Joedecke, Jr., for appellee.

Judgment affirmed.

Birdsong, P. J'., and Ruffin, J, concur.

       Polycythemia is defined as follows: (1) “an increase above the normal in the number of red cells in the blood”; (2) “a secondary p. resulting from anoxia, e.g., in congenital heart disease, pulmonary emphysema, or prolonged residence at high altitude”; (3) “associated with hypertension but without splenomegaly.” Stedman’s Medical Dictionary (22nd ed.), p. 999.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A2469.
    THE STATE v. FRAZIER.
    (494 SE2d 36)
   Eldridge, Judge.

The state appeals an order from the Superior Court of Barrow County wherein the trial court suppressed the results of William Scott Frazier’s urine test for purposes of a prosecution for possession of cocaine; the trial court found that the implied consent warnings read to Frazier prior to providing the state with a urine sample did not adequately inform Frazier that such consent would include “any purposes other than the stated purpose of prosecution for driving under the influence.” This issue is controlled adversely to the state by our decisions in State v. Gerace, 210 Ga. App. 874 (437 SE2d 862) (1993), and Beasley v. State, 204 Ga. App. 214 (1) (419 SE2d 92) (1992). Accordingly, we affirm the trial court’s ruling.

Frazier was stopped for driving under the influence; he was read the implied consent warnings verbatim from the statute, OCGA § 40-5-67.1 (b). The arresting officer then asked Frazier to take a urine test, and he complied. The urine sample tested positive for cocaine, and Frazier was subsequently charged with DUI and violating the Georgia Controlled Substances Act: possession of cocaine.

OCGA § 40-5-67.1 (b) (2) states in pertinent part: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs!’ (Emphasis supplied.) OCGA § 40-5-67.1 is in derogation of common law and must be strictly construed. Steed v. City of Atlanta, 172 Ga. App. 839, 840 (325 SE2d 165) (1984). Clearly, the purpose for such test is related to a prosecution for operating a motor vehicle under the influence of drugs, a misdemeanor offense; the implied consent warnings did not inform Frazier that an additional purpose would be for the prosecution of possession of drugs, a felony offense that is totally unrelated to a traffic stop for which the implied consent warnings were developed.

The state maintains that Frazier was told that his blood would be tested for alcohol and drugs, which was done; thus, Frazier was not misled and his consent was voluntary. However, the state’s argument ignores the fact that while Frazier was told his blood would be tested for alcohol and drugs, he was also told that the test was being given for the purpose of determining whether he was under the influence for a traffic offense. Any other purpose would exceed the scope of the consent given.

“A consent to search must be the product of an essentially free and unrestrained choice by its maker. Under the totality of the circumstances presented in this case, we agree with [Frazier] that the consent he gave the police was not voluntary. His consent was premised on the incomplete and thus deceptively misleading information he received that the test results would be used only for determining [whether Frazier was under the influence of drugs]. Had [Frazier] been cautioned that the results of the search and seizure of his [urine] would be used to supply evidence against him in an independent criminal prosecution [for possession of drugs], no consent might have been given.” (Punctuation omitted.) Gerace, supra at 875-876 (2); Beasley, supra at 216. Because Frazier was not apprised that he was consenting to provide the state with its sole evidence against him supporting a charge of possession of cocaine, but was instead led to believe that he was consenting only to provide information for determining if he was under the influence, Frazier’s consent cannot be considered to be the product of an “ ‘essentially free and unrestrained choice.’ ” Gerace, supra at 875. The trial court’s ruling was correct.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided October 30, 1997

Reconsideration denied November 13, 1997

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

William D. Healan III, for appellee.

       Nor would such warnings relate to misdemeanor possession of marijuana.

       Our decision in Green v. State, 194 Ga. App. 343 (390 SE2d 285) (1990), upon which the state relies is inapplicable. In Green, a urine sample was obtained pursuant to a requirement for chemical testing as a part of the terms and conditions of the defendant’s probation. The results of the required urinalysis supported an independent criminal charge of possession of cocaine. The issue of the voluntary nature and scope of the “consent” to chemical testing obviously was not an issue.


author: Smith, Judge.

text:
    A97A1071.
    DeVINE v. THE STATE.
    (494 SE2d 87)
   Smith, Judge.

Billie Mack DeVine was charged by a Clarke County grand jury with two alternative counts of theft by taking, OCGA § 16-8-2, and three counts of perjury, OCGA § 16-10-70 (a). He was convicted on one count of theft by taking and one count of perjury. His motion for new trial was denied, and he appeals. Because the State failed to show venue on the theft by taking charge and failed to show the materiality of the underlying testimony on the perjury charge, we reverse.

The facts of this case are complex and in large part irrelevant to the issues presented here, but a brief overview is necessary. In 1992, Rodney Harold Helms died a resident of Fayette County, Georgia. In his will, he established a trust for his only child, Genelle Helms. DeVine, Rodney Helms’s brother-in-law, is a resident of Tampa, Florida. DeVine was appointed executor and trustee by the Fayette County probate court and took possession of the estate and trust funds by order of that court. He placed the funds in two accounts in Tampa. In 1993, Genelle Helms set up a trust for her infant daughter, whose father was Robert Bryant. In 1994, Genelle Helms and Bryant were murdered in Clarke County, her residence.

Genelle Helms’s death set in motion extensive legal activity. DeVine offered her will for probate in Clarke County, and Bryant’s family filed a caveat to the will. Bryant’s family also brought an action seeking guardianship of the child, contending that Bryant and Helms were married at common law. During the course of these various legal proceedings, Bryant’s family raised allegations that DeVine had misappropriated funds from the Rodney Harold Helms Trust. This prosecution followed.

1. DeVine was charged in Counts 1 and 2 of the indictment with theft by taking of more than $500 from the Rodney Helms Trust between November 1992 and January 1994. The jury acquitted DeVine of unlawfully acquiring the funds, as charged in Count 1 of the indictment, but found him guilty of unlawfully appropriating the funds after acquiring them, as charged in Count 2. At the close of the State’s evidence, DeVine moved to dismiss both theft by taking counts of the indictment on the basis that the State had failed to prove venue by showing that he exercised control over the Rodney Helms Trust in Clarke County, Georgia.

The trial court found this question “troublesome” but declined to grant DeVine’s motion to dismiss because the beneficiary of the trust fund resided in Clarke County. The court analogized the situation to a kidnapping in which the abductor carries a victim through several states. The State contended that venue was established by the residence of Genelle Helms and her child in Clarke County, or by the general “connection — the nexus” with Clarke County. The State also contended that DeVine established venue in Clarke County by seeking to be appointed administrator of Genelle Helms’s estate, and thus “furthering the fraudulent scheme” by attempting to conceal his theft from some other administrator. But none of these arguments meets the clear statutory requirements for venue in a prosecution for theft by taking.

OCGA § 16-8-11 provides: “In a prosecution under Code Sections 16-8-2 through 16-8-9 and 16-8-13 through 16-8-15, the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” On several occasions, this Court has addressed directly the question of venue under this Code section when the property at issue was funds on deposit rather than cash, a specific check, or other tangible property physically taken by a defendant. In Stowe v. State, 163 Ga. App. 535, 537 (4) (295 SE2d 209) (1982), a building contractor received a landowner’s money in Clarke County in order to build a house in Madison County. He purchased materials for the house from a supplier in Franklin County but failed to pay the supplier in full, although sufficient funds to do so had been provided by the owner. The contractor was prosecuted in Franklin County for theft by taking of the owner’s funds, and the State relied upon the contractor’s partial payment of the supplier in Franklin County to establish venue.

This Court rejected the State’s contention, observing that funds properly spent were not the object of the theft and could not form the basis of venue: “In theft by conversion cases, where the allegedly converted property is money, we see two basic options available to the state regarding venue. First, the state can proceed in the county where the accused received the money. There is sound authority that the accused exercised control over the money there. [Cits.] Second, the state can produce evidence tracing funds disbursed in one county (where the case is being prosecuted) back to the account or other source in the origin county, showing further that the funds were not disbursed in accordance with the contract provisions governing the use of the funds.” Id. Because the State did not show that any funds were disbursed improperly in the county of indictment, venue was not proved. Id. at 538.

Compare Queen v. State, 210 Ga. App. 588, 589 (1) (436 SE2d 714) (1993), in which the defendant directed that the victims pay a sum of money by check to defendant’s designated agent, who physically received the money in the relevant county. This receipt of the funds by an agent of the defendant designated for that purpose was sufficient to establish venue. See also Collins v. State, 170 Ga. App. 753, 754 (2) (318 SE2d 492) (1984) (city officials’ conversion of city funds by means of checks drawn on and negotiated at banks in county sufficient to establish venue).

In this case, it is undisputed that Rodney Helms’s will was probated in Fayette County, Georgia and that the Rodney Helms Trust funds were transferred directly from that county to bank accounts in Tampa, Florida. The first method of showing venue is thus foreclosed by the evidence. The State did not show any possession of the trust funds by DeVine in Clarke County, nor did it show any unlawful transfer of funds by DeVine from the trust to a recipient in Clarke County during the period alleged in the indictment, as required by Stowe, supra. The indictment did not accuse DeVine of theft by taking from Genelle Helms’s estate, from her child, or from the trust established by Genelle Helms for the benefit of her child; it was limited in scope to the Rodney Helms Trust, which at all times was located in Florida. The State therefore has failed to show that DeVine “exercised control over the property which was the subject of the theft” in Clarke County. OCGA § 16-8-11.

The alternative theories proposed do not establish venue, either. As the relevant decisions make clear, it is not the residence of the beneficiary or rightful owner of the stolen funds which controls venue; otherwise venue could have been established in the county of residence of the victims in Queen, supra, without considering the point at which the defendants exercised control over the funds. Nor can a “nexus” or general factual connection with a county, as argued by the State, establish venue in contravention of the clear requirements of the relevant statute.

Finally, the State cannot establish venue by means of acts that are not an element of the crime charged, by merely alleging that the acts constituted an “ongoing effort” to conceal an already completed offense. While efforts to conceal a theft by taking may amount to the separate offense of concealing evidence of a crime, OCGA § 16-10-50 (a) (2), such actions do not form part of the crime of theft by taking. In Purvis v. State, 208 Ga. App. 653 (433 SE2d 58) (1993), we held that an individual who colluded with two others to conceal an earlier theft by taking was not guilty of theft by taking as an accomplice, a conspirator, or a party to the crime. “One guilty of violating OCGA § 16-10-50 would be classified as an accomplice after the fact at common law, and such an offender is not considered a party to the crime under OCGA § 16-2-20. At common law and under modern practice, an accessory after the fact is not considered an accomplice to the underlying crime itself, but is guilty of a separate, substantive offense in the nature of an obstruction of justice.” (Citations and punctuation omitted.) Id. at 654. It follows, therefore, that testimony regarding actions allegedly taken in Clarke County to conceal evidence of a crime, a separate offense, cannot be used to establish venue in Clarke County with respect to a theft by taking that occurred outside the county.

DeVine was indicted for theft by taking money from the Rodney Helms Trust, which at all times was located in the State of Florida. DeVine did not exercise any control over the trust funds in Clarke County, as required by the relevant statute, even if a Clarke County resident was ultimately the beneficiary of the trust. When the defendant contests venue at trial and the evidence as to venue is conflicting, the State must prove venue as a jurisdictional fact beyond a reasonable doubt. Loyd v. State, 202 Ga. App. 1, 3 (2) (413 SE2d 222) (1991). Because the State failed to demonstrate the existence of venue in Clarke County beyond a reasonable doubt, DeVine’s conviction of theft by taking must be reversed.

2. DeVine also challenges the sufficiency of the evidence to support his conviction for perjury under Count 5 of the indictment. In that count, DeVine was charged with committing perjury on November 22, 1994 in “mak[ing] a false statement to wit: when asked whether he had talked to notary public Laura J. DiBenedetto concerning her signature on the July 1993 will of Genelle DeAnne Helms, and whether he instructed Ms. DiBenedetto to lie if questioned about DiBenedetto’s signature on that will, Billie Mack DeVine responded ‘no.’ ”

DeVine attacks the sufficiency of the evidence on three grounds: the requirement of corroboration of perjury, OCGA § 24-4-8; ambiguities in his testimony and that of the notary; and the immateriality of his testimony to the proceeding in which it occurred. We reverse because we conclude that the allegedly false testimony was immaterial to the issues presented in the probate court hearing at which it was made.

The hearing at issue was held in the Clarke County Probate Court in the probate in solemn form of the will of Genelle Helms and the caveat interposed by Bryant’s relatives. DeVine correctly points out that the self-proving affidavit signed by the notary was irrelevant to the hearing in question because the will was offered for probate in solemn form rather than as a self-proving will. As the probate judge noted during the hearing, “Georgia law doesn’t require a notary unless you’re doing a self-proving will. Two witnesses is all we require.” See also OCGA- §§ 53-2-40; 53-2-40.1. Moreover, at the beginning of the hearing, DeVine’s counsel stated, “We’ll stipulate and agree that [Genelle Helms’s will] was not signed in the presence of a notary public.”

DeVine contends that because the self-proving affidavit was irrelevant to the hearing at which he testified, any question and answer concerning an irregularity in the notary’s signature on the self-proving affidavit was likewise irrelevant to the hearing on the probate in solemn form. We are constrained to agree.

“A person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.” OCGA § 16-10-70 (a). “In other words, falsely swearing to an immaterial matter is not an indictable offense.” Wilson v. State, 115 Ga. 206, 207 (1) (41 SE 696) (1902). Materiality for the purpose of this statute has been defined as “whether the alleged false statement could have influenced the decision as to the question at issue in the judicial proceeding in which the perjury is alleged to have been committed.” Hardison v. State, 86 Ga. App. 403 (71 SE2d 525) (1952). Whether the notary here did or did not witness the testator’s signature on a self-proving affidavit was irrelevant to consideration of the probate of a will in solemn form. Both witnesses to the will appeared and testified to the testator’s signature.

This does not end our analysis, however, because even a false statement not directly material may be collaterally material for purposes of charging perjury if it is testimony “ ‘going to the credit of a witness[.]’ [Cits.]” Wilson, supra at 208 (1) (earlier contradictory statements are material for assignment of perjury because complaining witness may be impeached thereby). Such testimony includes false statements that a witness “has not made a specified statement material in the case, that he has not expressed hostility to the defendant, that he has never been in prison.” (Citations and punctuation omitted.) Id. A statement denying that a witness has an interest in or bias concerning the outcome of a case is admissible under OCGA § 24-9-68 and goes to that witness’s credit. It thus may, if false, provide a basis for a charge of perjury. Clackum v. State, 55 Ga. App. 44, 49 (5) (189 SE 397) (1936) (false testimony of purported eyewitness for civil plaintiff that he had not spoken with plaintiff’s attorney prior to trial material and chargeable as perjury).

In summary, our review of the relevant decisions indicates that even evidence not directly relevant to the issues on trial may still be material in the sense that it is admissible to impeach the witness or show his interest in the case in one of the statutorily prescribed ways, and therefore sufficiently material for the purpose of assigning perjury. But it also appears that the cases have limited this collateral materiality for purposes of perjury to those matters specifically provided for by statute: testimony disproving facts testified to by the witness, OCGA § 24-9-82; prior contradictory statements relevant to his testimony and to the case, OCGA § 24-9-83; demonstrating bad character by specified methods, OCGA § 24-9-84; and evidence showing the witness’s feelings or relationship to the parties, OCGA § 24-9-68.

Applying these principles to this case leads to the conclusion that the testimony complained of was not material for the purpose of assigning perjury. The underlying question of the propriety of the notary’s signature was not material to the matters litigated in the hearing, the notary did not testify at that hearing, and DeVine’s counsel conceded at the beginning of the hearing the only matter to which she could have testified. DeVine’s testimony regarding what he told a non-witness was not itself material to the proceeding in which he testified, was not a proper method of demonstrating bad character, did not disprove any material fact, and did not show his feelings or relationship to any party. Under these circumstances, the State failed to meet its burden of proving that DeVine knowingly and wilfully made a false statement material to an issue or point in question at the November 22, 1994 hearing.

Decided November 13, 1997

Cook, Noell, Tolley & Wiggins, Edward D. Tolley, Ronald E. Houser, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.

       The child was born out of wedlock; Genelle Helms originally intended to place the child for adoption but then revoked the adoption.

       The second count of the indictment actually states that the theft by taking occurred between November 1992 and January 1992. But the trial court denied DeVine’s motion to dismiss on this ground, and it is not enumerated as error.

       The trial court instructed the jury that the beneficiary’s residence in Clarke County controlled on the issue of venue. DeVine also enumerates this jury instruction as error.

       While it is possible that DeVine briefly exercised control over the funds in Fayette County, when the probate court of that county released the funds for the creation of the trust, DeVine was not convicted of wrongfully acquiring the funds, but of unlawfully appropriating them after acquisition.

       DeVine was not charged with stating that the irregularity in the notary’s signature did not in fact occur, or of making a false statement in connection with the affidavit itself. DeVine points out in his brief that he repeatedly acknowledged the irregularity in the notary’s signature during the probate court hearing, at deposition, and upon earlier questioning by the Florida investigator.

       But it is not permissible to impeach a witness by disproving facts testified to regarding an immaterial matter or through prior inconsistent but immaterial statements, Gilbert v. State, 159 Ga. App. 326, 327-328 (2) (283 SE2d 361) (1981), and such statements therefore could not form a basis for a charge of perjury.


author: Beasley, Judge.

text:
    A97A1412.
    SOMMERS v. STATE COMPENSATION INSURANCE FUND.
    (494 SE2d 82)
   Beasley, Judge.

Melanie Sommers sued several defendants to recover damages for injuries she sustained in an automobile accident. Because Som-mers suffered these injuries during a business trip, State Compensation Insurance Fund (“SCIF”) paid her workers’ compensation benefits and moved to intervene in the suit, claiming a lien pursuant to OCGA § 34-9-11.1. The court allowed SCIF to intervene. A jury returned a special verdict for Sommers, awarding her $35,000 for past medical expenses, $176,000 for lost wages, $250,000 for pain and suffering, and $65,443 for future damages. The court entered judgment for Sommers against the tortfeasors, reserving for later determination the issue of SCIF’s entitlement to the statutory lien.

Sommers filed a satisfaction of that judgment, then filed a notice of appeal from the order allowing intervention. Finding the notice an invalid attempt to appeal from a judgment that was not final, the trial court dismissed the notice of appeal and sanctioned Sommers’ attorneys for filing it. The court then found the jury’s award had “fully and completely compensated” Sommers and, pursuant to OCGA § 34-9-11.1 (b), entered final judgment for SCIF in the amount of its lien — $70,717.17. The judgment also apportioned attorney fees between counsel for Sommers and SCIF. Plaintiff Sommers appeals.

1. Without merit is Sommers’ claim that the trial court erred by allowing SCIF to intervene in her personal injury action. OCGA § 34-9-11.1 (b) creates a subrogation lien on behalf of employers and insurers for amounts paid in workers’ compensation and provides that “[t]he employer or insurer may intervene in any action to protect and enforce such lien.” Id. “[W]e interpret the statutory language at issue as granting [SCIF] the right to intervene if it chooses to do so. [Cits.]” Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7) (1995).

Although Sommers argued that SCIF’s motion to intervene was untimely, “whether a motion to intervene is timely is a decision entrusted to the sound discretion of the trial court. [Cits.]” AC Corp. v. Myree, 221 Ga. App. 513, 515 (1) (471 SE2d 922) (1996). The expiration of the period of limitations is not a controlling factor, as the court explained in Myree. No abuse of discretion occurred.

2. Error is enumerated in dismissal of the first notice of appeal from the court’s order of September 17, 1996, granting judgment for Sommers against the tortfeasors but reserving questions related to SCIF’s lien. Sommers cites no authority supporting her position; the enumeration is patently without merit.

As intervenor, SCIF became a party to the case and asserted its claim to Sommers’ recovery, a point made clear in the trial court’s order allowing intervention. See generally Larkin v. Laster, 254 Ga. 716, 718 (3) (334 SE2d 158) (1985); Woodward v. Lawson, 225 Ga. 261, 262 (167 SE2d 660) (1969). That claim remained pending when Sommers filed her notice of appeal in October. “In a case involving multiple claims [or parties], a decision adjudicating fewer than all the claims [or parties] is not a final judgment. In such circumstances, there must be an express determination that there is no just reason for delay and express direction for the entry of judgment under OCGA § 9-11-54 (b) or there must be compliance with the certificate of immediate review requirements of OCGA § 5-6-34 (b). Where neither of these code sections is followed, the appeal is premature and must be dismissed.” (Citations and punctuation omitted.) Hogan Mgmt. Svcs. v. Martino, 225 Ga. App. 168, 169 (2) (483 SE2d 148) (1997). As the Supreme Court held in Jones v. Singleton, 253 Ga. 41, 42 (1) (316 SE2d 154) (1984), the trial court has authority to dismiss a notice of appeal filed from a non-final judgment. See also Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 860 (1) (424 SE2d 33) (1992).

3. Sommers challenges the trial court’s sanction for filing the improper notice of appeal. After a hearing, the court found Sommers’ position that the September 17, 1996 order was a “final judgment” lacked “substantial justification.” Although the order states that Sommers argued the order was “not” a final judgment, it is clear from the hearing transcript and the entire order that the addition of the negative was a typographical error. Apparently acting pursuant to OCGA § 9-15-14 (b), the court determined Sommers filed the notice of appeal from that order “for purposes of delay and harassment” and awarded SCIF’s attorneys $825 in fees associated with their efforts to dismiss the improper notice of appeal.

An award of attorney fees based on OCGA § 9-15-14 (b) may be reversed only if the trial court abused its discretion in making the award. Santora v. American Combustion, 225 Ga. App. 771, 774 (2) (485 SE2d 34) (1997). Shortly after Sommers filed the notice of appeal, SCIF moved to dismiss it, pointing to the fact that the order appealed from was not a final judgment. Instead of acknowledging its error, and dismissing the notice voluntarily, Sommers filed a written response to that motion and argued at the hearing but provided no authority suggesting the order was an appealable final judgment. Such circumstances warrant a finding of action without substantial justification and for purposes of delay only. Santora, supra.

The affidavit of one SCIF attorney showed $375 in fees related to this motion, and another SCIF attorney testified he spent $750 worth of time challenging the improper notice of appeal. The court was authorized to award $825 in fees as “reasonable and necessary” to defend against Sommers’ improper action. OCGA § 9-15-14 (b); Santora, supra.

4. After determining Sommers improperly filed the notice of appeal, the court decided the issue it had reserved for later determination in its September 17,1996 order: SCIF’s entitlement to recover on its workers’ compensation lien. The court found SCIF could recover because the jury’s verdict “fully and completely compensated” Sommers for her economic and non-economic losses, as required by OCGA § 34-9-11.1 (b). The court awarded SCIF $70,717.17 in satisfaction of its lien.

(a) Sommers claims a jury, rather than the court, should have determined whether Sommers was “fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.” OCGA § 34-9-11.1 (b). Sommers waived any right she may have had to present this issue to a jury, even if ever there was such a right.

At the hearing on SCIF’s motion to intervene, the court stated it planned to allow SCIF to intervene and asked the parties to fashion a procedure which would keep the jury from discovering SCIF had paid collateral benefits. Sommers’ counsel told the court he believed the parties could work out a solution. Two weeks later, the court entered an order that allowed SCIF to intervene and provided: 1) that SCIF would not be named in the style of the case; 2) that Sommers would present to the jury “all available evidence” of her economic and non-economic damages; 3) that Sommers would do nothing in the trial to prejudice SCIF’s lien; 4) that the jury would return a special verdict, separating the various special damages; 5) that SCIF would present evidence to support its lien outside the presence of the jury, and 6) that Sommers would have an opportunity to raise objections and present evidence disputing the validity or extent of SCIF’s claim. Beneath the heading, “Presented and Consented to by,” SCIF’s attorney signed the name of Sommers’ attorney “with express permission.” Sommers made no further objections to this order.

The parties later signed a pretrial order that makes no mention of any jury issue regarding SCIF’s lien. After the jury returned its verdict and retired, the court allowed SCIF to present evidence supporting its lien. SCIF requested and received permission to present that claim at a future date. At no time did Sommers object to that request or suggest the jury had any further decisions to make. Her acquiescence in the trial court’s procedure, her failure to request that the issue be presented to the jury, and her failure to object when the issue was not presented to the jury waive it and preclude its consideration on appeal. A party cannot complain of error resulting from its own conduct or tactics. Harmon v. State, 224 Ga. App. 890, 892 (1) (482 SE2d 730) (1997); see also Martin v. Williams, 215 Ga. App. 649 (2) (451 SE2d 822) (1994) (acquiescence in form of verdict and failure to raise request for bifurcation of trial waives issue on appeal).

(b) Belying on the jury’s special verdict and the “record,” the court found Sommers had been “fully and completely compensated” for her injuries. The trial court’s findings of fact are analogous to a jury’s verdict and will be upheld if there is any evidence to support them. Simmons v. Bearden, 222 Ga. App. 430 (474 SE2d 250) (1996). Sommers has not provided this Court with a trial transcript. It appears from the trial court’s comments at the hearing that it relied on the trial evidence in making its determination. Therefore, we cannot say the trial court’s ruling is not supported by evidence. See Kim v. Tex Financial Corp., 223 Ga. App. 528, 529 (2) (479 SE2d 375) (1996) (enumerations of error dependent on review of transcript are waived where transcript not available to appellate court).

5. In her remaining enumeration, Sommers claims the court erred in its apportionment of reasonable attorney fees pursuant to OCGA § 34-9-11.1 (d) by failing to grant her attorneys a substantial fee from the amounts awarded to SCIF for its lien. In their motion before the trial court, Sommers’ attorneys actually sought to have the trial court award them “100 percent of the attorney[ ] fees incurred in efforts to obtain the complete judgment including any portion thereof.” In effect, they sought to deny SCIF’s attorneys any fee whatsoever.

The statute provides: “In the event of a recovery from [the third-party tortfeasor(s)] by the injured employee . . ., the attorney representing such injured employee . . . shall be entitled to a reasonable fee for services; provided, however, that if the employer or insurer has engaged another attorney to represent the employer or insurer in effecting recovery against [the tortfeasor], then a court of competent jurisdiction shall upon application apportion the reasonable fee between the attorney for the injured employee and the attorney for the employer or insurer in proportion to services rendered.”

Decided November 13, 1997

Savage, Herndon & Turner, Robert B. Turner, Thomas R. Tag-gart, for appellant.

Shur & McDuffie, Brett F. Shur, Austin & Sparks, John B.

Based on the judgment for $526,443, the trial court found a reasonable fee for the services performed in obtaining the judgment to be $198,854.33. Of that total fee, it apportioned $175,305.51 to Som-mers’ attorneys and $23,548.82 to SCIF’s attorneys based on services each rendered. These amounts reflect a fee of slightly less than one-third of the entire judgment for Sommers’ counsel (33.33333 percent of $526,443 is $175,480.98), and slightly less than one-third of the lien award for SCIF’s attorneys (33.33333 percent of $70,717.17 is $23,572.39). The court found that apportionment “reasonable in part due to the adversarial position taken by [Sommers] towards [SCIF] which sought to preclude any recovery [for SCIF].”

No cases have yet interpreted the attorney fees provision of OCGA § 34-9-11.1 (d). The trial court has discretion to apportion the award based on the evidence. See First Fed. &c. of Gainesville v. Stephens, 226 Ga. 867, 868 (178 SE2d 170) (1970), in which the court held that in apportioning fee awards between an attorney and a receiver under OCGA § 9-8-13, a trial court acts with discretionary authority. The evidence allowed the court to find that both Sommers and SCIF retained their attorneys to pursue their respective claims on a one-third contingency fee basis. SCIF’s attorneys originally filed an independent suit against the tortfeasors and pursued recovery and later sought permission from Sommers’ counsel to consolidate SCIF’s case with Sommers’ personal injury action. Sommers’ counsel refused to agree to consolidation or intervention, forcing SCIF to seek the court’s approval to intervene. Although Sommers’ counsel claim SCIF’s attorneys did nothing at trial, the record makes clear that the insurer did not participate in the trial at the express request of Sommers, who feared the jury would be prejudiced by the mention of a workers’ compensation carrier. Based on the evidence showing Sommers’ attorneys actively opposed SCIF’s attempts to participate in the suit, and the fact that the awards to each group of attorneys approximate the one-third fee specified in their contracts, no abuse of discretion infected the fee apportionment.

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

Austin, for appellee.

Webb, Tanner & Powell, Ralph L. Taylor III, amicus curiae.


author: Judge Harold R. Banke.

text:
    A97A1755.
    CLAXTON et al. v. LEE.
    (494 SE2d 80)
   Judge Harold R. Banke.

In this negligence case, Alton B. Lee, Jr. sued Edward Claxton, Bobby Claxton, and Larry Claxton individually and as partners in Claxton Trucking Company and their employee, Jimmy D. Beck-worth (collectively the “Claxtons,” unless otherwise noted). The jury awarded Lee $269,750 in damages. The Claxtons enumerate four errors on appeal.

This case arose after Beckworth, who was driving one of the Claxtons’ tractor-trailer logging trucks, pulled into a convenience store for fuel. In pulling back out onto the road, Beckworth crossed the centerline into the oncoming lane. In the waning light, Lee did not see the truck in his lane until it was too late to stop. Lee was injured in the resulting collision. After the collision, Beckworth received a traffic citation for failure to yield the right of way. Beckworth failed to appear to contest that charge. Held:

1. The trial court’s instructions on the duty to yield the right of way were not incomplete. At trial, the court gave the pattern charges on yielding the right of way (OCGA § 40-1-1 (52)) and the duty to yield when entering or crossing a roadway from a private road (OCGA § 40-6-73). The Claxtons maintain that these charges, when read together, incorrectly impose a duty on vehicles entering highways to avoid collisions under all circumstances, overlooking the applicable exception to this rule which abrogates the duty to yield when no approaching vehicles are in sight.

This argument does not comport with the evidence. Beckworth testified that he saw Lee’s vehicle a quarter of a mile away when his semi was only half-way across Lee’s lane. He admitted that after seeing Lee’s vehicle, he elected to continue into Lee’s lane, totally blocking it and a portion of the shoulder, instead of stopping or reversing his truck. We reject the Claxtons’ contention that under the facts of this case the duty to yield dissipated the moment Beckworth nosed his bumper onto the highway without seeing Lee. See OCGA § 40-6-73 (imposing a duty to yield to “approaching” vehicles). Thus, the trial court properly rejected the Claxtons’ request to charge no. 18, which stated “a driver entering or crossing a roadway does not have a duty to yield the right of way to a vehicle which is not visible to the driver entering the roadway.”

Both Harrison v. Ellis, 199 Ga. App. 199, 201 (404 SE2d 348) (1991) and Simpson v. Reed, 186 Ga. App. 297, 299 (9) (367 SE2d 563) (1988) are distinguishable on their facts. In neither did the defendants elect to continue into an oncoming lane, thereby blocking the entire roadway, after seeing a vehicle heading toward them.

2. The trial court did not err in admitting evidence of one of Beckworth’s prior traffic citations. In Lee’s case in chief, Beckworth admitted that he received the citation for failure to yield and did not appear to contest the charge. When his counsel asked him on direct why he did not go to-court after receiving the citation, Beckworth responded that he knew he had to pay a fine but did not know he had to go to court and was unaware of the significance of that decision to the instant civil proceedings. After argument, the trial court permitted Lee to impeach Beckworth’s professed ignorance of court procedure with a certified, redacted copy of his driving record.

Upon making the statements, Beckworth became subject to impeachment as to their veracity. Williams v. State, 257 Ga. 761, 763-764 (4) (b) (363 SE2d 535) (1988). His driving record at least arguably contradicted his professed ignorance about traffic court procedure and the reasons for appearing to contest the charges. In any event, the Claxtons demonstrated no harm from the admission of this limited evidence of “another traffic violation.” Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994) (harm and error must be shown for reversal).

3. The evidence was insufficient to support the $15,000 award for lost earnings Lee received. Lee testified that he owned and operated a retail meat business and could not work for a specific period following the collision. He offered his tax returns over several years which showed a $15,000 decline in his adjusted gross income during the tax year following the collision, and explained that fluctuations in the market and the sale of hogs caused several increases in his past income. However, he never testified as to his rate of compensation or his applicable earnings for the period in which he claimed the loss. See Mathis v. Copeland, 139 Ga. App. 68, 69 (228 SE2d 23) (1976). Although his tax returns showed a decrease in income in the year following the collision, Lee failed to establish its proximate cause; for example, he presented no evidence that he hired a new employee to substitute for him or paid his employees additional wages while they compensated for his absence. See Keplinger v. Cook, 115 Ga. App. 540, 541-542 (1) (154 SE2d 765) (1967). Accordingly, the evidence of lost earnings was insufficient to send the issue to the jury. See Super Discount Markets v. Coney, 210 Ga. App. 659, 660 (2) (436 SE2d 803) (1993) (proof of lost wages must be “reasonably certain and not based upon mere speculation”). We reverse only that part of the judgment attributable to lost earnings.

Decided November 13, 1997.

Newton, Smith, Durden, Kaufold & Smith, Wilson R. Smith, for appellants.

W. McMillian Walker, Ronda E. Hobby, for appellee.

Judgment affirmed in part and reversed in part.

Ruffin and Eldridge, JJ, concur.

       Because the first two enumerations deal with different aspects of the same subject, they will be treated jointly.

       The court gave the following charge on right of way: “[T]he term right of way is defined as the right of one vehicle to proceed in a lawful manner in preference to another vehicle approaching under such circumstances of direction, speed, and proximity as to give rise to danger of collision unless one grants precedence to the other.” It charged on duty to yield on private roads as follows: “The driver of a vehicle about to enter or cross a roadway from any place other than another roadway, shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.”


author: Blackburn, Judge.

text:
    A97A1900.
    WOZNIUK v. KITCHIN.
    (494 SE2d 247)
   Blackburn, Judge.

William Wozniuk went to a hospital emergency room complaining of stomach pain. He was examined by Houston W. Kitchin, M.D., who diagnosed his condition as viral gastroenteritis and sent him home. The next evening, Wozniuk returned to the emergency room with stomach pain and was diagnosed by another physician as having acute appendicitis. An emergency appendectomy was performed to remove Wozniuk’s ruptured appendix. Wozniuk sued Kitchin for medical malpractice, alleging that he negligently misdiagnosed Wozniuk’s condition. The jury returned a verdict in favor of Kitchin, and Wozniuk appeals, asserting numerous errors. For the reasons set forth below, we affirm.

1. Wozniuk contends the court erred in failing to charge the jury as requested that “if a witness shall swear willfully and knowingly falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or unimpeached evidence.” See OCGA § 24-9-85. “For a trial court to have a duty to charge this provision, it must manifestly appear not only that the witness has on another occasion sworn falsely to a material matter but he has done so wilfully and knowingly. The rule does not extend to situations where it is shown to be reasonably possible that the discrepancy was occasioned by mistake .or the failure of memory.” (Citations and punctuation omitted.) Abrams v. State, 157 Ga. App. 609, 610 (1) (278 SE2d 37) (1981); see also Smaha v. George, 195 Ga. 412, 418 (24 SE2d 385) (1943).

Wozniuk contends that the charge was required because of Kitchin’s testimony regarding whether he palpated Wozniuk’s abdomen during his examination. At trial, Kitchin testified that he did palpate Wozniuk’s abdomen. Wozniuk’s attorney then attempted to impeach Kitchin by asking about his earlier deposition testimony. In the deposition, in response to a question about the relevance of another witness, Tina Alexander, Kitchin appeared to indicate that he had not palpated Wozniuk’s abdomen. However, after his attorney objected at the deposition that Kitchin had misunderstood the question, Kitchin immediately testified that he did in fact palpate the abdomen. At trial, Kitchin testified that he had misunderstood the attorney’s original question in the deposition. He further testified that he had told the witness, Tina Alexander, that he had been sued for allegedly not palpating the abdomen, and that he was referring to this conversation in his deposition.

Viewed in context, it appears that Kitchin’s deposition testimony related to why the other witness was relevant (i.e., because of the allegation that Kitchin had not palpated the abdomen), and was not a statement that Kitchin did not in fact palpate the abdomen. This is the only reasonable construction of his deposition testimony, since Kitchin immediately thereafter, in response to a direct and unambiguous question, stated that he did palpate the abdomen. Accordingly, we cannot say that the trial court erred in concluding that it did not “manifestly” appear that Kitchin wilfully and knowingly swore falsely at the trial. Although Wozniuk states that this is a matter for the jury to decide, it is clear that a threshold determination on this issue must be made by the trial court, since the court does not have a duty to charge the statute unless it manifestly appears that the witness had wilfully and knowingly sworn falsely. See Abrams, supra; Smaha, supra. Thus, the trial court did not err in failing to charge the statute.

2. In his second enumeration of error, Wozniuk contends that the court erred in failing to give 11 separate jury charges requested by Wozniuk. As an initial matter, we note that this enumeration violates OCGA § 5-6-40 by including 11 separate assertions of error within a single enumeration. See West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567) (1990). Wozniuk does not separately discuss each of the requested charges or show how he was harmed by the failure to give any such charge. Rather, after quoting the requested charges, he merely states conclusorily that “[t]he refusal of the trial court to give even one of the non-pattern requests to charge submitted by appellants left the jury instructions heavily weighted in favor of appellee, thereby virtually compelling the jury to return a verdict in favor of appellee.”

“[H]arm as well as error must be shewn to warrant reversal,” CSX Transp. v. Barnett, 199 Ga. App. 611, 612 (1) (405 SE2d 506) (1991), and Wozniuk’s conclusory statement, not tied to any particular charge, does not satisfy his burden of showing harm. See Whitby v. Maloy, 150 Ga. App. 575, 576 (2) (258 SE2d 181) (1979) (“burden of showing harm, as well as error, rests upon the appellant”). Contrary to Wozniuk’s assertion, a review of the charges given does not show that they were one-sided or compelled a verdict for the defendant. As Wozniuk has not shown how he was harmed by the failure to give any of the requested charges, this enumeration is without merit.

3. Wozniuk contends that the court’s charge conference was a “sham” and did not comply with the letter or spirit of OCGA § 5-5-24 (b). This statute provides that “any party may present to the court written requests that it instruct the jury on the law as set forth therein. . . . The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury but shall instruct the jury after the arguments are completed.”

The record reflects that the parties presented written requests to charge to the judge at the beginning of trial. The court then prepared its proposed charges and submitted them to the attorneys the day before the evidence closed. After the close of evidence, the court asked the attorneys whether there were any “glaring omissions from the charge I gave y’all last night to look at.” Wozniuk’s attorney made several comments about charges he had requested, and the court then stated that he would have the opportunity to object after the charge was given.

Wozniuk contends that the charge conference was a “sham” because the judge had already prepared his charge and because he failed to give any of Wozniuk’s requested non-pattern charges. However, OCGA § 5-5-24 (b) does not require a judge to accede to a party’s requested charges, but merely requires the judge to inform the parties as to his action on the requests prior to closing arguments, so as to allow the parties to argue their cases intelligently to the jury. See Daniels v. State, 137 Ga. App. 371, 374 (224 SE2d 60) (1976). In this case, the judge did precisely that, even providing the parties with a written copy of his charge. If a party disagrees with the substance of the court’s charge, his remedy is to except to the charge and to demonstrate on appeal why his requested charges were proper and how he was harmed by the court’s failure to give them. Accordingly, this enumeration is without merit.

4. Wozniuk contends the court erred in failing to allow his attorney to treat Dr. William Lee, Kitchin’s personal physician, as a hostile witness, thereby enabling him to ask leading questions during direct examination. “Leading questions generally are allowed only on cross-examination. OCGA § 24-9-63. However, the trial court has the discretion to allow leading questions on direct examination, where, for example, the witness is nervous, or ignorant, or hostile. It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.” (Citation omitted.) Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993).

Prior to Lee’s testimony, Wozniuk’s attorney moved for permission to treat Lee as a hostile witness and ask leading questions, stating that Lee was “very hostile towards me [during his deposition] and was very reluctant to give testimony.” The trial judge denied the motion, stating that Lee’s hostility would have to be established in his trial testimony, not his deposition testimony. However, during Lee’s testimony, Wozniuk’s attorney never moved for permission to treat Lee as hostile. Under these circumstances, we cannot say that this is that “rare case” in which the court’s exercise of its discretion requires reversal. See Fugate, supra.

5. Wozniuk contends the court erred by allowing Kitchin to testify as to his treatment of Wozniuk after testifying earlier that he had no independent recollection of events. This enumeration is without merit.

Kitchin testified as follows: “Q. Do you have an independent recollection without looking at your notes what was said that day? A: Word for word? Q: Yes, sir. A: No, sir. Q: Well not even word for word. Do you remember what you said to him and what he said to you without — in general without looking at your notes. A: It’s been so long I’m afraid if I tried to remember, I might say something that wasn’t said. I’d rather read it.” Kitchin further testified as follows: “Q. Okay. Dr. Kitchin, do you have an independent recollection of seeing Mr. Wozniuk — do you remember distinctly seeing Mr. Wozniuk that day and what all went on in the emergency room without reference to your notes? A: Oh I can’t say that I do. That’s been a long time ago.” At most, Kitchin’s testimony showed that he did not remember everything that occurred without reference to his notes, not that he had no recollection of events.

In Kitchin’s subsequent testimony, he was primarily testifying based upon his notes and his normal routine, and not from his independent recollection of events. Thus, his testimony did not contradict his earlier statements.

Decided November 13, 1997

Gary C. Harris, for appellant.

McClure, Ramsay & Dickerson, John A. Dickerson, for appellee.

Finally, any inconsistencies in Kitchin’s testimony would go to the weight of such testimony and not its admissibility. Wozniuk was free to address any perceived inconsistencies during his cross-examination of Kitchin and during closing arguments. He has cited no authority for the proposition that a court must exclude testimony if it appears to conflict with prior testimony. This enumeration is without merit.

6. Wozniuk contends that the court erred in allowing one of Kitchin’s experts, Dr. Fowler, to testify that viral gastroenteritis could lead to acute appendicitis, arguing that this is an “unproven medical theor[y] based on ‘supposition,’ and not upon generally accepted and scientifically viable studies.”

In response to a question by Kitchin’s attorney, Dr. Fowler testified as to a number of different causes for a ruptured appendix. After discussing two potential causes, he stated that “there is at least a supposition in — in the literature that — that the — the lymposites [sic] . . .,” at which point Wozniuk’s attorney objected that “[h]e said there’s supposition in the literature. I don’t think he’s able to testify about supposition.” After the court overruled the objection, Fowler stated that he had used the wrong word. He testified that studies had concluded that viral infections in the intestine can lead to white blood cells accumulating in the lumen of the appendix and causing it to swell.

Wozniuk’s attorney did not raise any further objection to this testimony. Furthermore, on cross-examination he himself questioned Fowler as to whether viral gastroenteritis can cause an appendix to rupture. Fowler testified without objection about the scholarly article he had read showing that viral illnesses can be a cause of appendicitis. “[E]ven if counsel timely objects to certain testimony, its admission is not error where substantially the same evidence is subsequently admitted without objection.” State v. Larocque, 268 Ga. 352, 353 (489 SE2d 806) (1997); see also Tahamtan v. Tahamtan, 204 Ga. App. 680, 682 (4) (420 SE2d 363) (1992). Accordingly, this enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The trial testimony regarding the deposition was as follows: “Q. If you would, Dr. Kitchin, go to page 40 at page 24 [sic]. And we were talking about Tina Alexander, and I said to you the reason I asked you about her is because you listed her as one of the people that you had spoken to about the case. I believe that’s where you — and then you said Tina Alexander is the one that was on this case. Do you remember this? And then you said no, I remember what I asked her. I mean I told her about it, and then I said okay. And you said it was because I didn’t •— boils down to I didn’t check Mr. Wozniuk’s abdomen, and then I said you did not do that. And then your — you said — and read it from line 11 of your deposition, Dr. Kitchin, what you said when I said you did not do that. A. I said no, sir, but right now I’m not sure that I understood then what you mean when you said you did not do that.”


text:
    A97A1499.
    REDD v. THE STATE.
    (494 SE2d 31)
   Smith, Judge.

Alan Carter Redd was indicted on one count of possession of methamphetamine, OCGA §§ 16-13-30 (a), 16-13-26 (3) (B), and one count of obstruction of a law enforcement officer, OCGA § 16-10-24 (a). After his motion to suppress was denied, he stipulated to the remainder of the evidence and waived jury trial. At a bench trial, Redd was acquitted of obstruction of an officer but convicted of possession of methamphetamine. He appeals the judgment of conviction and sentence, contending in his sole enumeration of error that the trial court erred in denying his motion to suppress. We disagree and affirm.

Construed to support the trial court’s ruling, the evidence shows that an unidentified citizen came in person to the Cumming Police Department and reported that he had seen a man walking along a local highway and removing mail from a mailbox. He gave a detailed description of the man and his clothing. This information was dispatched by radio to a patrol officer who observed a man, later identified as Redd, walking along the highway in the location reported. According to the officer, Redd fit the description given by the dispatcher “to a tee.” The officer notified the dispatcher that he had located the individual and turned his vehicle around to speak to Redd, but Redd turned and began walking in the opposite direction.

The officer called to Redd and asked him what he was doing, but, according to the officer, “He really didn’t answer me.” The officer explained to Redd that he had stopped him to inquire about someone taking mail from mailboxes and that “we could clear the problem up real quick if he’d give me consent to search him.” According to the officer, Redd appeared very nervous, backed away from the car, then turned and walked away. The officer testified that he would have conducted a limited protective search for weapons had Redd allowed him to approach, but “that never ever happened because he never let me get close enough to search him.”

When the officer called out to him to come back, Redd responded, “ ‘I’m not going to be arrested, and I’m not coming back.’ ” When the officer repeated his request for Redd to stop and talk to him, Redd did not answer but jumped over a guardrail beside the highway and disappeared into nearby woods. Other city and county law enforcement officers arrived in response to the officer’s earlier call and surrounded the wooded area that Redd had entered. Another officer encountered Redd coming out of the woods, identified himself, and ordered Redd not to move. Redd did not obey but turned away and reached into his pocket. The officer drew his service revolver and ordered Redd not to move and to put his hands in the air; Redd first discarded a “small, black case” he was holding in his hand and then obeyed. The case contained two syringes and a white powdery substance later shown to be methamphetamine.

At the hearing, Redd gave a substantially different version of his encounter with the first officer, contending that he responded completely and fully to the officer’s questions and told the officer that he lived “right up the road.” He testified that he explained to the officer he was simply checking his own mailbox. He then declined to be searched. When the officer continued to follow him in his car, Redd testified he became fearful that the officer was going to run him over, jumped over the railing, slipped, and fell down a hill into the woods. But Redd agreed that he later disobeyed the arresting officer’s instructions not to move in order to discard the black case from his pocket.

On appeal, Redd contends there was no basis for the arrest which led to the discovery of the methamphetamine. While acknowledging that the officer had a right to approach him and talk to him, he contends that the officer lacked probable cause to arrest him after their encounter. While Redd’s account of his conversation with the officer, if believed, might produce a different result, the officer’s contradictory testimony authorized the trial court to conclude that probable cause existed for Redd’s ultimate arrest.

In reviewing a motion to suppress, “[t]he evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639) (1990). As the trier of fact, the trial court was authorized to accept the officer’s account of the incident over that presented by Redd.

As Redd acknowledges, the officer’s initial questioning of him was proper. “Not all seizures of the person must be justified by probable cause to arrest for a crime. Certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime. Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.” (Citations and punctuation omitted.) In the Interest of J. L. G., 209 Ga. App. 565, 566 (434 SE2d 126) (1993). But an individual’s conduct in response to questioning or attempted questioning may rise to the level of probable cause to conduct an arrest or search. The cumulative effect of the officer’s observations and Redd’s conduct was sufficient to meet this standard.

Information received by radio may form part of the basis for establishing probable cause. Morgan, supra at 735. Redd was the only individual present at the scene as reported by the informant, and he matched the informant’s description “to a tee.” Redd’s abrupt change of direction upon seeing the police officer was a further ground for suspicion. See generally id. His refusal to answer questions or follow the officer’s instructions can itself be construed as an attempt to leave the scene, “adding another basis for the officers’ suspicions.” D’Angelo v. State, 223 Ga. App. 558, 559 (479 SE2d 384) (1996). Finally, Redd’s flight into the woods, “being evidence of consciousness of guilt in the circumstances gave rise to an articulable suspicion that appellant was engaged in criminal activity and authorized police to stop appellant briefly for investigation. Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search.” (Citations and punctuation omitted.) J. L. G, supra at 566.

Redd also contends that the officer’s right to conduct an inquiry terminated as soon as the officer requested that Redd permit a search of his person. But a request to search does not have this effect, as noted in State v. Foster, 209 Ga. App. 143, 145, n. 1 (433 SE2d 109) (1993): “[T]he officers in this case, though having facts sufficient to support a brief detention, initially pressed for consent to search, and when no consent was given, initiated a nonconsensual investigation pursuant to Terry.” While Redd’s account of the incident supports his contention that he answered the officer’s questions and the inquiry had ended before he left the scene, the trial court was authorized to believe the officer’s account and conclude that Redd did not respond to the officer’s questions, never allowed the officer to get close enough to question him or complete a limited patdown for weapons, ignored several requests to stop, and then fled into the woods.

Finally, because Redd threw away the bag containing the methamphetamine when the arresting officer approached him, the trial court was authorized to find that the methamphetamine was not seized as the result of a search but was instead abandoned before Redd’s arrest. D’Angelo, supra at 559; Welch v. State, 217 Ga. App. 412, 413-414 (1) (457 SE2d 829) (1995). Redd’s contention that he had already been arrested when he discarded the methamphetamine is without merit. At that time, Redd disobeyed the arresting officer’s order not to move, turned around, and reached into his pocket to discard the bag, causing the officer to believe he was reaching for a weapon. Like the defendant in Hunt v. State, 205 Ga. App. 490 (423 SE2d 24) (1992), Redd had not been subjected to the application of physical force, nor had he submitted to an officer’s “show of authority.” Id. at 491. The trial court did not err in denying Redd’s motion to suppress.

Decided October 28, 1997

Reconsideration denied November 14, 1997.

Banks, Stubbs & Neville, Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, Alla C. Shaw, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Other officers later found a pepper spray canister on Redd’s person.

       Questioned about Redd’s contentions, the officer did not recall Redd giving any information regarding his identity or his residence.