text:
    A91A1271.
    SIMS v. FOSS.
    (411 SE2d 59)
   Beasley, Judge.

This case involves summary judgment in a suit on a note and on a counterclaim for business losses. In 1980, Robert and Estelle Burton sold appellant, Evelyn Sims, the assets of a retail clothing store. Sims executed a promissory note in partial payment of the purchase price. Title to the building housing the clothing store was not conveyed to Sims, who rented the building from the Burtons under a 15-year lease. Sims did not know that the building was titled in the name of Reba Louise Burton, the Burtons’ daughter.

In July 1986, the City of Rome filed an action to condemn for road-widening that portion of the leasehold property fronting the adjacent roadway and used by the business for customer parking. Although the condemnor was aware of Sims’ operation of the business and her leasehold interest, only Reba Burton was named as a condemnee. The condemnor paid Burton for the valuation of the land, easement, and pavement, as well as consequential damages based on reduced rental payments for the remaining economic life of the building as a result of reduction by approximately 22 percent of the store’s business due to loss of parking.

In December 1986, Sims’ counsel wrote to the city manager referring to a meeting about the parking spaces with the city attorney about two months earlier. The letter complained of the failure to name Sims as a party in the condemnation action, asserting a lessee’s right to damages for business losses in a partial-taking condemnation and citing Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314 (265 SE2d 10) (1980). The letter also gave the city ante-litem notice of Sims’ intent to file an inverse condemnation action, as required by OCGA § 36-33-5.

The following April, Sims ceased operating the clothing business at its original location because construction and barricading activities prevented access to the building. She also subsequently ceased paying to the Burtons the monthly installments on the promissory note and the monthly rent under the lease.

Appellee Foss, as administrator of Robert Burton’s estate, and Estelle Burton sued Sims on the promissory note. She counterclaimed, seeking damages for lost sales and the costs and expenses of relocating her business. She alleged that the Burtons were guilty of fraud and misrepresentation by not informing her that their daughter was the true owner of the property, and that they breached their obligations under the contract for sale of the business by not giving her notice of the condemnation proceeding or alternatively protecting her separate interest in it. The trial court granted plaintiffs’ motion for summary judgment on both the complaint and the counterclaim, ruling that it is the condemnor rather than the lessor who would be liable for the damages sought in the counterclaim rather than the lessor.

Damages paid in the condemnation action represented the damages of the owner of the property and did not include business losses suffered by the lessee. Lessee was entitled to notice from the condemnor, not the lessor. OCGA §§ 22-2-20; 32-3-8. Lack thereof may have given rise to relief under OCGA § 9-3-21 or by way of an inverse condemnation action for her consequential damages. Georgia Dept. of Transp. v. Woodard, 254 Ga. 587 (331 SE2d 557) (1985). A lessee “may recover [from the condemnor] for business losses as an element of compensation separate from the value of the land whether the destruction of [the] business is total or merely partial,” under certain circumstances. Department of Transp. v. Dixie Hwy. Bottle Shop, supra at 315.

Decided September 3, 1991

Reconsideration denied September 30, 1991.

John E. Sawhill III, for appellant.

Barkley & Garner, Larry J. Barkley, for appellee.

The law also permits interest holders to intervene, OCGA §§ 22-2-139 and 32-3-17. Lessee did not do so. She may not have found an opportunity to intervene, if the funds drawn down in August occurred before her knowledge of the condemnation. However, it appears that she knew of the condemnation by way of discussion with the condemnor’s appraiser about the loss of parking spaces sometime prior to his written report to the condemning authority dated March 10.

In any event, there was no genuine issue of material fact with respect to counter claimants’ liability for business losses to the condemnation, and they were entitled to the summary judgment which the trial court awarded. OCGA § 9-11-56.

Judgment affirmed.

Banke, P. J., and Car ley, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Pope, Judge,

license: Public Domain

text:
    A91A1276, A91A1277.
    A91A1278.
    CULBERSON et al. v. FULTON-DeKALB HOSPITAL AUTHORITY; and vice versa. McMICHAEL v. CULBERSON et al.
    (411 SE2d 75)
   Birdsong, Presiding Judge.

Appellants/cross-appellees James and Priscilla Culberson, parents of the deceased child, Shermeca Culberson, brought a wrongful death action in their behalf against appellees/cross-appellants. Appellee/cross-appellant, the Fulton-DeKalb Hospital Authority (Authority) d/b/a Grady Memorial Hospital (Grady Hospital or Grady) and appellee/cross-appellant Dr. Julia McMichael filed a joint motion for summary judgment. The trial court granted that part of the motion in behalf of the Authority and Grady Hospital, but denied that portion of the motion as to Dr. McMichael. Appellants James and Priscilla Culberson appeal that portion of the order of the trial court granting motion for summary judgment to the Authority and Grady Hospital in Case No. A91A1276. In Case No. A91A1277, the Authority and Grady cross-appeal that portion of the order of the trial court denying motion for summary judgment on behalf of Dr. McMichael; in Case No. A91A1278, Dr. McMichael likewise cross-appeals. Held:

Case No. A91A1276

1. In the whole court opinion of Hospital Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (404 SE2d 796), the majority concluded inter alia that hospital authorities established pursuant to the Hospital Authorities Law (codified at OCGA § 31-7-71 et seq.) are entitled to the defense of governmental immunity except to the extent there has been waiver under the constitutional provision. This rule was held applicable to the Hospital Authority of Fulton County d/b/a North-side Hospital and is equally applicable to the Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital. Walker v. Fulton-DeKalb Hosp. Auth., 200 Ga. App. 750 (409 SE2d 529) (1991).

(a) Appellant’s assertion that the Constitution of Georgia (Ga. Const, of 1983, Art. I, Sec. II, Par. IX) does not extend to provide sovereign immunity to the Authority and Grady, because these entities are not encompassed within the term “the state and all of its departments and agencies” is without merit. The Constitution of Georgia extends sovereign immunity to counties and their instrumentalities as well. Litterilla, supra at 346-347, citing Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95).

(b) There is no evidence in this record that the Authority and Grady have obtained liability insurance thereby waiving their claim of sovereign immunity. Even assuming the Authority and Grady had created their own fund, designated or otherwise, available to pay medical malpractice claims, this would not constitute a self-insurance fund resulting in the waiver of sovereign immunity, as the Authority and Grady are not authorized to establish a self-insurance fund. Logue v. Wright, 260 Ga. 206 (2) (3) (392 SE2d 235); Litterilla, supra at 350.

(c) Appellant’s contention that the Authority and Grady have waived sovereign immunity due to the legislative grant to the hospital authorities established under the Hospital Authorities Law of the power to “sue and be sued” (OCGA § 31-7-75) is without merit. Self v. City of Atlanta, 259 Ga. 78, 80 (1) (377 SE2d 674); Litterilla, supra at 346. Further, appellant’s argument that Self should not be given retroactive operation was decided adversely to this contention in Litterilla.

(d) Although this is an issue of first impression, we find that just because the Authority, pursuant to a written contract, received certain funds from Fulton and DeKalb Counties in general support of an indigent treatment program, including inter alia funds “for the purpose of providing medical care or hospitalization for the indigent sick and poor,” such a receipt of funds would not divest the Authority or Grady of their character as agencies or instrumentalities of the county being operated primarily for the benefit of the public rather than for the generation of revenue for the county. Cf. Litterilla, supra. We also are satisfied that receipt of such funds would not per se divest Grady of its legal status as an incorporated hospital primarily maintained as a charitable institution; charitable institutions must obtain funds to operate, maintain, and improve charitable programs somewhere. Cf. Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517 (385 SE2d 436).

Moreover, the contract, between the Authority and Fulton and DeKalb Counties, in effect at the time of Shermeca Culberson’s death, was executed on November 13, 1953, and apparently subject to minor modification in October or November of 1958. This contract, although requiring that the Authority “shall construct, equip and finance such adequate hospital facilities and projects for use in rendering medical care and treatment to said indigent sick of the [two] counties” does not require the Authority or Grady to provide patient care to any particular indigent person. (Emphasis supplied.) In contrast, the contract expressly requires the Authority to provide, upon request, in addition to its treatment and care facilities, “treatment, medicine [and] care” to certain county employees. Further, neither the deceased nor her parents, the appellants, were third-party beneficiaries of this written contract. “ ‘In order for a third party to have standing to enforce a contract under (OCGA § 9-2-20 (b)) it must clearly appear from the contract that it was intended for his [or her] benefit. The mere fact that [the third party] would benefit from performance of the agreement is not alone sufficient.’ ” Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391 (1) (367 SE2d 278). Examining the written contract in its entirety, we find the parties did not have the requisite intent to make either the deceased or her parents third-party beneficiaries thereof. Also, “[t]here is no [express or implied] intention manifested in the contract that the [parties] compensate any member of the public for injurious consequences.” Miree v. United States, 242 Ga. 126, 136 (249 SE2d 573).

Additionally, assuming without deciding there exists an implied contract between appellants (or their deceased daughter) and the Authority or Grady Hospital (compare Mattair v. St. Joseph’s Hosp., 141 Ga. App. 597, 598 (234 SE2d 537) aff’d 239 Ga. 674 (238 SE2d 366)), as a matter of law, “this is not an action based on a written contract”; and, “[t]hat being so, the [Authority’s and Grady’s] immunity under the doctrine of sovereign [or governmental] immunity was not waived and [the Authority and Grady also were] entitled to a [grant of motion for summary judgment] on the contract portion of [appellants’ claim against them].” Board of Regents &c. of Ga. v. Tyson, 261 Ga. 368, 370 (1) (404 SE2d 557) (1991).

Appellants’ numerous assertions regarding appellees’ defense of sovereign or governmental immunity and appellants’ enumeration of error are without merit.

2. In view of our above holding, we need not determine whether a genuine issue of material fact existed as to the claim of charitable immunity by appellee Authority and Grady. See generally Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 (353 SE2d 515); Cutts, supra; see also Litterilla, supra; compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205).

Case Nos. A91A1277 and A91A1278

3. Cross-appellants, Dr. McMichael, the Authority and Grady assert the trial court erred in denying summary judgment to Dr. McMichael on her defenses of sovereign and official (governmental) immunity, and on her charitable immunity defense, as Dr. McMichael was an agent of Grady when she treated Shermeca Culberson. Compare Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878); Swofford v. Cooper, 184 Ga. App. 50 (2) (360 SE2d 624) and Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438).

Review of the record reveals there exists a genuine issue of material fact, within the meaning of OCGA § 9-11-56, whether Dr. McMichael was an agent of Grady or the employee or agent of an independent contractor, Emory University.

4. Further, contrary to the arguments of cross-appellants, we find nothing in this record warranting our departure from the precedent contained in the whole court case of Cutts, supra at 519 (3).

Judgments affirmed.

Cooper, J., concurs. Pope, J. , concurs specially.

Pope, Judge,

concurring specially.

I concur in the holding in Case Nos. A91A1277 and A91A1278. I concur in the judgment only in Case No. A91A1276, in which the majority holds appellee Fulton-DeKalb Hospital Authority is entitled to governmental immunity from appellants’ suit.

For the reasons set forth in the dissenting opinion in Hospital Auth. of Fulton County v. Litterilla, 199 Ga. App. 345, 351 (404 SE2d 796) (1991) (Carley, J., dissenting), I do not agree that Self v. City of Atlanta, 259 Ga. 78 (377 SE2d 674) (1989), in which the Georgia Supreme Court held that the “sue and be sued” language of OCGA § 31-7-75 (1) does not signify a waiver of governmental immunity from suit, should be applied retroactively to this case in which the cause of action arose prior to the change of law announced in the Self opinion. However, because the Georgia Supreme Court has held the self-insurance plan for Grady Hospital does not serve to waive the hospital’s defense of charitable immunity, see Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 (2) (353 SE2d 515) (1987), I agree that the trial court properly granted summary judgment to the hospital in this case.

Decided September 9, 1991

Reconsideration denied September 30, 1991

William Q. Bird, for Culberson.

Alston & Bird, Robert D. McCallum, Jr., Robert P. Riordan, James C. Grant, for Fulton-DeKalb Hospital Authority.

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, for McMichael.

On Motion for Reconsideration.

Appellee Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital has attached certain documents to its brief in support of motion for reconsideration. Two of these documents are affidavits duly contained within the trial transcript and previously considered by this court. We have re-examined and reconsidered these documents, as well as the relevant contents of the entire record, in the disposition of this motion. Another document, however, contains only selected portions of a deposition by Dr. Julia McMichael. The deposition of Dr. McMichael is not listed in either the index of the record or of the supplemental record, and cannot be found by a thorough culling of the record and supplemental record which were forwarded to this court for appellate review by the parties. We must take our evidence from the record and not from the briefs of the parties. Thus, it is well settled that a brief or an attachment thereto cannot be used as a procedural vehicle for adding to the record. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33). Moreover, a motion for reconsideration or attachment thereto, like a brief, cannot be used as a procedural vehicle for adding evidence or fact representations to the record. Norman v. State, 197 Ga. App. 333, 337 (398 SE2d 395). Further, an examination of the partial deposition of Dr. McMichael reflects that nothing contained therein would require the granting of the motion for reconsideration in this case.

Motion for reconsideration denied.


text:
    A91A1365.
    HUDSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (411 SE2d 291)
   Birdsong, Presiding Judge.

Plaintiff appeals from a defendant’s verdict in this suit, arising from an auto accident, and brought against defendant for statutory penalty for failure to pay medical bills within 30 days of submittal under OCGA § 33-34-6. Held-.

1. Appellant contends the jury could not properly render a verdict for State Farm, and he was entitled to directed verdict and judgment n.o.v., because the undisputed evidence showed that of 11 items submitted to State Farm for payment, two bills were not fully paid, leaving $251.05 which was never paid, so that as a matter of law under OCGA § 33-34-6, State Farm “shall be liable for a penalty not exceeding 25 percent of the amount due and reasonable attorney’s fees.”

The evidence shows plaintiff contends he sustained more than $89,000 in medical expenses, including treatment for alcohol abuse; that he was eligible under his policy for coverage limits of $35,000, and that these limits were paid to appellant 11 months before he filed suit for late payment. OCGA § 33-34-6 provides: “If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within thirty (30) days after proof is received by the insurer.” (Emphasis supplied.) The issue is one of reasonable cause for the insurer’s failure to pay the claims within 30 days. Binns v. MARTA, 250 Ga. 847 (301 SE2d 877). On appeal of a jury verdict, all evidence is construed in favor of the verdict (Barnette v. Peace, 196 Ga. App. 440, 442 (395 SE2d 916)); since the jury found appellee not liable as to the claim of overdue payments, it must be inferred that it was found the amounts not paid within 30 days were not “supported by reasonable proof” (§ 33-34-6 (b)), or that the defendant had reasonable cause for not paying the bills within 30 days. There was evidence supporting the verdict for the defendant; therefore it cannot be said the evidence demanded a verdict for the plaintiff so as to entitle him to a directed verdict or to judgment n.o.v. Mullinax v. Doughtie, 196 Ga. App. 747, 748 (396 SE2d 919). The jury, by finding appellee not liable for a penalty, concluded no payments were “overdue” within the meaning of the statute, so we need not determine whether, if any payments had been found “overdue,” the statute would render State Farm absolutely “liable” to pay the penalty, or merely “subject to” liability for a penalty, as appellee contends.

2. The trial court did not err in prohibiting plaintiffs in closing argument from introducing “blowup” depictions of OCGA § 33-34-6. See Groover v. Dickey, 173 Ga. App. 73, 76 (325 SE2d 617). The jury was properly charged as to the law and presumably based its verdict on the law; if appellant means to suggest the jury would have come to a different conclusion about the law by viewing appellant’s visual aids, such visual aids would be improper by definition and misleading on their face.

3. The trial court did not err in refusing to allow a witness to testify to the defendant’s “worldly circumstances,” pursuant to former OCGA § 51-12-6. The language as to “worldly circumstances” was removed from that Code section, effective July 1987. The language has no application here, since this injury occurred in December 1987. Even if the former Code section were controlling, this is not a case where the entire injury claimed was to plaintiff’s peace, happiness and feelings (see Collins v. State Farm &c. Ins. Co., 197 Ga. App. 309, 310 (398 SE2d 207)) and defendant’s worldly circumstances were irrelevant. See Stepperson, Inc. v. Long, 256 Ga. 838 (353 SE2d 461). Moreover, since the jury declined to make an award based on the statutory penalty for “overdue” payment of PIP insurance payments, thereby rendering a defendant’s verdict as to liability, any evidence as to defendant’s worldly circumstances is irrelevant and its lack could not have prejudiced plaintiff.

4. The trial court did not err in granting defendant’s motion in limine, thereby excluding expert testimony of an insurance executive by which plaintiff sought to show that State Farm did not properly process plaintiff’s claims. Plaintiff’s claim for a penalty under OCGA § 33-34-6 is not resolved by a determination whether the insurer handled the claim properly, but whether the insurer had “reasonable cause” in failing to pay the claim within 30 days (Binns, supra), or whether the claims were “supported by reasonable proof” according to the words of the statute. See OCGA § 33-34-6 (b). The question of “reasonable cause” or whether the claims were “supported by reasonable proof,” addresses itself to the reasonableness of the claim, not the reasonableness of defendant’s handling of the claim. Proof that defendant did not “handle the claims properly” would not prove an entitlement to a penalty under § 33-34-6, and would tend to confuse the question of the “reasonable proof” of the claim or “reasonable cause” for defendant’s failure to pay within 30 days, according to OCGA § 33-34-6. Appellant Hudson does not persuade us in this case that the evidence of the insurance executive which he contends would show the claims were handled improperly would tend to show the claims were reasonable or the insurer had reasonable cause (Binns, supra) to delay payment, which is the inquiry of the jury.

Judgment affirmed.

Cooper, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I cannot concur with the statement in Division 4 of the opinion that whether the insurer handled plaintiff’s claim properly is not an issue in determining whether the insurer is liable for a penalty for late payment of the claim. Failure to exercise reasonable diligence to process and verify a claim is evidence that the insurer’s failure to pay the claim in the statutorily mandated time was in bad faith. See Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606 (359 SE2d 399) (1987). Both the reasonableness of the proof submitted by the claimant and the insurer’s diligence in handling the claim are issues relevant to an action for bad faith penalties.

Decided September 9, 1991

Reconsideration denied September 30, 1991

Stokes & Associates, Fred J. Stokes, for appellant.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.

I agree, however, that no error is shown by the trial court’s exclusion of testimony which plaintiff argues would have shown the defendant did not properly process plaintiff’s claims. First, a careful reading of the transcript reveals that the trial court did not expressly rule on that portion of defendant’s motion in limine which related to testimony concerning the processing of plaintiff’s claim. “Where there is nothing in the record to support the contention of error, there is nothing presented to this court for review.” Williams v. Lemon, 194 Ga. App. 249, 252 (3) (390 SE2d 89) (1990). The trial court indicated its willingness to permit plaintiff to perfect the record by presenting the testimony at issue at any time in the proceedings. No offer of proof was made, however, and, again, no error is presented for this court to review. See Clayton County Water Auth. v. Harbin, 192 Ga. App. 257 (2) (384 SE2d 453) (1989); Money v. Daniel, 188 Ga. App. 215 (3) (372 SE2d 305) (1988).


author: Beasley, Judge.

text:
    A91A0819.
    BAINES v. THE STATE.
    (411 SE2d 95)
   Beasley, Judge.

In this case of armed robbery, OCGA § 16-8-41, the evidence showed that appellant entered a Majik Market at approximately 1:00 a.m., on August 10, 1989, and forced the cashier, at gunpoint, to give him money. The cashier gave him $100, consisting of ten rolls of quarters. After the appellant left, the cashier immediately called the police, to whom he described the robber. A customer driving to the Majik Market observed a white pickup truck exiting the parking lot in a hurried manner with its lights turned off, and this was also communicated to the police. A white pickup truck was stopped by the police within a couple of miles of the store. Appellant was driving the truck, and Billy Rose White was a passenger. A handgun and a roll of quarters were found in the truck. Appellant was taken back to the Majik Market in a patrol car, and the cashier positively identified him

as the robber approximately 20 minutes after the robbery had occurred.

White gave a statement to the police implicating appellant. They appeared for a joint trial, but the trial court ruled that White’s statement to the police was inadmissible, and a nolle prosequi was entered against White.

1. The trial court denied the motion for new trial, rejecting the ground of ineffective assistance of trial counsel.

In asserting an ineffective-assistance claim under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), defendant must make two showings: that counsel’s performance was deficient; that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985); Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988).

(a) Appellant’s primary complaint concerns counsel’s failure to use a statement by former co-defendant White that Baines left the handgun in the truck before going into the market and did not use it in perpetrating the robbery. If this were so, only the lesser-included offense of robbery by intimidation would have occurred. OCGA § 16-8-41 (a). Armed robbery, unlike robbery by intimidation, draws a mandatory minimum sentence of five years’ imprisonment, without eligibility for parole. OCGA § 16-8-41 (b).

Baines urges a demonstration of ineffectiveness in counsel’s failure to use White’s statement for mitigation of punishment. The court imposed a sentence of seven years’ imprisonment, noting that Baines was a first offender, had received an honorable discharge from the military, and had obtained a G. E. D. This same judge, knowing whether White’s statement would have affected the choice of sentence, found that counsel was not ineffective. We cannot say that this finding was “clearly erroneous.” Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

(b) Baines also complains of counsel’s failure to use White’s statement in the guilt-innocence phase of trial, in order to challenge the credibility of the cashier’s testimony that Baines was the robber and used a gun.

At the hearing on the motion for new trial, counsel testified that he was aware of this statement and, in consultation with appellant, chose not to use it. The strategy selected was to require the State to prove beyond a reasonable doubt that appellant was in fact the person who had committed the robbery, rather than to introduce this statement and thereby admit appellant’s participation in the crime. Baines hoped to be found not guilty altogether, for lack of identification beyond a reasonable doubt. Use of this statement, moreover, would only have authorized, but not compelled or assured, a conviction of the lesser crime. Counsel testified that once the charges against the co-defendant were dismissed, there would be no statement by him implicating appellant because it had not been produced to the co-defendant; that the only solid piece of evidence against appellant was the roll of quarters; and that the descriptions of the vehicle, the weapon, and appellant were vague, questionable, and subject to challenge. Counsel also did not want to lose the right to closing argument by calling the accomplice as a witness.

As to the performance inquiry under Strickland, the question is “whether counsel’s assistance was reasonable considering all the circumstances.” In measuring this assistance, “[e]very effort must be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel’s perspective at the time; . . . counsel is entitled to a ‘strong presumption’ (which the defendant must overcome) that counsel’s conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment.” Smith v. Francis, supra at 783, citing Strickland.

Appellant has not overcome this presumption.

(c) Other contended omissions on trial counsel’s part are: he did not attend the preliminary hearing (he was not retained to represent appellant until after the preliminary hearing). He did not interview State’s witnesses or obtain copies of their statements (he testified that he had been made privy to this information and was aware of what they had said). He did not file a Brady motion or other pretrial motions. He failed to call character witnesses. His statements in closing argument — that although the police testified as truthfully as they could, the State had not proved its case — were tactically unwise.

The latter two complaints again challenge the exercise of counsel’s professional judgment in defending the case. His decisions were not unreasonable as a matter of law. The remaining complaints failed to evoke prejudice. “Concerning the prejudice component the [of Strickland], the Court held that defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ...” Smith v. Francis, supra at 783.

The view expressed in Gates v. Zant, 863 F2d 1492, 1498 (6) (11th Cir. 1989), citing Strickland, is pertinent here: “[g]iven the finite resources of time and money that face a defense attorney, it simply is not realistic to expect counsel to investigate substantially all plausible lines of defense. A reasonably competent attorney often must rely on his own experience and judgment, without the benefit of a substantial investigation, when deciding whether or not to forgo a particular line of defense. Consequently, counsel has rendered effective assistance even though he decided not to pursue a particular line of defense without substantial investigation so long as the decision was reasonable under the circumstances.” (Emphasis in original.)

2. The next question is whether the State’s failure to provide the defense with White’s statement that Baines did not have a gun when he entered the store violated appellant’s right to a fair trial under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), and United States v. Agurs, 427 U. S. 97 (96 SC 2392, 49 LE2d 342) (1976). The Brady rule involves the discovery after trial of information unknown to the defense. Ross v. State, 254 Ga. 22, 30 (4c) (326 SE2d 194) (1985). This information was known to the defense.

3. The trial court did not err by failing to instruct the jury on circumstantial evidence under OCGA § 24-4-6 because direct evidence of guilt obviated the requirement of such a charge. See, e.g., Terrell v. State, 258 Ga. 722 (3) (373 SE2d 751) (1988). Also contrary to Baines’ argument, the charge accurately defined the standard of reasonable doubt under Georgia law. See Johnson v. Zant, 249 Ga. 812, 818-819 (9) (295 SE2d 63) (1982).

4. Baines challenges the introduction of the cashier’s identification of him, since single-suspect showups are inherently suspect.

Although the practice of showing suspects singly to a witness for identification purposes has been widely condemned, Daniel v. State, 150 Ga. App. 798 (1) (258 SE2d 604) (1979), “our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. [Cits.]” Arnold v. State, 155 Ga. App. 782 (1) (272 SE2d 751) (1980). The showup of Baines was reasonably and fairly conducted and did not give rise to a likelihood of misidentification. See McCounly v. State, 191 Ga. App. 266 (2) (381 SE2d 552) (1989). As stated in Coleman v. Alabama, 399 U. S. 1, 5 (90 SC 1999, 26 LE2d 387) (1970), the primary evil to be avoided is the “ ‘substantial likelihood of irreparable misidentification.’ Simmons v. United States [390 U. S. 377, 384 (88 SC 967, 19 LE2d 1247) (1968)].”

5. The trial court’s refusal to require White’s presence at the hearing on the motion for new trial is enumerated as error.

Baines petitioned the trial court to certify that White, located in Arizona, was a material witness at the hearing and to recommend that he be taken into custody and delivered to an officer of this state in order to assure his attendance at such hearing. See OCGA § 24-10-94, part of the Uniform Act to Secure the Attendance of Witnesses From Without the State.

For reasons previously stated, White was not a necessary and material witness, and the trial court did not err in refusing to issue a certificate for his production. As discussed in Mafnas v. State, 149 Ga. App. 286 (1) (254 SE2d 409) (1979), a defendant does not have a right to such a witness and must show that the witness is necessary and material.

Decided September 30, 1991.

Alice C. Stewart, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, J. Richard Edwards, Nancy I. Jordan, Assistant District Attorneys, for appellee.

6. Appellant’s final contention, that the evidence is insufficient to support the verdict, is rejected upon application of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Carley, P. J., concur.


author: Cooper, Judge.

text:
    A91A0922.
    LOGGINS v. MITCHELL.
    (411 SE2d 98)
   Cooper, Judge.

Appellee brought suit against appellant d/b/a Ackworth Miniwarehouses for the alleged conversion of items stored by appellee in a storage bin owned by appellant. Appellant answered and filed a third-party complaint against Barbara Allen (“Allen”) for indemnification. The case was tried before a jury, which returned a verdict in favor of appellee in the amount of $25,000 on the main claim and $25,000 in favor of appellant on the third-party complaint. Judgment was entered on the verdict, and this appeal followed the trial court’s denial of appellant’s motion for judgment n.o.v. or alternatively, for a new trial.

The record reveals that appellee entered into a contract with Ackworth Miniwarehouses for the storage of several items of personal property in 1984. The following year appellee went to get a lawnmower from the storage bin and noticed that the locks had been changed, and his property was missing. He later learned that upon a mistaken belief that rental payments on the bin were past due, the manager of the facility, Vicki Asano (“Asano”), sold the contents of the bin to Allen for $150. Asano could not recall the specific items sold to Allen, and Allen did not appear at the trial.

1. Appellant contends appellee failed to prove his measure of damages in that only replacement cost of the items was offered as a basis for appellee’s opinion as to the value of each item. At trial, appellee testified that the missing items were accumulated over a period of approximately 35 years. Relying on various retail catalogs, he prepared a list of the items and assigned current values to each, which was stipulated to by the parties at trial “for purposes of proving the items and the value as testified to.” The 16-page list included household items, tools, camping equipment, clothing, appliances and personal items which appellee valued at $35,621.28. Appellant contends that appellee’s testimony alone was not sufficient to establish the value of the property because appellee did not state reasons for the values assessed.

“[T]he measure of damages where property has been converted is its market value at the time of the conversion.” Park v. Swann, 20 Ga. App. 39 (3) (92 SE 398) (1917). One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.’ [Cit.] However, ‘mere ownership of property does not authorize the owner to testify as to its value without giving facts on which he bases his opinion. However, a showing that the witness had some knowledge, experience or familiarity as to the value of the item is the requisite foundation.’ [Cit.]” White v. Miller, 194 Ga. App. 816, 817 (392 SE2d 30) (1990). Here, the stipulation relieved appellee of an item by item analysis of the missing property. Appellee’s testimony revealed that he had been buying such items since he was 15 years old and that the values assigned to each item were not merely replacement costs but his opinion of what they were worth at the time they were removed from the bin. Moreover, (a)s to everyday objects . . ., (the jurors) may draw from their own experience in forming estimates of market value.’ [Cit.]” White, supra at 817. “The items involved in this case were of a relatively common nature, so that the jury was not limited to consideration of . . . opinion testimony in forming its own opinion of the property’s market value, cits. Accordingly, even though [appellee] did not offer [specific reasons for the values assigned to each item], the jury was authorized to make its own assessment from the evidence of [market value].” Atlanta &c. Bldrs. v. Polinsky, 148 Ga. App. 181 (1) (250 SE2d 781) (1978).

2. Appellant also contends the trial court erred in failing to grant a continuance due to Barbara Allen’s absence at the trial. OCGA § 9-10-167 (a) provides that “[a]ll applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.” Appellant requested a delay of one term of court to locate Allen and argues that Allen’s testimony was essential to establish what items were purchased for $150 and to illustrate the disparity between the $150 figure and the $35,621.28 prayed for by appellee. While this might very well be true, the record reveals the case had been pending for five years, that it was stipulated to the trial calendar on June 2, 1990, for trial on July 16, 1990; that appellant’s investigators began looking for Allen on July 13, 1990; that efforts to locate Allen before the trial were unsuccessful; that after the trial, Allen was summoned to a post-judgment deposition by service on a friend at a residence where Allen purportedly lived; and that Allen failed to appear at the post-judgment deposition on September 6, 1990. In light of the fact that the record does not reflect that appellant has knowledge of Allen’s whereabouts even as of this date, we find no abuse of discretion in the trial court’s denial of the motion for a continuance.

Decided September 30, 1991.

Bovis, Kyle & Burch, Charles M. McDaniel, Jr., for appellant.

Edward W. McCrimmon, for appellee.

3. Appellee’s request for attorney fees for frivolous appeal is denied.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A0987.
    TILLEY v. THE STATE.
    (411 SE2d 100)
   Sognier, Chief Judge.

Frederick James Tilley was indicted on a charge of armed robbery of a Laurens County bank. After presentation of the evidence the trial court reduced the charge to robbery by intimidation, and the jury convicted Tilley of that charge. He appeals.

1. Appellant contends the trial court erred by refusing to allow him to absent himself from the courtroom during the trial. In Lewis v. State, 164 Ga. App. 549 (297 SE2d 303) (1982), we held that a criminal defendant’s constitutional right to be present at trial does not include a concomitant right of absence, and that the trial court is empowered to order a criminal defendant’s personal appearance when it is necessary to properly conduct the trial. Id. at 550 (1). This is especially true where, as here, identification of the defendant by a witness is contemplated by the prosecution. Id.

Appellant argues he should have been allowed to leave the courtroom because he and his counsel were the only black men in the courtroom, thereby tainting the eyewitness identification. The transcript reveals that of the three witnesses' presented by the State who saw the robber, only Dawn Busbin, the teller who was robbed, was able positively to identify appellant as the man who committed the robbery. As to her identification, the transcript reveals that Busbin had ample opportunity to see appellant at the scene of the crime, and that she particularly noted appellant’s eyes; that appellant fit her description; and that there were no impermissibly suggestive pre-trial identification procedures involved in the case. Under these circumstances, “[t]he in-court identification based upon the victim’s view of defendant at the scene of the crime was not impermissibly tainted solely because the appellant sat at the defendant’s table and was [one of only two] black male[s] in the courtroom. [Cits.]” Manning v. State, 162 Ga. App. 494 (1) (292 SE2d 95) (1982).

Decided September 30, 1991.

Larsen & Flanders, H. Gibbs Flanders, Jr., Tyson Blue, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.

2. It is well established that all circumstances connected with a defendant’s arrest are considered proper evidence to be submitted to the jury. Cargill v. State, 255 Ga. 616, 640 (25) (340 SE2d 891) (1986). Accordingly, we find no error in the trial court’s admission of the testimony of Officer Gene Nipper of the Waycross Police Department regarding the facts surrounding appellant’s arrest. Id. The fact that Nipper’s testimony may incidentally have intimated appellant’s participation in other crimes does not render his testimony inadmissible. Frazier v. State, 150 Ga. App. 343 (1) (258 SE2d 29) (1979).

3. Under State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354) (1976), it is not error for a trial court to charge the jury on a lesser included offense. Accordingly, we find no error in the trial court’s charge here on robbery by intimidation, a lesser included offense to armed robbery. OCGA § 16-8-41 (a). Furthermore, the transcript reveals appellant’s counsel expressly requested such a charge. See generally Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).

Judgment affirmed.

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


text:
    A91A1021.
    FITZGERALD v. THE STATE.
    (411 SE2d 102)
   Cooper, Judge.

Appellant appeals from his conviction by a jury of simple battery.

The evidence adduced at trial and at a hearing on several pretrial motions reveals that the victim, who was shopping at a K-Mart with her children, first noticed appellant standing in the checkout line behind her. When the victim exited the store and walked out into the parking lot, she saw appellant standing on the sidewalk next to the store building with a camcorder to his eye. The victim stated that appellant was moving such that she assumed he was filming into the parking lot. The victim and her children walked on to their van and did not turn around to observe appellant. The victim let her children into the van on the passenger side, shut the door and walked around the back of the van. She was unlocking the driver’s door of the van when she felt something brush against her leg, on the back of her thigh. The victim turned around to see appellant standing three or four feet behind her holding a camcorder, and the victim stated at that point she knew that appellant was trying to film under her dress although she could not remember the exact position of the camcorder when she faced appellant. As the victim confronted appellant, he began walking very fast across the parking lot. The victim , yelled after him to stop, and appellant then turned around and began coming back toward the victim at which point the victim obtained the assistance of someone else who was in the parking lot. Appellant denied the victim’s charges, they all went inside to K-Mart security and the police were called to the scene. Appellant kept the camera in his possession until the victim requested K-Mart security to take it from him. The victim testified that he was pushing buttons and fiddling with the camera until it was taken away. The camcorder and the tape inside were admitted as evidence. The tape contained several segments — first, it showed innocent home movies with teenagers; then it showed pictures of women in bathing suits and nude pictures of women, focusing on the breast and crotch areas of the subjects; followed by X-rated tapes with no sound; and toward the end of the tape was a black part followed by the conversation of persons in K-Mart who were looking at the tape and the camera. After appellant’s arrest, the police impounded his car which was parked in the K-Mart lot, and performed an inventory search. The search yielded several pieces of new, expensive camera equipment. The officer who performed the search stated that the arresting officer told him to impound and inventory the car because K-Mart security wanted the vehicle off K-Mart property. The officer also stated that it was his department’s policy to impound a vehicle if the owner of the car is arrested and if the owner of the property requests the removal of the vehicle. He further testified that any expensive equipment found inside a vehicle is taken out of the vehicle to safeguard it from being stolen. A K-Mart security employee testified that he asked the police to remove the car from the parking lot to avoid responsibility on the part of K-Mart. At trial, appellant denied the victim’s charges and contended that he approached the area of the victim’s van from a different direction than described by the victim. He denied that he ever touched the victim or that he attempted to place the camcorder up her dress.

1. Appellant first enumerates as error the denial of his motion for a directed verdict on the grounds that the only evidence of appellant actually touching the victim is circumstantial. “ ‘ “(T)o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” [Cit.] . . . [Cit.]’ . . . ‘Questions of reasonableness are generally decided by the jury, and this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.’ [Cit.]” Hicks v. State, 195 Ga. App. 887 (1) (395 SE2d 341) (1990). “ ‘(A) defendant is entitled to a directed verdict “(w)here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” [Cit.]’ [Cit.]” Leonard v. State, 197 Ga. App. 221 (3) (398 SE2d 250) (1990). The evidence of appellant’s guilt adduced at trial, even though circumstantial, did not demand a directed verdict. The jury judged the credibility of the witnesses and weighed the evidence and its verdict is supported by the evidence. The denial of the directed verdict was not in error.

2. Appellant next asserts that the trial court erred in allowing the State to introduce the application for the arrest warrant signed by the victim. The application stated that the appellant’s camcorder brushed the victim’s dress, while the warrant itself stated that the appellant placed a camcorder up the back of the victim’s dress. Defense counsel cross-examined the victim on the warrant and had the warrant marked as a defense exhibit but did not introduce the warrant into evidence. On redirect, the State introduced the warrant and the application into evidence. The court admitted the warrant and the application but did not allow the documents to go into the jury room. “ ‘ “The rule of evidence is, that when an admission, conversation or declaration previously made by a party or a witness is pertinent, the side tendering evidence as to the same is at liberty to prove such portion only thereof as is deemed material, and the other side may then bring out the whole of the admission, conversation or declaration, so far as so doing may be essential in order to arrive at the true drift, intent and meaning of what was said on the previous occasion. (Cit.)” (Cit.)’ [Cit.]” Thomas v. State, 196 Ga. App. 88 (2) (395 SE2d 615) (1990). The application and the warrant, while worded differently, are not inconsistent and together constitute the victim’s declaration of what occurred. Once the warrant had been raised on cross-examination, the State was allowed to introduce the application and the warrant to fully disclose the substance of the victim’s statement. See Peacock v. State, 170 Ga. App. 309, 312 (316 SE2d 864) (1984).

3. In his third enumeration, appellant argues that the court erred by failing to suppress the evidence seized by the police during the inventory search of appellant’s car. “ ‘(Appellant) contests the search of the (car) and the seizure of [the camera equipment] by attacking the underlying validity of the impoundment of his automobile. The justification for the inventory search is necessarily premised on the validity of the impounding. . . . The argument that an automobile must be an impediment to traffic before it can be lawfully impounded has been rejected. [Cit.] It is well established that a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that. [Cit.]’ [Cit.]” Pierce v. State, 194 Ga. App. 481 (1) (391 SE2d 3) (1990). Considering the circumstances of appellant’s arrest, K-Mart’s request to the police to remove the car and the police department’s policy regarding the removal of property for safekeeping, “ ‘the trial court’s finding that the impoundment of [appellant’s] car was lawful is supported by the evidence and will not be disturbed on appeal.’ [Cits.]” Pierce, supra at 482. This case can be distinguished from Dunkum v. State, 138 Ga. App. 321 (9) (226 SE2d 133) (1976) in that K-Mart, the owner of the property on which the car was parked, affirmatively requested the police to remove the car.

Decided September 30, 1991.

Michael G. Schlosberg, for appellant.

Patrick H. Head, Solicitor, Beverly M. Collins, Phillip M. Gold-stein, Assistant Solicitors, for appellee.

4. Appellant’s final enumeration states that the court erred in allowing the tape from the camcorder to be played to the jury because it was prejudicial and placed the character of appellant in issue. We disagree. “ ‘ “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. . . .” (Cits.)’ [Cit.] ‘The fact that such part of the res gestae incidentally placed (appellant’s) character in issue does not render it inadmissible. (Cits.)’ [Cit.]” Miller v. State, 197 Ga. App. 691 (2) (399 SE2d 281) (1990). The trial court did not err in concluding that the contents of the tape were admissible as part of the res gestae of the entire occurrence. Further, the portion of the tape alleged to be prejudicial was sufficiently similar to the subject matter allegedly filmed in the instant case as to render it “relevant to motive, intent and course of conduct and was not rendered inadmissible because it incidentally placed appellant’s character in issue. [Cit.]” Millis v. State, 196 Ga. App. 799 (1) (397 SE2d 71) (1990). Appellant’s enumeration is without merit.

Judgment affirmed.

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


text:
    A91A1039.
    WILLIS v. THE STATE.
    (410 SE2d 827)
   Sognier, Chief Judge.

Durwood Flurry Willis III was indicted on three counts of child molestation. The trial court granted his motion to sever the three counts for trial. The jury found Willis guilty of count three, and he appeals.

1. Appellant enumerates the general grounds. At trial, the State adduced evidence that the seven-year-old victim and her family were attending a fish fry held by appellant at his place of business. Clarence King testified that he saw appellant holding the victim’s hand behind a store next to appellant’s business; that the victim was tugging at her pants and was shaking; and that the victim caught his hand as soon as she came near him. Pursuant to the Child Hearsay Statute, OCGA § 24-3-16, the victim’s mother testified that when she left the fish fry to buy beer the victim was playing pinball with appellant, and that upon her return, the victim, who was pale and shaking, came running to her while holding King’s hand and trying to fasten her unzipped pants. The victim told her mother that appellant had put his hands on her vagina and breasts. The victim then began screaming and crying in fear, due to threats appellant had made that he would kill her and her family if she told about the molestation. A police sergeant and the nurse who examined the victim both testified that the victim had stated that appellant had unzipped her pants and put his finger “inside of her.” On cross-examination the nurse testified that the doctor who examined the victim found some redness and irritation around the victim’s genitals.

We find there was sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Boynton v. State, 197 Ga. App. 149, 151 (2) (397 SE2d 615) (1990).

2. Appellant enumerates as error the admission as a similar crime or transaction of testimony by Julia Rhodus that appellant had molested her 11 years earlier. Rhodus testified that appellant was her stepfather from 1976 to 1989; that he forced her to submit to almost daily sexual intercourse for a nine month period in 1979-1980, when she was 10 to 11 years old, until she went to live with her father; and that appellant threatened to kill her, her mother, and her brother if she told anyone about the molestation.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct outweighs its prejudicial impact. However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” (Citations and punctuation omitted.) Leonard v. State, 197 Ga. App. 221, 223 (2) (398 SE2d 250) (1990). Rhodus’ testimony that appellant was the person who molested her satisfied the first condition. As to the second condition, “[t]he sexual abuse of young children, regardless of the . . . type of acts (or other conduct) perpetrated upon them, is of sufficient similarity to make the evidence admissible. Moreover, the exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” (Citations and punctuation omitted.) Boynton, supra at 150 (1). Mere lapse of time between the commission of any prior similar crimes and the commission of offenses currently at trial does not render the evidence automatically inadmissible. Leonard, supra at 223 (2). We find no error in the admission of this testimony. See Cox v. State, 173 Ga. App. 422-423 (1) (326 SE2d 796) (1985).

Decided September 30, 1991.

Donald E. Strickland, for appellant.

3. Appellant contends the trial court erred by denying his motion for a mistrial based on a response by Rhodus to a question posed to her by defense counsel on cross-examination. Defense counsel stated, “[y]ou [Rhodus] further mentioned [on direct] that you didn’t want what happened to you to happen to anybody else. That to me indicates that you might know something about this case. Do you know anything about this case?” Rhodus responded, “I know that he is on charges of molestation of other children.” Following this answer and appellant’s motion for mistrial, the trial court stated it would give whatever curative instructions appellant wanted, but no instructions were given because defense counsel indicated appellant would continue with his motion anyway and because the trial court did not want to impress the matter on the jury.

A review of the trial transcript thus establishes that the answer at issue was elicited by defense counsel’s question to the witness. “Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. [Cit.] Furthermore, the decision of whether to grant a mistrial is within the sound discretion of the trial court and [its] ruling will not be disturbed absent an abuse of discretion. [Cit.]” Buxton v. State, 253 Ga. 137, 139 (3) (317 SE2d 538) (1984). Under these circumstances we find no abuse of discretion. The trial court did not err by denying appellant’s motion for a mistrial.

Judgment affirmed.

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

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.


text:
    A91A1046.
    MORRISON et al. v. KOORNICK et al.
    (411 SE2d 105)
   Beasley, Judge.

This wrongful death action stems from allegations of medical negligence. Edna M. Morrison, individually and as widow and executrix of the estate of her late husband, Harold M. Morrison, and the deceased’s son, Michael Morrison, individually, appeal the judgment entered on the jury’s verdict in favor of defendants vascular surgeon Koornick, radiologist Soder, and Soder’s professional corporation, Atlanta Radiology Consultants. Defendant orthopedic surgeon Hecht is not a party on appeal because settlement was reached with him during trial.

Sixty-nine-year-old Harold Morrison was experiencing back pain and consulted Dr. Hecht. Hecht determined that Morrison had a herniated spinal disc. After conservative treatment proved unsuccessful, surgery for a lumbar laminectomy, i.e., disc removal, was scheduled. Such surgical procedure has a mortality rate of less than one percent.

On August 3, 1987, Hecht operated on Morrison. As Hecht was nearing the end of removal of the defective disc, the doctor noticed a flash of bright red blood in the operative site. The bleeding initially was profuse, approximately 200 cc’s. Suspecting that some blood vessel or possibly the aorta, the body’s major arterial trunk, had been injured, Hecht temporarily packed the area of bleeding and sent for aid from Koornick, who was assisting in another operation.

Hecht related his concerns to Koornick and related what had happened. The wound’s temporary packing was removed and Koornick observed the incision site for approximately 20 minutes and did not see additional active bleeding. Even though no further bleeding was apparent, Koornick believed that an aortic injury was possible. Koornick inquired about Morrison’s medical history and learned that the patient had polycystic kidney disease with reduced renal function and had had prior surgery for partial removal of the colon. The decision was made to repack the incision with gel foam material and to close. Koornick ordered that Morrison undergo a CT scan, a radiological procedure.

Later that evening, Morrison underwent the CT scan with Koornick present. Radiologist Cox, Soder’s colleague and a member of Atlanta Radiology Consultants, P.C., interpreted the test and discussed the results with Koornick. It was Cox’s opinion that the aorta was not injured. Cox entered his findings on the hospital chart, primarily stating: “Aorta appears intact.” Koornick decided not to operate but to wait. Morrison was taken to the intensive care unit.

The next day, a repeat CT scan was performed. Dr. Soder examined the second scan as well as the one from the previous evening. As to the original study and in contrast to Cox’s assessment, Soder concluded: “There appears to be a bleed from the abdominal aorta extending to the right and up along the gutter medial to the liver and around the kidney and down to the level of the bifurcation.” As to the second CT scan, Soder concluded that the hematoma extended farther caudally but that it was uncertain whether this represented further bleeding or merely redistribution of the blood already present. Soder’s conclusions were recorded in two separate typed reports. Koornick did not hear about or see Soder’s findings at that time.

The original bleeding from Morrison’s aorta had run off into the body’s tissue planes causing a tamponade effect which temporarily blocked further bleeding. Morrison remained under observation and was transferred out of the intensive care unit. On August 7, the tamponade effect gave way and major bleeding from the aorta ensued. A third CT scan confirmed the hemorrhage. Koornick operated on Morrison to repair what was found to be a 0.5 centimeter hole in the aorta. Morrison lost ten of the fourteen units of the body’s total blood volume. Following the surgery, Morrison remained hospitalized and his condition deteriorated over a period of five weeks, culminating in his death.

1. Appellants contend that the trial court erred in allowing Soder and Atlanta Radiology Consultants, P.C. to cross-examine over objection appellant’s expert, vascular surgeon Stanton, on medical records not in evidence before the court.

The testimony of Dr. Stanton was presented during plaintiffs’ case-in-chief via a videotape made the preceding evening after the court adjourned trial early so that counsel for the parties could fly out of state to take Stanton’s deposition.

The subject exchange was the following. Counsel for Dr. Soder and the professional corporation: “Now, my understanding after — you have had a chance to review the deposition transcripts of both Dr. Koornick, Dr. Hecht, and Dr. Perry Soder, and Dr. George Cox, as well as the medical record at St. Joseph’s Hospital from the time Mr. Morrison was admitted until the August 7th of 1987 surgery, correct?” Stanton: “That’s right.” Counsel: “And you devoted some attention to reading each of those items, true?” Stanton: “Yes, I did.” Counsel: “And in your opinion the care rendered by both Dr. Soder and Dr. Cox does not rise to the level of being a deviation from that degree of care and skill accepted in the medical professional (sic) generally; isn’t that true?” Stanton: “That’s true.” Counsel: “Put in lay terms, you don’t believe that either one of them were negligent, do you?” Stanton: “No, I don’t.”

The trial court had just ruled on the very same objection raised by defendant Koornick’s counsel as to the basis of the expert’s opinion as elicited by plaintiffs’ counsel. In that instance, the court sustained the objection, whereas the court overruled plaintiffs’ objection made on the same ground when it related to the cross-examination of their expert witness. Whether plaintiffs’ objection could have been obviated at the taking of the deposition the night before is thus not dispositive, as all parties and the court considered all objections as having been reserved. Moreover, to require plaintiffs to have objected at the deposition on a ground which applied equally to their own evidence, see OCGA § 9-11-32 (d) (3) (A), would force them into an inconsistent position and serve no useful purpose.

This case differs significantly from the situation in Andean Mtr. Co. v. Mulkey, 251 Ga. 32 (1) (302 SE2d 550) (1983). There the objection, relating to the witness’ competence to testify as an expert, was the objection of only one side and the deficiency existing at the time of deposition could easily have been remedied by fuller testimony.

On the merits, “[generally, an expert’s opinion cannot be stated upon facts or reports which are not admitted in evidence. OCGA § 24-9-67; [cit.]. Thus, in the realm of expert medical testimony it is said: ‘Opinion testimony based merely upon records and case history furnished the witness by other doctors and not a part of the evidence in the case is objectionable.’ [Cit.]” Andrews v. Major, 180 Ga. App. 393, 395 (2) (349 SE2d 225) (1986). However, in this case the critical medical records at issue were not outside the evidence. The hospital documents with respect to the allegations of negligence against Soder and the professional corporation, i.e., Soder’s written evaluations of the first and second CT scans, were introduced as exhibits. Thus the other hospital records, which were not in evidence, were not material to the expert’s opinion.

In argument, appellants raise three additional complaints. One is that the admission of the testimony was unfair because the trial court excluded certain of their direct examination of Stanton on the same evidentiary objection. A second is that the testimony lacked competency foundation. The third is that the testimony was harmful because it created the improper impression that Stanton supported Soder’s position.

What is applicable at the threshold is that “[i]t is basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal [cit.]. . . .” Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986).

Considering the merits of the additional arguments nevertheless, they fail.

As to the first, no legal support is given.

As to the second, the claim is lack of foundation of qualifications. Although Stanton admittedly was a vascular surgeon and not a radiologist nor an orthopedist, he testified that he had a “fair amount of experience” in reading CT scans and “understanding the differences of expressed retroperitoneal bleeding.” The claimed lack of sufficient foundation for Stanton’s giving an expert opinion fails because this would go to the testimony’s weight rather than its admissibility. See, e.g., Longino v. City of Atlanta, 127 Ga. App. 299, 300 (193 SE2d 190) (1972), which applies the principle in the context of opinion as to market value of real property.

As to the third, the impact of the testimony, i.e., favorable or adverse to Soder, was for the jury to determine.

2. Appellants contend that the trial court erred in charging the jury, “It is the general law of this state that laymen, even jurors and courts, are not permitted to say what is proper medical diagnosis and treatment.” Appellants maintain that this language misstates the law and would obviate any basis for the trial of a medical negligence action in Georgia.

They argue that there are cases in which as a matter of law it is acknowledged that laymen can determine that medical treatment is negligent, the so-called “pronounced result” cases, citing Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500 (333 SE2d 884) (1985). Appellants, however, do not contend that this is a situation of “pronounced result.” At trial, they did not submit any request to charge on such theory.

The language at issue must be evaluated in the context of the charge as a whole. See Russell v. Wickes Lumber, 190 Ga. App. 16, 18 (7) (378 SE2d 148) (1989); Smaha v. Moore, 193 Ga. App. 23, 24 (387 SE2d 13) (1989). The immediately preceding portion of the instruction, which appellants acknowledge is an accurate statement of the law, was: “The care and skill applicable in performing medical services are not matters within the common knowledge or experience of jurors or lay persons. These standards are within the special knowledge of experts in the field of medicine and are to be proven only by the testimony of expert medical witnesses.”

Thus, in the context of that complete portion of the instruction, the objected-to language merely reiterates and reinforces the correct principle that the appropriate medical standard is the province of the medical expert.

Moreover, it is not misleading in the context of the court’s entire charge to the jury. Later when dealing with proximate cause there was further clarification, not objected to by appellants, that “[l]ay persons, even jurors and courts, are not permitted to set up and use any arbitrary or artificial standard or measurement they might wish to apply. The proper standard of measurement is to be established by the testimony of medical experts. For that is a medical question.”

Decided September 30, 1991.

Bennett, Williams & Henry, Michael T. Bennett, for appellants.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Brynda S. Rodriguez, Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, for appellees.

The instruction at issue, in context, is a correct statement of the law and does not usurp the province of the jury.

Judgment affirmed.

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


text:
    A91A1048.
    CLAXTON MANUFACTURING COMPANY et al. v. HODGES.
    (411 SE2d 109)
   Cooper, Judge.

Appellee was injured in the course of her employment with Claxton Manufacturing Company (“Claxton”), who at the time was insured by American Mutual Liability Insurance Company (“American”). On April 14, 1987, the Administrative Law Judge (“ALJ”) entered an award in favor of appellee, including an award of attorney fees pursuant to OCGA § 34-9-108 (b) (1) (2) (3). Approximately two years later, American was declared insolvent and the Georgia Insurers Insolvency Pool (“GIIP”) resumed the disability payments to appellee, but did not continue paying the additional amount awarded as attorney fees. The ALJ subsequently conducted a hearing at the request of Claxton for the purpose of determining a change in condition. Claimant also requested another assessment of attorney fees. In an order dated February 27, 1990, the ALJ denied the claim for a change in condition and entered an award in favor of claimant and against Claxton, American and GIIP for attorney fees in the amount of $10,000. On March 8, 1990, the ALJ amended that order and directed that the employer was to recommence paying the attorney fees awarded in the April 14, 1987, order. On appeal to the full board, the ALJ’s award was amended, deleting the February 27, 1990, $10,000 attorney fee award and directing that the employer, not GIIP, recommence payment of the assessed attorney fees awarded in the ALJ’s April 14, 1987, order. The superior court remanded the case to the full board with the direction that American be added as a responsible party for the payment of attorney fees such that the employee could elect to collect the fees against either Claxton or American. We granted Claxton and GUP’s, appellants herein, discretionary appeal to determine the employer’s liability for the attorney fees assessed by the State Board of Workers’ Compensation and affirmed by the superior court.

Decided September 30, 1991.

Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, for appellants.

The Keenan Ashman Firm, Charles R. Ashman, for appellee.

1. The substance of appellants’ first enumeration of error is that the board’s finding that Claxton was responsible for the attorney fees was contrary to law. Appellants argue that American processed the claim in an untimely manner, therefore, the award of attorney fees is only properly submitted to the liquidator of American.

Neither party argues that the award of attorney fees should be paid by GIIP. GIIP was created to provide a remedy for “covered claims” when the insurer has become insolvent. OCGA § 33-36-2. OCGA § 33-36-3 (2) (G) provides that “[a] covered claim shall not include any claim or judgment for punitive damages and attorney’s fees associated therewith against any insolvent insurer, its insured, or the insurers insolvency pool.” Although Claxton argues that the attorney fees were assessed because of the acts or omissions of American, the ALJ’s order stated that attorney fees were assessed because the “ employer /insurer” failed to pay benefits in a timely manner. Thus, the award of attorney fees was assessed against the employer and the insurer, and although the insurer is now insolvent and hence not a covered claim under OCGA § 33-36-3, we cannot conclude that the employer’s responsibility to pay the award is thereby extinguished. Accordingly, we find no error with the board’s decision that the award of attorney fees shall be paid by Claxton.

2. Appellants also contend that the trial court’s remand of the case back to the board was erroneous because it was not based on one of the statutory grounds enumerated in OCGA § 34-9-105. The only entity relieved of any responsibility for paying the award of attorney fees was GIIP. Therefore, the board’s award, which reflected that the employer was the only responsible party was contrary to law. Consequently, the superior court had the authority pursuant to OCGA § 34-9-105 (c) (5) to remand the case to the board to reflect that the award was collectible against either Claxton or American.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A91A1100.
    HURD v. THE STATE.
    (411 SE2d 111)
   Andrews, Judge.

Hurd, convicted of driving under the influence under OCGA § 40-6-391 (a), appeals the denial of his motion for new trial claiming insufficient evidence.

Viewed in favor of the verdict, the evidence was that Hurd was stopped around 8:30 p.m. at a roadblock where troopers were checking licenses. He was driving a small convertible with the top down. The officer noticed, while checking the license, the odor of alcohol. The officer asked if he had drunk any alcohol and Hurd denied it. Hurd was directed to the roadside for further inquiry. While talking to Hurd, the officer noticed a strong odor of alcohol and that his eyes were red. Hurd, according to the officer, acted like he was under the influence. An alcosensor test registered positive. His Intoximeter test registered .10 approximately 30 minutes after the stop.

Hurd testified at trial and admitted purchasing a six-pack of 16-ounce beers that evening. He drove to a lake where he drank a “couple of beers.” He was proceeding to the American Legion when he came to the roadblock.

Hurd contends the evidence is insufficient because no one saw him violate any traffic laws; he did not stagger or have slurred speech; his stepfather came to the jail around 10:00 p.m. and noticed nothing unusual about his speech or demeanor; and it was Hurd’s own opinion that he was not under the influence to the extent it was less safe for him to drive.

OCGA § 40-6-392 (b) (3) states that “[i]f there was at that time an alcohol concentration of 0.10 grams or more, it shall be presumed that the person was under the influence of alcohol, as prohibited by [OCGA § 40-6-391 (a) (1)].”

While Hurd introduced evidence which he contends rebutted the presumption, that decision was for the jury which heard and determined the credibility of the witnesses and the weight to be given the evidence. OCGA § 24-9-80; Alonso v. State, 190 Ga. App. 26, 30 (6) (378 SE2d 354) (1989). It cannot be said as a matter of law that the presumption was rebutted. See Campbell v. State, 189 Ga. App. 303, 304 (375 SE2d 654) (1988) (Beasley, J., special concurrence).

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bell v. State, 197 Ga. App. 175 (398 SE2d 29) (1990).

Judgment affirmed.

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

Decided September 30, 1991.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack 0. Partain III, District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.

       The incident and trial both occurred in 1990, prior to the 1991 amendment of this statute.


text:
    A91A1155.
    A91A1156.
    MILLER v. THE STATE. EVANS v. THE STATE.
    (411 SE2d 112)
   Andrews, Judge.

Evans and Miller were tried by a jury and convicted of hunting deer at night with the aid of a light, hunting from a motor vehicle and hunting from a public road and were sentenced to 12 months probation and a fine of $1,850.

1. In their first enumeration of error, Miller and Evans claim that the evidence was insufficient for conviction. Viewed in favor of the verdict, the evidence was that at 12:30 a.m. on September 30, 1990, Miller was driving Evans’ car at about 10 m.p.h. with Evans as a passenger, when the vehicle attracted the attention of a Georgia Department of Natural Resources ranger, Kingel. Kingel watched as the vehicle turned around in a church parking lot and retraced its path at the same slow speed. He began following the vehicle at a distance with his lights off and saw a light shining out of the passenger side of the vehicle onto the right side of the road. As the vehicle turned around a second time, to travel the same portion of the road for the third time, Miller spotted the ranger’s vehicle and began traveling very quickly, “with his engine screaming.”

At this point, Kingel followed the car and stopped Miller and Evans and asked them if they had a gun with them and if they were hunting deer. Miller and Evans said that they did not have a gun and denied that they were hunting, yet when Evans got out of the car there was a 16-gauge rifle slug shotgun shell between his legs. Kingel, who was at this point joined by a sheriff’s deputy, also observed a lantern lying on the vehicle’s floorboard and a filet knife, of the type commonly used for field dressing deer, wedged in a space near the driver’s.seat. Because of the apparent absence of a gun, the men were released.

At this point Kingel traveled the route through which he had followed Miller and Evans and found a 16-gauge shotgun lying in the ditch. The shotgun was broken in a manner which was consistent with being thrown out of a car window. The fact that there was no dew or rust on the gun and that the grass and dirt lodged in it were fresh indicated that it had been thrown in the preceding 30 minutes. Upon the discovery of the gun, Miller and Evans were arrested. After their arrest, both men denied that they had a gun, despite the presence of several shotgun shells in the car, but Evans admitted that they were “out looking for deer.”

Decided September 30, 1991.

Charles A. Thomas, Jr., for appellants.

Henry C. Head, Solicitor, for appellee.

On appeal of a criminal conviction, the appellants are “no longer indulged with the presumption of innocence, for the jury has rendered its verdict; we do not weigh the evidence or determine the witness’ credibility but construe the evidence to uphold the verdict. . . . Thus, we only determine whether the evidence is such as to enable any rational trier of fact to find the defendant guilty of the crime charged beyond a reasonable doubt, and we find so in this case. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Citations and quotations omitted.) Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). Similarly, we reject appellants’ argument that the State failed to exclude every other reasonable hypothesis save that of the guilt of the accused in this case based on circumstantial evidence. See White v. State, 253 Ga. 106 (1) (317 SE2d 196) (1984).

2. In their second enumeration of error, Miller and Evans argue for the first time here that their detention constituted an illegal arrest. “Enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) Martin v. State, 196 Ga. App. 145, 148 (4) (395 SE2d 391) (1990).

3. Finally, Miller and Evans claim that the trial court erred in overruling their motion for a mistrial after the state’s attorney whispered to a witness his personal belief as to the veracity of one of the defendants allegedly within hearing of the jury. The trial court did not hear the remark, it was not recorded, and there is nothing in the record to indicate that the jury heard the remark. Nevertheless, the jury was given curative instructions to disregard any comment from the state’s attorney. Given these facts, the trial court did not abuse its discretion in denying the motion for mistrial. Jordan v. State, 166 Ga. App. 417 (6) (304 SE2d 522) (1983); see generally Shirley v. State, 245 Ga. 616 (1) (266 SE2d 218) (1980).

Judgments affirmed.

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


text:
    A91A1192.
    ABACUS, INC. v. HEBRON BAPTIST CHURCH, INC.
    (411 SE2d 113)
   Andrews, Judge.

Abacus, Inc., brought this action against Hebron Baptist Church, Inc., to foreclose its materialman’s lien against the church’s real property. Abacus appeals from the trial court’s order granting judgment on the pleadings to the church.

“After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. [OCGA § 9-11-12 (c)]. For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted. Judgment on the pleadings may be granted only if, on the facts so admitted, the moving party is clearly entitled to judgment.” (Punctuation and citations omitted.) Christner v. Eason, 146 Ga. App. 139-140 (245 SE2d 489) (1978).

Under this standard, the pleadings establish that Abacus’s claim for construction materials sold to the contractor, and used to improve the church’s property, became due on August 22, 1988. Abacus filed its claim of lien on November 10, 1988, in Gwinnett County where the improved property is located. On August 15, 1989, within 12 months of the date the claim became due, Abacus brought suit against the contractor in Cobb County to perfect the lien. Pursuant to OCGA § 44-14-361.1, on August 30, 1989, Abacus filed notice of the suit in Gwinnett County.

In granting judgment on the pleadings, the trial court found that the lien could not be foreclosed against the church because the notice of suit was not timely filed under OCGA § 44-14-361.1. See Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438 (339 SE2d 406) (1986) (failure to timely file notice of suit renders lien unenforceable). The trial court ruled that filing the required notice in Gwinnett County 15 days after suit was required to be filed in Cobb County would have been timely. American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 (320 SE2d 857) (16-day delay between filing of suit and notice found reasonable and timely under former OCGA § 44-14-361.1, as amended by Ga. L. 1983, pp. 846, 847). The court reasoned, however, that the present notice was untimely under the statute because it was filed eight days after the 12-month period for filing suit had expired, whereas in Starline the 16-day delay was within the 12-month period.

The statute does not explicitly address this point, so we must construe the 1989 version applicable here to determine the legislature’s intent under these circumstances. State of Ga. v. Jackson, 197 Ga. App. 619, 620 (399 SE2d 88) (1990). Under the version of the statute applicable in Starline and in the present case, the notice of suit was required to be filed “at the time of filing” the suit to recover the amount due on the lien, which suit had to be filed within 12 months of the time the claim became due. However, subsequent to Starline, the legislature deleted language in OCGA § 44-14-361.1 (a) (3) regarding filing of the suit and notice which provided that: “Failure to bring action and to file the notice described in this paragraph within the time required shall extinguish the subject claim of lien and render the same unenforceable.” (Emphasis supplied.) The 1989 version of the statute contains no similar language directly linking enforceability to filing the suit and notice within the time required, and provides with respect to enforceability only that the lien “must be created and declared in accordance with the [provisions of the statute], and on failure of any of them the lien shall not be effective or enforceable.” Subsequent to the filing of the suit to collect the amount due in this action, the legislature again amended OCGA § 44-14-361.1 (Ga. L. 1991, p. 639, effective July 1, 1991) to provide that “within 14 days after filing [an action for recovery of the amount of the claimed lien], the party claiming the lien shall file notice with the clerk of the superior court of the county wherein the subject lien was filed.” The suit to collect the amount claimed due must still be filed within the same 12-month period under the 1991 amendment.

By the 1991 amendment, the legislature explicitly recognized what was construed as implicit in the former statute in Starline-, that because of the impossibility of filing the required notice in one county at the exact time suit is required to be filed in another, the statutory requirements are fulfilled by filing the notice within a reasonable time after the suit has been filed. Starline, supra at 792. The legislature has now established that, as long as the suit is filed within 12 months of the time the claim became due, the notice may be timely filed within 14 days thereafter.

In light of the above legislative evolution, we find that under the 1989 statute applicable here the legislature intended that Abacus file notice of suit within a reasonable time after the suit was timely filed, and that 15 days was a reasonable time. Accord Starline, supra. We further find that such notice was timely although filed eight days beyond the 12-month period for commencing the action. Accordingly, the trial court erred by finding the notice of suit was not timely filed, and by granting judgment on the pleadings to the church.

Judgment reversed.

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

Decided September 30, 1991.

Webb, Carlock, Copeland, Semler & Stair, R. Michael Ethridge, Rachelson & Associates, Ira L. Rachelson, for appellant.

Webb, Tanner & Powell, Anthony O. L. Powell, Andrew R. Mertz, for appellee.

       This statute has been amended several times in recent years, including an amendment which took effect on July 1, 1991. The version of the statute applicable in the present case is OCGA § 44-14-361.1, as amended by Ga. L. 1989, p. 438 (effective July 1, 1989).


text:
    A91A1229.
    BAIRD v. THE STATE.
    (411 SE2d 332)
   Sognier, Chief Judge.

Andrew Baird was convicted of escape while armed with a dangerous weapon, OCGA § 16-10-52 (b), and he appeals.

The transcript reveals that appellant, an inmate at the Oconee County Jail, joined another inmate and entered the control room of the jail wielding sections broken off a commercial broom handle (with a one to one and a half inch diameter). Larry Freeman, a jailer present during the escape, testified that while he was struggling with the other inmate, appellant, who was standing in the control room doorway, began beating on the door frame with his section of the broom handle. Appellant yelled to the guards to open the exit door or he was “going to bust” the head of a nearby guard. Freeman testified he opened the door because he thought appellant was going to hurt the other guard.

Appellant contends in his sole enumeration of error that the trial court erred by failing to give the jury any of his requests to charge on the .definition of “dangerous weapon” in conjunction with its charge on OCGA § 16-10-52 (b), which provides in pertinent part that a person “who commits the offense of escape while armed with a dangerous weapon shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than ten years.” “The rule is that when the charge embraces a section of the Code which contains technical words or expressions, the meaning of which is probably not understood by a person unlearned in the law, the court should so define them as to convey to the jury a correct idea of their meaning, but it is unnecessary for the court, even upon request, to explain words and expressions which are of ordinary understanding and self-explanatory. [Cits.]” Floyd v. State, 58 Ga. App. 867, 871 (200 SE 207) (1938). We agree with the State that the words “dangerous weapon” as used in OCGA § 16-10-52 (b) are not words of art but rather are words of common understanding and meaning which require no definition themselves for understanding by the jury. See Anderson v. State, 226 Ga. 35, 36 (2) (172 SE2d 424) (1970) (“assault”); Ricks v. State, 156 Ga. App. 647, 648 (3) (275 SE2d 730) (1980) (“offensive weapon”). Therefore, the trial court did not err by failing to give appellant’s requested charges.

Decided September 30, 1991.

Russell C. Gabriel, Albert M. Pearson III, for appellant.

Harry N. Gordon, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A1311.
    GUNTER v. HAMILTON BANK OF UPPER EAST TENNESSEE.
    (411 SE2d 115)
   Andrews, Judge.

Gunter appeals from the trial court’s order granting summary judgment to Hamilton Bank. The bank sued Gunter to collect amounts claimed due under a promissory note executed by Gunter in favor of the bank. Gunter answered denying he owed any sums under the note, and claiming failure of consideration. No discovery was conducted prior to the motion for summary judgment.

It is undisputed that Gunter executed the note by which he promised to pay the bank $40,000 in principal, plus interest and reasonable attorney fees incurred in the event of collection upon default. The supporting affidavit filed along with the bank’s motion for summary judgment on July 19, 1990, established the terms of the note and the amounts claimed to be due. After the time for response was extended by agreement, Gunter filed a timely response to the motion along with his responsive affidavit on September 14, 1990. In his affidavit, Gunter admitted executing the note and receiving a check for $40,000 made jointly payable to him and the bank, but not endorsed by the bank. He further stated that he endorsed the check, returned it to the bank, and never received any funds from the bank in consideration for the note.

With only these facts before the trial court, Gunter argues that the bank is not entitled to summary judgment because the check he received from the bank was no consideration for the note, and, in effect, he paid the note in full by returning the check to the bank. The check for $40,000, without the bank’s endorsement, and made jointly payable to Gunter and the bank, was not negotiable by Gunter alone, and conveyed no consideration. See Trammell v. Farmers &c. Bank, 170 Ga. App. 347 (317 SE2d 323) (1984); OCGA §§ 11-3-116 (b) and 11-3-202.

Apparently recognizing this problem, the bank filed a supplemental affidavit in support of its motion for summary judgment which stated that the consideration for Gunter’s execution of the note was the bank’s agreement to extend the due date on a defaulted loan it made to Gunter’s parents. At the summary judgment hearing held on November 16, 1990, Gunter objected to the bank’s supplemental affidavit, and moved to have it stricken as untimely filed. In the alternative, Gunter submitted his own responsive affidavit at the hearing refuting the allegations in the bank’s supplemental affidavit. The bank objected to Gunter’s supplemental affidavit as not timely filed. At the hearing, the bank also filed a deposition taken of Gunter’s mother in a separate case involving the bank and Gunter’s parents which purported to establish that Gunter executed the note for the bank’s agreement to modify the terms of a loan between the bank and Gunter’s parents. Gunter objected to the deposition on the basis that it also was not timely filed. The trial court allowed the deposition to be filed, and stated that it would consider both supplemental affidavits.

Relying on facts supplied in its supplemental affidavit and the deposition, the bank contended that failure of consideration was no defense since, even if Gunter received no proceeds from the note,' he signed it as an accommodation party for his parents in connection with an extension of time on their loan to the bank. See Scott v. Citizens Bank of Americus, 188 Ga. App. 618-620 (373 SE2d 633) (1988) (accommodation party has no viable defense of failure of consideration). The bank further pointed out that Gunter’s answer to the complaint asserts the affirmative defense that he executed the note as an accommodation party. However, this assertion in Gunter’s pleadings alleges no facts giving context to the defense, but only the bare legal assertion that he acted as an accommodation party. To be binding, a judicial admission must be one of fact, and not merely the pleader’s opinion or conclusion as to law or fact. Aiken v. Dept. of Transp., 171 Ga. App. 154 (319 SE2d 58) (1984). Asserting the legal defense of accommodation party was not an admission sufficient to eliminate consideration as an issue, and warrant summary judgment for the bank. See Cameron v. Moore, 199 Ga. App. 800, 801-803 (406 SE2d 133) (1991) (because deposition testimony is not an admission of fact, it was not a judicial admission supporting summary judgment).

An order was entered by the trial court on November 30, 1990 granting summary judgment to the bank. It is apparent from the transcript of the summary judgment hearing, and from the legal authority cited in the order granting summary judgment, that the trial court considered the bank’s supplemental affidavit and the deposition filed at the hearing in granting summary judgment to the bank. Pretermitting whether summary judgment would have been appropriate had these materials been timely submitted, without them, Gunter’s initial responsive affidavit establishes a genuine issue concerning the consideration given for the note which precludes summary judgment for the bank.

Since the bank’s supplemental affidavit and the deposition were not timely filed, they were not properly before the trial court for consideration. OCGA § 9-11-56 (c) which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6 (d) which requires that “[w]hen a motion is supported by affidavit, the affidavit shall be served with the motion,” have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. Wall v. Citizens &c. Bank, 145 Ga. App. 76 (243 SE2d 271) (1978); Bonds v. John Wieland Homes, 177 Ga. App. 254 (339 SE2d 318) (1985). Depositions relied on in support of the motion must also be filed 30 days prior to the hearing. Lynch v. Ga. Power Co., 180 Ga. App. 178 (348 SE2d 719) (1986). “[T]he procedure is designed to give the opposing party fair opportunity to contradict the supporting material relied upon by the movant . . . [OCGA § 9-11-56 (c)j requires that only supporting material which is ‘on file’ at least 30 days before the hearing shall be considered for the movant.” Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631-632 (278 SE2d 377) (1981).

However, this strict requirement may be waived by the opposing party’s acquiescence in the use of the untimely materials, or if the movant seeks and obtains an order from the trial court under OCGA § 9-11-6 (b) extending the time for filing. Wall, supra at 78-80; Jones v. Howard, 153 Ga. App. 137, 140-141 (264 SE2d 587) (1980) (any such order should ensure the opposing party is given 30 days to respond). Gunter objected to consideration of the materials filed less than 30 days prior to the hearing. There is no indication that, upon objection, Gunter was offered, but refused, a continuance to allow him 30 days to respond. See Jones, supra at 141. Under these circumstances we find Gunter has not waived or acquiesced in the consideration of the materials, nor is he estopped to complain. The bank did not seek an enlargement of the time to file under OCGA § 9-11-6 (b). Accordingly, the trial court erred by considering the late filed materials, and in relying on them to grant summary judgment to the bank.

In so ruling, we need not address Gunter’s enumerations of error dealing with the merits of issues raised by the untimely materials not properly before the trial court, nor do we express any opinion on the merits of the bank’s claim. The bank’s motion, for award of damages for a frivolous appeal is denied.

Decided September 30, 1991.

Hunton & Williams, Alan M. Wolper, Scott R. Phillips, for appellant.

Lamb & Associates, Andrew Bickwit, for appellee.

Judgment reversed.

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

       The trial court did not err, as contended by Gunter, in failing to grant him summary judgment as the non-moving party. Compare Eiberger v. West, 247 Ga. App. 767, 770 (281 SE2d 148) (1981).