author: Pope, Judge. Birdsong, Presiding Judge, Beasley, Judge,

text:
    A91A2074.
    FERRELL v. THE STATE.
    (416 SE2d 903)
   Pope, Judge.

Defendant Charlie C. Ferrell was indicted on four counts of violations of the Georgia Controlled Substances Act. The State took action to sever the trial of Counts 1 and 2 from the trial of Counts 3 and 4. Defendant was convicted of the charges contained in Counts 1 and 2, and appeals.

1. First, defendant asserts the trial court erred by denying his motion to dismiss the indictment. Defendant argues the indictment is void because the only witnesses appearing on the grand jury witness list are law enforcement officers, thereby showing the indictment was based solely on hearsay testimony. All four charges contained in the indictment relate to the alleged sale of cocaine by the defendant to a confidential informant who was wired with a “body bug.” The officer who monitored the transmission of the conversations between the informant and the defendant was a witness at the grand jury proceeding. The officer was competent to testify as a witness to the transactions, and his testimony would not have been hearsay. Thus, pursuant to the rule set forth in Felker v. State, 252 Ga. 351 (2) (a) (314 SE2d 621) (1984), defendant’s motion to dismiss the indictment was properly denied because the record shows a competent witness was examined before the grand jury. Moreover, “the verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendant with the offenses for which he was convicted. Hence, any possible error has been rendered harmless.” (Punctuation and citation omitted.) Isaacs v. State, 259 Ga. 717, 720 (2) (b) (386 SE2d 316) (1989).

Defendant also argues the trial court erred by denying him the opportunity to call the prosecutor as a witness in the hearing on his motion to dismiss the indictment. We need not address this argument because it is clearly beyond the scope of defendant’s enumeration of error. See Chezern v. State, 199 Ga. App. 869 (2) (406 SE2d 522) (1991); Rigenstrup v. State, 197 Ga. App. 176 (2) (398 SE2d 25) (1990).

2. Counts 1 and 2 of the indictment in this case related to the alleged sale and the lesser included offense of possession of cocaine on a certain date. Counts 3 and 4 related to the alleged sale and possession of cocaine on another date. The State took action to sever the trial of Counts 1 and 2 from the trial of Counts 3 and 4. Typically, a motion to sever the trial of separate offenses in a multi-count charge is made by the defendant. The Georgia Supreme Court, however, has adopted certain ABA Standards on Joinder of Offenses which provide for severance of offenses upon application of either the prosecuting attorney or the defendant “ ‘(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or (ii) if during trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.’ [Cit.]” Dingler v. State, 233 Ga. 462, 463-464 (211 SE2d 752) (1975).

Defendant argues the trial court erred in permitting the State to sever the offenses because no application to sever was made at or before the time of arraignment as all motions are required to be made, pursuant to Uniform Superior Court Rule 31.1. As noted above, however, an application to sever may be made during trial if the defendant consents and if it is deemed necessary to achieve a fair trial. Contrary to the conclusion of the dissenting judges, we do not conclude that the defendant waived his objection to severance when, at the conclusion of the hearing of defendant’s objection to severance, defendant’s attorney stated: “I don’t have a problem with it. I just wanted to put my objection to this in the record.” The statement must be considered in light of the immediately preceding comment by the judge, who referred to going forward with the trial of the first two counts of the indictment. In our opinion, the defendant was merely indicating a readiness to go forward with trial while still preserving objection to severance. Since defendant’s attorney clearly stated an objection to severance, it is illogical to assume the statement was meant to voice consent to the very ruling to which the attorney was stating an objection.

Moreover, the State presented no evidence or argument whatsoever that severance was necessary to promote a fair trial and the trial court made no such determination. Instead, the prosecuting attorney asserted the State has an absolute right to elect to sever counts of a multi-count indictment and could “try them one at a time all day long.” We do not agree that the State has such a right and, instead, conclude that in order to prevail on an application to sever, the State as well as the defendant must show that severance is necessary to promote a fair trial. Id.

We cannot say that severance was harmless to the defendant’s trial strategy. The State may have chosen to prosecute Counts 1 and 2 separately because the evidence was stronger on those counts. If defendant could have successfully defended the charges of Counts 3 and 4, it might also have weakened the State’s proof on the first two counts. Thus, the judgment is reversed.

Judgment reversed.

Sognier, C. J., Carley, P. J., Cooper and Johnson, JJ., concur. McMurray, P. J., Birdsong, P. J., Beasley and Andrews, JJ., concur in part and dissent in part.

Birdsong, Presiding Judge,

concurring in part and dissenting in part.

I concur in Division 1 of the majority opinion; however, as I believe the judgment should be affirmed, I am compelled to dissent as to Division 2 and as to the judgment of reversal.

Appellant asserts the trial court erred in allowing the State to proceed to trial on only two counts of the four-count indictment as this would be the equivalent of granting a motion to sever the counts contained in the indictment against appellant.

1. The State argues that this issue was waived by appellant’s failure to raise objection until after the first witness testified at trial. Like the tacit holding of the majority, I would not invoke waiver in regard to this issue as the record shows that at a pre-trial motion hearing, this procedure was discussed and appellant’s counsel stated an objection thereto.

2. While a trial court has discretion to sever the trial of separate crimes named in the same indictment (Lindsey v. State, 234 Ga. 874, 876 (218 SE2d 585)), there also exists a general rule that indictments returned by the grand jury are not amendable by the district attorney. Kesler v. State, 249 Ga. 462, 468 (291 SE2d 497). Notwithstanding the contentions of the State, the trial record reflects that it was the State and not the trial court which elected unilaterally to proceed with trial in such a manner as to treat the indictment as if it were an indictment to Counts 1 and 2 only. This in practical effect separated (rather than severed pursuant to a court-approved application) Counts 3 and 4 from the indictment the State proceeded upon at trial. In fact, the State expressly asserted at trial that if the State elects, “to sever” the counts, appellant could not complain as “we can try them one at a time all day long.” (I agree with the majority that the State does not have an unlimited right to separate counts unilaterally from an indictment and to try each count one at a time all day long.) The State also asserted that “we announced” the counts would be tried separately, and that “the State has a right to sever it if [it] wants to.” Examination of the record in toto, including the responses of the trial judge, establishes not only was no application for severance ever tendered to the trial court and that it was not the trial judge who ordered the counts severed, but it was the State who elected and in fact called only the two counts for trial. (Compare the procedure actually employed by the state with ABA Standards on Joinder of Offenses, § 13-3.1, which authorizes the court, upon timely application, to grant severance under certain conditions.) After the first witness was called by the State, appellant’s counsel inartfully objected to the State’s separation of the counts by its failure, to try all counts at once and asserted she previously had been unaware that the State intended to try counts separately. Subsequently, the trial court speculated whether appellant’s objection “is good” and concluded that even if it were, it would not stop prosecution of Counts 1 and 2, which had been called for trial. After additional incidental colloquy, the trial court agreed with a comment by the State that there was no sense in engaging in speculation as to whether appellant’s objection (to the separation of counts) was good, stating: “I agree. I agree. I mean I think as far as going forward on this one. . . .” (Emphasis supplied.) Appellant’s counsel interrupted the trial judge and affirmatively stated on the record: “Right. I don’t have a problem with it [that is, proceeding to trial on only Counts 1 and 2]. I just wanted to put my objection to this in the record.” (Emphasis supplied.)

I would find appellant’s second enumeration without merit for two independent reasons. First, appellant has failed to show, as to the case sub judice, how he was prejudiced or otherwise denied his fair trial rights merely by being required to proceed with trial on two drug counts rather than four. Harm as well as error must be shown to authorize a reversal on appeal. Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53); see generally Tatum v. State, 259 Ga. 284 (3) (380 SE2d 253). The majority has chosen to speculate as to how harm as well as error may have resulted by proceeding to trial on only two counts. This it does in the face of a silent record, regarding the purpose behind defendant’s trial strategy, and in spite of the lack of an affirmative appellate assertion as to how appellant has been harmed as of this moment by the very procedure in which he participated. This type of blatant speculation in order to overturn a verdict defies the basic rule that on appeal an appellate court is bound to construe the evidence with every reasonable inference and presumption being in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305 (1) (223 SE2d 498). Secondly, appellant acquiesced in proceeding with trial on only Counts 1 and 2, and by such conduct aided in causing that result. When the State called the case, it did so expressly with respect only to Counts 1 and 2. Appellant’s counsel did not raise an objection, at this point in the trial record, to this aberrant procedure but announced: “The defense is ready, Your Honor,” indicating a readiness to proceed to trial on Counts 1 and 2 and at least implying to the trial court a willingness to do so. The jury was subjected to voir dire on the basis that trial would be held on only the two counts with appellant’s counsel stating to the panel: “This is a case in which you all have heard the District Attorney announce that this case is involving a charge of sale and possession of cocaine.” The jury was selected on this same basis. Thereafter, appellant’s counsel did not object to that portion of the State’s opening statement expressly referring only to the one incident as being on trial, and instead made a responsive opening statement on appellant’s behalf. By this conduct, and by the comments of appellant’s counsel, as discussed in detail in the paragraph above, appellant clearly acquiesced in and in fact assisted in the State’s announced procedure to proceed to trial on only two counts. Under such circumstances appellant is precluded by its acquiescence from obtaining relief on appeal from the State’s election to proceed to trial on only Counts 1 and 2. Harmon v. State, 259 Ga. 444 (3) (383 SE2d 874); Easterwood v. State, 259 Ga. 164 (2) (377 SE2d 857). Additionally, “[a]n appellant cannot complain of a result his own procedure or conduct aided in causing.” Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889); Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251). The majority has construed the same evidence of record in such a manner as to find that defendant did not acquiesce in the State’s aberrant trial procedure, and apparently concludes tacitly that appellant by his own conduct did not aid in the procedure employed by the State in this case. In my view, this defies the cardinal principle that an appellate court must view the evidence of record in a light most favorable to sustaining the verdict. Ross v. State, 195 Ga. App. 624 (1) (394 SE2d 418); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). I construe the evidence of record in support of the verdict thereby finding that such acquiescing and aiding conduct occurred on the part of appellant. Even if the effect of the statements and trial conduct of appellant is capable of two differing interpretations, as is apparent from the 5-4 decision of this court, consistent with long-established appellate practice, we should construe these statements and conduct to uphold the verdict rather than overthrow it. Ross, supra; Grant, supra; see Wren v. State, 57 Ga. App. 641, 644 (196 SE 146). And, we will not reverse the correct ruling of a trial court regardless of the reason given therefor. Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557); Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

Decided March 20, 1992.

Mable V. Booker, for appellant.

Dennis C. Sanders, District Attorney, Michael N. Annis, Assis tant District Attorneys, for appellee.

It is clear from an examination of this record in toto that appellant really was concerned not with being tried immediately upon Counts 1 and 2, but with being subsequently tried and being subjected to a potential life sentence on Counts 3 and 4. As the questions of whether the State can subsequently try appellant on the separated Counts 3 and 4 and whether a life sentence can be imposed in the event of a subsequent conviction is not at issue in this case, the dissent declines to speculate concerning these matters.

In my view, this conviction should be affirmed as none of appellant’s enumerations of error has merit. An accused is only entitled to a fair trial not a perfect one. Ross, supra at 627 (4).

I respectfully dissent. I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.

Beasley, Judge,

concurring in part and dissenting in part.

I agree with Presiding Judge Birdsong except that in my opinion, the acquiescence constituted a waiver of the prior objection. True, there was objection at a pre-trial motion hearing. But then, that ended with the defense counsel’s statement, “I don’t have a problem with [trying counts one and two]. I just wanted to put my objection to this in the record.” At most this is ambiguous. Any ambiguity was resolved when the case was called for trial on the first two counts. The defense announced ready and proceeded on the first two counts instead of maintaining the objection.

It was not until after readiness was announced, the jury was selected and sworn, opening statements were made, and the State’s first witness was called, all on the basis of a two-count trial, that defendant resurrected the earlier position, by initiating a discussion about the trial of only one transaction. By then it was too late.


source: Caselaw Access Project

author: Carley, Presiding Judge. Johnson, Judge,

license: Public Domain

text:
    A91A2080, A91A2081, A91A2082, A91A2083.
    ANAYA v. BROOKS AUTO PARTS, INC.; and vice versa.
    (417 SE2d 423)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit, seeking to recover for personal injuries under theories of products liability, breach of implied warranty, and negligence. Appellee-defendant answered, denying the material allegations of appellant’s complaint. The case proceeded to trial before a jury and appellee moved for a directed verdict. The trial court granted appellee’s motion as to appellant’s recovery under the products liability and breach of implied warranty theories. However, the trial court reserved its ruling on appellee’s motion as to appellant’s recovery under the negligence theory and allowed the case to go to the jury on that theory. After the jury returned a verdict in favor of appellant, the trial court, acting sua sponte and without ever entering judgment on the jury’s verdict, granted appellee’s motion for a directed verdict and entered judgment thereon. In Case Nos. A91A2080 and A91A2081, appellant appeals from this judgment and, in Case No. A91A2082, appellee cross-appeals. After the trial court had entered judgment on its grant of appellee’s motion, appellee filed a “Motion for New Trial in the Alternative to the Judgment rendered by the [Trial] Court.” In Case No. A91A2083, appellee appeals from the denial of this motion.

Case Nos. A91A2080 and A91A2081

1. As noted, the trial court granted appellee’s motion for a directed verdict and entered judgment thereon prior to entering judgment on the jury’s verdict for appellant. There is authority for the proposition that a trial court, having reserved its ruling on a motion for a directed verdict, may grant the motion after entering judgment on the jury’s verdict. Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 420 (1) (249 SE2d 224) (1978); Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 111 (a) (372 SE2d 265) (1988), aff’d 259 Ga. 376 (382 SE2d 597) (1989). However, there is no authority for the proposition that a trial court, having reserved its ruling on a motion for a directed verdict, may grant the motion before entering judgment on the jury’s verdict.

“When a motion for directed verdict is reserved and ruled on after the verdict, it is treated as a judgment notwithstanding the verdict.” Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 250 (1) (329 SE2d 918) (1985), rev’d, in part, on other grounds 254 Ga. 734 (334 SE2d 308) (1985). It follows that, as in the controlling Supreme Court authority of Connell v. Long, 248 Ga. 716, 719 (1) (286 SE2d 287) (1982), “the trial court [in the instant case] should not in effect have entered a judgment notwithstanding the verdict. . . prior to entry of judgment on the verdict. [Cit.]” (Emphasis supplied.) (Post-verdict grant of motion for a directed verdict.) Accordingly, the trial court’s erroneous post-verdict grant of appellee’s motion for directed verdict must be “reversed with direction that judgment be entered on the jury’s verdict. Thereafter, appellant will be entitled to pursue [his] post-judgment remedies, including the right to file an . . . appeal from any adverse final judgment in the case.” Vinson v. Piedmont Housing, 198 Ga. App. 814, 815 (1) (403 SE2d 96) (1991).

Case No. A91A2082

2. The cross-appeal from the judgment entered on the trial court’s grant of appellee’s motion for a directed verdict must be dismissed. “The effect of our reversal of the main appeal[s] is not to order a retrial in the [state] court, and, under such circumstances, ‘ “the settled practice is to dismiss the cross-(appeal).” (Cits.)’ [Cit.]” (Emphasis in original.) Vinson v. Piedmont Housing, supra at 815 (2).

Case No. A91A2083

3. Appellee’s appeal from the denial of its alternative motion for new trial must likewise be dismissed. Appellee’s motion was premature, since it was filed before judgment was ever entered on the jury’s verdict. After the state court’s compliance with the mandate of our holding in the main appeals, appellee will be entitled to pursue its post-judgment remedies, including the right, should it prove necessary, to file a motion for judgment notwithstanding the verdict or, in the alternative, new trial.

Judgment reversed with direction in Case Nos. A91A2080 and A91A2081. Appeals dismissed in Case Nos. A91A2082 and A91A2083.

McMurray, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur. Sognier, C. J., and Johnson, J., dissent.

Johnson, Judge,

dissenting.

While it is true that in Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 111 (1) (a) (372 SE2d 265) (1988), aff’d 259 Ga. 376 (382 SE2d 597) (1989), the trial court had entered judgment on the jury’s verdict before granting the contrary motion for directed verdict, there was no suggestion in that case that such a procedure was required. To the contrary, this court specifically stated in Brandvain that “ruling on the motion prior to the entry of the . . . judgment would have been procedurally and conceptually more orderly as contemplated by OCGA § 9-11-50 (b). . . .” (Emphasis supplied.) Id. This is precisely the procedure which was followed in the present case, yet we are now holding that a more convoluted procedure is required.

Decided March 20, 1992.

Novy & Jaymes, Eugene Novy, Deborah M. Vaughan, for appellant.

Brennan & Wasden, Wiley A. Wasden III, for appellee.

As I understand the majority’s ruling, this case will now be returned to the trial court, where the judge, after first entering judgment on the jury’s verdict, will be authorized sua sponte to vacate that judgment, re-grant the defendant-appellee’s motion for directed verdict, and enter judgment accordingly, following which the appellant-plaintiff will be in position to file a new appeal. All of this is totally unnecessary and could be obviated by simply reaching the merits of the main appeal at the present time. Believing the holding in Division 1 of the majority’s opinion both frustrates judicial economy and efficiency and adds a needless layer of complexity to post-trial practice in this state, I respectfully dissent.

I am authorized to state that Chief Judge Sognier joins in this dissent.


author: Carley, Presiding Judge. Beasley, Judge, Andrews, Judge,

text:
    A91A2212.
    A91A2214.
    A91A2215.
    A91A2216.
    LEE et al. v. THE STATE. KEYS et al. v. THE STATE. BENSON v. THE STATE. WRIGHT et al. v. THE STATE.
    (417 SE2d 426)
   Carley, Presiding Judge.

Each appellant in these companion appeals was tried before a jury and found guilty of criminal violations committed in connection with their protest against abortion. Thereafter, each filed a timely pro se appeal from the respective judgments of conviction and sentences entered by the trial court on the jurys’ guilty verdicts. However, no appellant has ever filed any enumeration of errors or brief, notwithstanding this court’s orders directing them to do so. Because the procedural posture of these four appeals is identical, they are hereby consolidated for appellate disposition in this single opinion.

1. After the decision of the Supreme Court of the United States in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), this court “amended its rules regarding the dismissal of criminal cases for failure to comply with an order of the court directing the filing of an enumeration of errors and a brief. Such noncompliance will no longer automatically result in the dismissal of an appeal. See Court of Appeals Rule 14 [a]. . . .” DeBroux v. State, 176 Ga. App. 81 (1) (335 SE2d 170) (1985). Even if Euitts does not constitutionally require that we automatically consider the merits of a criminal appeal wherein there has been no compliance with Rule 14 (a), a majority of this court in DeBroux v. State, supra at 81 (1), nevertheless held that, “[notwithstanding a criminal defendant’s failure to comply with the rules of this court, we will make every effort to enter a decision on the merits of the case.” Since DeBroux was decided, a majority of this court has continued to adhere to its mandate. “We do not find that the failure ... to file an enumeration of errors and brief authorizes the dismissal of appellant’s appeal. [Cit.]” (Emphasis supplied.) Allen v. State, 192 Ga. App. 320, 321 (385 SE2d 29) (1989). “Notwithstanding the . . . defendant’s failure to comply with the rules and an order of this court, we decline to dismiss his appeal but, instead, will make every effort to render a decision on the merits of the case.” (Emphasis supplied.) Conyers v. State, 183 Ga. App. 591 (1) (359 SE2d 454) (1987).

“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” (Emphasis supplied.) Art. VI, Sec. V, Par. Ill of the Ga. Const, of 1983. “[T]he older decisions of this court are binding on this court until reversed or overruled by the Supreme Court or overruled by this court. . . .” (Emphasis supplied.) McKibben v. State, 88 Ga. App. 466, 474 (1) (77 SE2d 86) (1953). Accordingly, we have a constitutional duty and obligation to follow the holdings in the whole-court decisions in Allen, Conyers and DeBroux unless there is a bona fide reason to depart from the principle of stare decisis. Having considered the issue for yet a fourth time, a majority of this court again adheres to the mandate of Allen, Conyers and DeBroux and, recognizing that a speedy resolution of criminal appeals is preferable to a delay of that determination, we reiterate that, once this court’s jurisdiction has been invoked by a timely filed notice of appeal from a criminal conviction, we will not dismiss for the subsequent failure to comply with the rules of this court, but will make every effort to render a decision on the merits of the case.

2. A review of the records shows that, from the evidence adduced at each trial, the jury was authorized to find proof, beyond a reasonable doubt, of the guilt of the defendant on trial. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. “[0]ur independent examination of the record and transcript has revealed no error of law requiring reversal. Accordingly, [each] appellant’s [convictions are] affirmed.” Allen v. State, supra at 321. See also Conyers v. State, supra at 591 (2); DeBroux v. State, supra at 81 (2).

Judgments affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper and Johnson, JJ., concur. Beasley and Andrews, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent. I do not concur in Division 1 because I discern nothing in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), which obligates this court to use the procedure it has followed. Yet it is the understanding of Evitts which the majority of this court has, which is the genesis and catalyst for the change in our Rule 14. See DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985). Rule 14 authorizes and does not prohibit the dismissal of criminal appeals. Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989), are both bottomed on the interpretation of Evitts.

These four appeals, brought by ten defendants, emanate from convictions following jury trials on three consecutive days in April 1990, and sentences which were modified post-appeal so as to result in fines and statutory penalties and 12-month sentences suspended on conditions which included payment of the fines. The defendants were convicted of criminal trespass, OCGA § 16-7-21, and Chris Keys was also convicted of refusal to comply with a lawful order, OCGA § 40-6-2. All except Benson were involved in incidents occurring on December 21, 1989, and January 3, 1990. Benson participated in the one in January.

After notices of appeal were filed (with certificates of service signed by someone designated as “next friend”), defendants sought trial transcripts and record preparation at county expense. The motions were granted after “the Court conducted extensive hearings.” Transcripts and records were duly prepared, and the appeals were docketed in this court on September 5, 1991.

No action was taken by any of these defendants to perfect their appeals.

After the time for filing enumerations of error and briefs had passed, orders were entered under Rules 14 (a), 23 and 27 (b) extending the time and defendants were expressly warned that failure to comply “may result in dismissal of the appeal[s] and may subject the offenders] to contempt.” The orders were sent to the respective addresses of defendants in Georgia, California, North Carolina, and New York.

The extensions were sua sponte except in the appeal of Joseph Wright, Kim Wright, and Domingo. Domingo alone moved for an extension on September 25 based on the claim that he had not received the transcript. Although the transcript in their case had been filed in the trial court on August 30, 1991, this court granted an extension. The times for filing have expired months ago, and no enumerations of error, briefs, or word has been received from any of the defendants.

Even when enumerations of error are filed, if they are “not supported by argument, reference to the transcript, or citation of authority,” they are deemed abandoned. Grier v. State, 198 Ga. App. 840, 842 (2) (403 SE2d 857) (1991). See also, e.g., Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807) (1990); Moss v. State, 196 Ga. App. 81, 84 (5) (395 SE2d 363) (1990) (pro se appeal); Burns v. State, 196 Ga. App. 732, 733 (397 SE2d 19) (1990); Mitchell v. State, 195 Ga. App. 255, 257 (fn. 1) (393 SE2d 274) (1990); Saunders v. State, 195 Ga. App. 810, 811 (2) (395 SE2d 53) (1990). Not only are there not any arguments or citations of authority giving reasons why a certain trial court ruling is enumerated as error, we do not even have any enumerations of error. “ ‘[T]his court is without jurisdiction to consider [what is not enumerated as error].’ ” Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 747 (3) (360 SE2d 70) (1987), quoting from Riggins v. State, 128 Ga. App. 478 (197 SE2d 154) (1973).

It is a long established and firm rule that, as repeated in Taylor v. State, 197 Ga. App. 678, 680 (2) (399 SE2d 213) (1990), “[t]he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) Here the defendants have not even alleged error.

Defendants are not entitled to have their convictions reviewed as a matter of right by an appellate court in this State, nor under the Federal Constitution. Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990). By their conduct and their inaction, they have failed to pursue their appeals and they must be dismissed because they have been abandoned and because we have no jurisdiction in the absence of enumerations of error as required by OCGA § 5-6-40.

Allen v. State, supra; Conyers v. State, supra; DeBroux v. State, supra; and any other like decisions should be overruled. There are no “merits of the case” to decide.

That being so, I do not reach the issues decided in Divisions 2 and 3.

Andrews, Judge,

dissenting.

For the reasons expressed herein, I would dismiss these appeals without prejudice and remand them to the trial court to determine whether they have been abandoned.

Since these appellants elected to proceed pro se, and there is no claim that any of them was deprived of the right to be effectively represented by counsel on appeal, neither the holding nor the spirit of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), requires that they be heard on the merits. In Evitts v. Lucey the U. S. Supreme Court found that the due process clause guarantees a criminal defendant effective assistance of counsel on the first appeal as of right. Even though there is no federal or state constitutional right to an appeal (see Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990)), where the State elects to create an appellate system as an integral part of adjudicating a defendant’s guilt or innocence, the procedures used in the appeals process must comply with the demands of due process. Evitts v. Lucey, supra at 393. A criminal defendant’s constitutional right to receive effective assistance of counsel is an essential means to ensuring that appeals procedures comport with due process by providing defendants with legal representation necessary to afford them adequate and effective access to the first appeal as of right. Pennsyluania v. Finley, 481 U. S. 551, 558 (107 SC 1990, 95 LE2d 539) (1987); Evitts v. Lucey, supra. Under Evitts v. Lucey, the State may not cut off a defendant’s access to the appeals system because his lawyer provided ineffective assistance by failing to follow mandatory appellate rules. However, Evitts v. Lucey, clearly did not require that an appellate court ignore violation of its procedures, and attempt to decide every case on the merits regardless of its posture before the court. “If instead a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client’s due process rights.” Evitts v. Lucey, supra at 399 (discussing remedies which preserve fair access to the appeals system, which may be made available to a defendant whose appeal was not considered on the merits because of ineffective appellate counsel). Since the present appeals were brought pro se, and raise no issue of ineffective assistance by appellate counsel, the due process discussion in Evitts v. Lucey has no direct application, although it has had a persuasive influence on this Court’s consideration of procedurally defaulted pro se appeals.

This Court’s holding in Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989) dealt with procedural defaults caused by ineffective assistance of counsel, and has no direct application to these pro se appeals. Nevertheless, to the extent Allen continued a policy that this Court attempt to render a decision on the merits of all procedurally defaulted cases regardless of their posture before the Court, it should be disapproved. As I read Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985), both of which declined to dismiss pro se appeals after the appellants failed to file enumerations of error and briefs, neither case holds that Evitts v. Lucey required that this Court render a decision on the merits. Rather, both cases appear to rely on Evitts v. Lucey as persuasive authority for the decision to “make every effort to render a decision on the merits of the case.” Conyers supra at 591. In my view, the reliance of Conyers and DeBroux on the persuasive authority of Evitts v. Lucey and other cases based on the same rationale, demonstrates a misplaced concern that defendants who err while representing themselves on appeal should not have their appeals dismissed, while we refuse to dismiss appeals for the same errors committed by appellate counsel on behalf of their clients. The difference is that where “the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State ...” which may not conduct the appeals process without ensuring the defendant has effective legal assistance. See Murray v. Carrier, 477 U. S. 478, 488 (106 SC 2639, 91 LE2d 397) (1986). No such State responsibility is imputed where a defendant, properly advised of the right to appellate counsel, elects to proceed pro se. For those represented by ineffective counsel, a procedural default has due process implications flowing from the denial of meaningful access to the appeals process. For those who waive the right to be represented by an attorney and elect to proceed pro se, the same procedural default has no such due process implications. Accordingly, I believe the holdings in Conyers and DeBroux requiring that this Court “make every effort to render a decision on the merits” in such pro se cases are based on the erroneous assumption that the same due process concerns are present in procedurally defaulted pro se cases that exist in cases where the appellant is represented by an attorney. Such an assumption cannot be justified by reliance on Evitts v. Lucey or any other authority cited. By requiring an effort to reach the merits in all such cases, both Conyers and DeBroux simply assume that due process will be violated by a dismissal, and foreclose this Court’s exercise of discretion under Court of Appeals Rule 14. For these reasons Conyers and DeBroux should be overruled.

In my view, for this Court to adopt the position that it will attempt to render an immediate decision on the merits of every procedurally defaulted case, whether the appellant is pro se or represented by counsel, is unworkable. As Evitts v. Lucey made clear in the context of a represented appellant, the task is not to necessarily decide every case on the merits, but to ensure that every criminal defendant is provided due process of law by having adequate and effective access to the state created appeals system. When an appellant has failed to provide this Court with any enumerations of error or brief, to consider the merits we are forced in effect to assume the role of counsel for the appellant, and undertake the burdensome task of reviewing the entire record for possible error. The same dilemma created by this policy was rejected by the Georgia Supreme Court in Huguley v. State, 253 Ga. 709, 710 (324 SE2d 729) (1985), when the Court finally concluded it would no longer accept Anders’ motions which forced it to review the record, without assistance of counsel, for any colorable claim of error, implicitly recognizing that “an appellate court looking at a cold record” is no substitute for effective assistance of counsel. Id. at 710.

This Court laid the basis for a workable policy with respect to these defaulted appeals in Rule 14 which gives the Court the discretion to consider their disposition on a case by case basis. The Court should now undertake a consistently applied policy of exercising its discretion under Rule 14 with respect to both pro se and represented cases. Where no enumerations of error or brief has been filed despite court order to do so, if the Court is able to determine, as a matter of fact, that the appeal has been abandoned, it should be dismissed. If there is some reason to believe that the appeal has not been abandoned and should be considered on the merits, the appeal should be dismissed without prejudice and remanded to the trial court with instructions to conduct a hearing to determine whether or not the appeal has been abandoned. If the appeal has not been abandoned, the trial court should enter an order so finding, and renew instructions, if necessary, on the right to counsel, appointed counsel, or the right to proceed pro se, and make appropriate appointments or replacements of counsel. If the trial court determines the defendant has abandoned the appeal, an order should be entered making this determination, supported by the court’s findings of fact. In the former situation, the defendant should be given 30 days from entry of the trial court’s order in which to file an out-of-time appeal with respect to any of the trial court’s determinations on remand, and any claim of error which could have been made in the original appeal. This suggested remand procedure is consistent with the concern expressed in Evitts v. Lucey that if the appellate court chooses not to immediately consider the procedurally defaulted appeal on the merits, some alternative procedure be provided to ensure fair access to the appeals system.

Accordingly, I would dismiss these appeals, and remand the cases pursuant to the above.

Decided March 20, 1992.

Jesse Lee, pro se.

Gaylen Keys, pro se.

Richard Benson, pro se.

Joseph Wright, pro se.

James L. Webb, Solicitor, for appellee.

       We do not deal here with jurisdictional prerequisites which this Court has determined are not governed by the holding in Evitts v. Lucey, supra. Sharpe v. State, 198 Ga. App. 381, 382 (401 SE2d 586) (1991); Snelson v. State, 190 Ga. App. 320 (378 SE2d 723) (1989).

       Dismissal and remand with leave to file a subsequent out-of-time appeal is consistent with the manner in which this Court has handled the need for factual determinations in the trial court on issues of ineffective assistance of counsel, and determinations of indigency and appointments of appellate counsel. Wallace v. State, 199 Ga. App. 817 (406 SE2d 140) (1991); Mapp v. State, 199 Ga. App. 47, 48 (403 SE2d 833) (1991); Jacobs v. State, 184 Ga. App. 869 (363 SE2d 155) (1987); Chapman v. State, 183 Ga. App. 376, 377 (359 SE2d 14) (1987).


author:
Carley, Presiding Judge. Andrews, Judge,
      Beasley, Judge,

text:
    A91A2213.
    MERCIER et al. v. THE STATE.
    (417 SE2d 430)
   Carley, Presiding Judge.

Appellants Mercier and Nuzum were tried before a jury and found guilty of criminal violations committed in connection with their protest against abortion. They appeal jointly from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Nuzum has filed no separate enumeration of error or brief. However, this court never entered an order, pursuant to Rule 14 (a), directing him to do so. Nothing in Rule 14 (a) of this court authorizes the dismissal of a case wherein this court has itself failed to enter an order directing that an enumeration of errors and brief be filed. Moreover, since Nuzum appeals from a criminal conviction, his failure to file an enumeration of errors and brief, even if he had been ordered to do so, would not result in a dismissal. Lee v. State, 203 Ga. App. 487 (417 SE2d 426) (1992).

A review of the record shows that, from the evidence adduced at the trial, the jury was authorized to find proof, beyond a reasonable doubt, of Nuzum’s guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In addition, “our independent examination of the record and transcript has revealed no error of law requiring reversal. Accordingly, [Nuzum’s] conviction is affirmed.” Allen v. State, 192 Ga. App. 320, 321 (385 SE2d 29) (1989). See also Conyers v. State, 183 Ga. App. 591 (2) (359 SE2d 454) (1987); DeBroux v. State, 176 Ga. App. 81 (2) (335 SE2d 170) (1985).

2. Mercier urges that he was denied the assistance of counsel. However, “[t]he trial court’s refusal to allow [someone], who is not a member of the State Bar of Georgia, to sit at the defense table during trial [or to conduct the defense] was not a denial of appellant’s constitutional right to counsel, nor of any other constitutional right. ‘While an accused has a right to representation by an attorney and to represent himself, there is no right to be represented by a non-lawyer third party.’ [Cit.]” Cruickshank v. State, 258 Ga. 544 (1) (372 SE2d 223) (1988). The trial court was authorized to find that Mercier’s rejection of the assistance of the public defender, coupled with his insistence upon the appointment of counsel of his own choosing, was “ ‘the functional equivalent of a knowing and voluntary waiver of counsel. In such an instance the trial court may proceed to trial with the defendant representing himself.’ [Cit.]” Phipps v. State, 200 Ga. App. 18, 19 (406 SE2d 493) (1991). See also Turner v. State, 199 Ga. App. 836 (1) (406 SE2d 512) (1991).

3. Mercier moved to dismiss the accusations because he had been denied physical access to the law library. However, a continuance, and not a dismissal, would be the appropriate remedy for a purported lack of preparation. Mercier expressly declined the opportunity for a continuance and announced ready for trial. “[T]he announcement of ready constitutes a waiver of [Mercier’s] right to a continuance. [Cit.]” Whatley v. State, 162 Ga. App. 106 (1) (290 SE2d 316) (1982). “ ‘A defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. (Cits.)’ [Cit.] ‘Induced error is impermissible and furnishes no ground for revérsal. (Cit.)’ [Cit.]” Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).

4. “This court will not consider factual allegations in the briefs of parties which are not supported by evidence contained in the record. [Cit.]” Hurst v. State, 198 Ga. App. 380, 381 (4) (401 SE2d 348) (1991). Accordingly, we are unable to consider Mercier’s assertion that he was forced to trial while wearing prison garb.

5. Insofar as Mercier questions the correctness of the transcript, “there is nothing for [this] court to review.” Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980).

6. Mercier urges that, during the sentencing phase, counsel for the State made an improper comment. However, no objection was raised in the trial court. Insofar as the actual sentence is concerned, it is within the statutory limits and beyond our authority to review. Sherrell v. State, 170 Ga. App. 798 (1) (318 SE2d 221) (1984).

7. From the evidence adduced at trial, the jury was authorized to find proof, beyond a reasonable doubt, of Mercier’s guilt. Jackson v. Virginia, supra.

Judgments affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper and Johnson, JJ., concur. Beasley and Andrews, JJ., concur in part and dissent in part.

Andrews, Judge,

concurring in part and dissenting in part.

I concur fully in the opinion and judgment affirming Mercier’s conviction. For the reasons stated in my dissent in Lee v. State, 203 Ga. App. 487 (417 SE2d 426) (1992), I dissent from the majority’s disposition of Nuzum’s appeal.

Beasley, Judge,

dissenting in part.

Mercier and Nuzum were each charged in two separate accusations with criminal trespass in violation of OCGA §§ 16-7-21 (a) (two counts) and 16-7-21 (b) (3) (two counts), resulting from their participation in demonstrations occurring on December 31, 1989 and January 3, 1990. They were jointly tried and convicted of each offense.

They both signed a notice of appeal, with a certificate of service signed by someone designated as “next friend,” but only Mercier has pursued it.

1. To the extent there is an appeal by Nuzum, it should be dismissed. See dissent in Lee v. State, 203 Ga. App. 487 (417 SE2d 426) (1992). I do not reach the issue decided in Division 1.

2. Mercier was among 14 to 16 people who “pushed their way into” Atlanta Northside Family Planning Services on December 21, 1989, where they proceeded to throw chairs and handcuff themselves to the furniture. The clinic administrator summoned the police after requesting several times that they leave and receiving no response. The police advised the group that they were trespassing on private property and again asked them to leave. When they received no response, they arrested the demonstrators.

On January 3, 1990, Mercier was in a group of people who arrived at the Feminist Women’s Health Clinic. They disregarded “no trespass” signs and proceeded past police barricades onto the porch of the facility, where they sat blocking the entrance. The clinic manager identified herself to the group, informed them they were trespassing on private property and asked them to leave. They refused and the police were called. The same announcement was made in the presence of the police, and when the demonstrators again refused to leave, they were arrested.

Mercier, who is indigent, contends he was denied his right to counsel. A written request for the appointment of counsel who professed to be a born-again Christian, attended church regularly, and had personal experience at reading the Bible was initially submitted but later withdrawn, on the assertion that it had been made under extreme duress.

At trial appellant and other defendants refused the offer of counsel, requesting instead that they be represented by a specific person, who is not a member of the State Bar of Georgia. When the court explained that defendants were not entitled to be represented by a non-lawyer third party, they elected to proceed pro se. Over objection, the court nonetheless appointed an attorney to remain in the courtroom throughout the proceedings in an advisory capacity. He had had an opportunity to confer with each defendant. I concur in Division 2.

I concur in Division 7 as well as in Divisions 2 through 6.

Decided March 20, 1992.

Johnny Mercier, pro se.

David Nuzum, pro se.

James L. Webb, Solicitor, Helen A. Roan, R. Lee O’Brien, Jr., Assistant Solicitors, for appellee.


author: McMurray, Presiding Judge.

text:
    A92A0330.
    TOOTLE v. THE STATE.
    (417 SE2d 433)
   McMurray, Presiding Judge.

Defendant was indicted for operating a motor vehicle after having been declared a habitual violator (Count 1) and for driving a motor vehicle while under the influence of alcohol and drugs (Count 2). The evidence adduced at the jury trial revealed the following: On February 11, 1990, defendant was stopped on Georgia Highway 121 just south of Reidsville at a Georgia State Patrol roadblock. Defendant produced a Missouri driver’s license and informed Trooper Johnny Kennedy of the Georgia State Patrol that “he had [a Georgia driver’s license] a long time ago.” Trooper Kennedy conducted a computerized roadside check of defendant’s driving record and discovered that defendant’s Georgia driving privileges had been revoked because he had been declared a habitual violator under OCGA § 40-5-58.

Defendant was found guilty of operating a motor vehicle after having been declared a habitual violator and not guilty of driving a motor vehicle while under the influence of alcohol and drugs. Defendant appealed to the Supreme Court of the State of Georgia, challenging the constitutionality of OCGA § 40-5-65. The Supreme Court transferred the appeal to the Court of Appeals, stating that there is “no basis for jurisdiction in this Court. . . .” Held:

In his first enumeration, defendant contends the trial court erred in denying his motion in limine preventing “any witness or the District Attorney from testifying or commenting in any manner, upon the existence, substance or legal effect of OCGA Section 40-5-65.” In his second enumeration, defendant contends the trial court erred in denying his motion for directed verdict on the charge that he operated a motor vehicle after having been declared a habitual violator. In his final enumeration, defendant contends the trial court erred in charging the contents of OCGA § 40-5-65, i.e., “I further charge you that any resident or nonresident whose driver’s license or privilege to operate a motor vehicle in this State has been suspended or revoked, as provided by law, shall not operate a motor vehicle in this State under a license or permit issued by any other jurisdiction or otherwise, during such suspension or after such revocation, until the license is restored, when and as permitted under Georgia law.”

Decided March 20, 1992.

Stubbs & Associates, M. Francis Stubbs, for appellant.

Defendant asserts one argument in support of the above enumerations challenging the constitutionality of OCGA § 40-5-65. At trial, defendant argued in support of his motion in limine that OCGA § 40-5-65 “is blatantly unconstitutional in that it violates the full faith and credit clause of the United States Constitution, which is . . . Article Four, Section One[, providing] that full faith and credit has to be given by every state to the public acts, records and judicial proceedings of every other state.” Defendant objected to the trial court’s instruction on OCGA § 40-5-65 arguing “that [the] statute is unconstitutional. ...” On appeal, defendant contends OCGA § 40-5-65 is unconstitutional because it fails to give full faith and credit to his Missouri driving privileges and because it impairs his right to travel freely through the State of Georgia. Defendant further reasons that the legislative intent of OCGA § 40-5-65 is not to prevent out-of-state residents with valid driving privileges in other states from traveling through Georgia, but to prevent “ ‘sham’ situations where a Georgia resident lost his license and went to another State, intending to return, only for the purpose of obtaining another license.”

“The Supreme Court’s refusal to review [defendant’s] constitutional challenge mandates the finding that [defendant’s] contentions of error on constitutional grounds are without merit. Cassells v. Bradlee Mgt. Services, 161 Ga. App. 325, 326 (1) (291 SE2d 48).” Johnston v. Atlanta Humane Society, 173 Ga. App. 416, 418 (326 SE2d 585). See Burson v. State, 183 Ga. App. 647 (1) (359 SE2d 731). Further, we find no grounds for reversal in defendant’s enumeration of errors. First, the trial court did not err in denying defendant’s motion in limine because an individual may not avoid prosecution for operating a motor vehicle in this State after having been declared a habitual violator by obtaining a valid license from another state. Goblet v. State, 174 Ga. App. 675 (331 SE2d 56). Second, the trial court did not err in charging OCGA § 40-5-65 as the evidence authorized such an instruction. See Parks v. State, 180 Ga. App. 31, 32 (5) (348 SE2d 481). Finally, evidence showing that defendant drove a motor vehicle in the State of Georgia after having been declared a habitual violator authorized the jury’s finding that defendant is guilty, beyond a reasonable doubt, of operating a motor vehicle after having been declared a habitual violator in violation of OCGA § 40-5-58. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Dupont K. Cheney, District Attorney, for appellee.


author: McMurray, Presiding Judge. Sognier, Chief Judge, Andrews, Judge,

text:
    A91A1601.
    A92A0259.
    THOMPSON v. HARDY CHEVROLET-PONTIAC-BUICK, INC. FALLS et al. v. THOMPSON et al.
    (417 SE2d 358)
   McMurray, Presiding Judge.

Christopher K. Thompson, by next friend Faye K. Thompson, and Harold Thompson and Faye K. Thompson, individually, brought an action against Gregory N. Falls, Cholie Falls and Hardy Chevrolet-Pontiac-Buick, Inc. (“Hardy Chevrolet”), alleging that Hardy Chevrolet sold Cholie Falls a used car with defective brakes and that the defective brakes and negligent operation of the vehicle by defendant Cholie Falls’ son, Gregory N. Falls, resulted in a collision, seriously injuring 11-year-old Christopher K. Thompson. Hardy Chevrolet and the Fallses filed separate answers, denying material allegations of the complaint. Cholie Falls filed a cross-claim against Hardy Chevrolet for “contribution and/or indemnification.” The evidence adduced at a jury trial revealed the following:

On August 1, 1987, Cholie Falls and her 16-year-old son, Gregory N. Falls, went to Hardy Chevrolet’s automobile dealership and Gregory N. Falls test drove a previously owned 1984 Mercury Cougar automobile. Ms. Falls asked Don Hannah, a Hardy Chevrolet used car salesman, “if [she] could take [the Mercury to an independent mechanic for inspection] and he said, no problem ... we have nothing to hide.” Mr. Hannah also said, “I don’t feel it necessary, but if you want to take it, you’re welcomed to take it.” Mr. Hannah explained, “if there’s a problem[, it] will automatically be fixed . . ., we’re not going to jeopardize [the] reputation of Hardy Family’s Chevrolet by letting a car get out with bad brakes or anything else bad.” Mr. Hannah told Ms. Falls “that the brakes would automatically be checked out.”

On August 3, 1987, Ms. Falls’ mechanic, Shahrooz Shawn Ataei, did “a visual inspection” of the Mercury and he determined that the tires “were in bad condition [and that] the front bearings [were] noisy.” Mr. Ataei mentioned the brakes, but Ms. Falls “told him not to take the wheels off [for an inspection of the brakes], that Hardy Chevrolet would be doing that.”

Ms. Falls returned the car to Hardy Chevrolet and gave Mr. Hannah a list of needed repairs, including a request for an inspection of the brake system. Mr. Hannah informed Ms. Falls that Hardy Chevrolet was responsible for “the brakes [and] transmission,” but that some of the repairs would have to be paid “out of his commission. . . .” Ms. Falls also talked to Johnny Hardy, a corporate officer of Hardy Chevrolet, and Mr. Hardy “assured [Ms. Falls] that the car was in good shape and that. . . they would make sure the vehicle was in good shape.” Mr. Hardy informed Ms. Falls “that if it wasn’t a good vehicle to begin with that he would [sic] have it on the auction lot.”

Ms. Falls expressed reservations to Mr. Hannah about purchasing a used car because of repair costs in the near future. Mr. Hannah then “introduced a warranty [for $550] that would give [Ms. Falls] peace of mind knowing that if anything major happened that it would . . . not only [be] covered but paid for.” Mr. Hannah “said, . . . this $550, it does not mean anything . . . now, true, I’m going to get a commission off of this car if you buy it, but this warranty, I do not get anything from it; neither does Hardy Chevrolet [, all] this money goes into the warranty.” Ms. Falls decided to purchase the car and the warranty. However, Mr. Hannah informed Gregory N. Falls that the vehicle would not be ready for delivery until 5:00 p.m. on August 4, 1987, explaining that “we’ve got to give the mechanics time to do their job.”

Ms. Falls and Gregory N. Falls returned to Hardy Chevrolet on August 4, 1987, and “Johnny Hardy assured [them] that all the mechanical work had been done. ...” Ms. Falls then took delivery of the vehicle and, that evening, Gregory N. Falls drove the car on a long-distance trip to Florence, Mississippi.

On Friday evening, August 7, 1987, Gregory N. Falls returned home from Mississippi and informed his mother that there was “a sound coming from the back of [the] car.” The next morning, Ms. Falls contacted Mr. Hannah and advised him of a sound (“scraping noise”) coming from the back of the car. Mr. Hannah responded, “don’t worry, mom, everything mechanically is fine; it’s all been checked out; it’s nothing major [and] to just not worry and [on] Monday morning when Greg [brings] the vehicle in . . . they [will] listen to it and check the vehicle out again.”

On August 8, 1987, Gregory N. Falls drove the car into a curve on a rain slick highway. He applied the brakes and lost control of the vehicle. The car went off the road and collided into an embankment. Eleven-year-old Christopher Thompson was a passenger in the car. He suffered serious injuries.

After the collision, Mr. Ataei inspected the wrecked vehicle’s braking system and determined that the brakes had not been inspected since the car had “left the assembly line.” (Mr. Ataei testified that a temporary pin used to hold the brake drums in place during manufacture of the vehicle remained in place, indicating that the brake drums had not been removed after assembly. He testified that the brake drums must be removed for proper inspection of the brake system.) Mr. Ataei also discovered that the rear brakes were in poor condition and that part of the rear braking system was so worn that it did not “have any brake . . . effect on [the] wheel.” Two other mechanics inspected the wrecked vehicle and affirmed that the rear braking system was in very bad shape. In fact, Engineer Luther Offey Cox, Jr., discovered that some of the brake “rivets [had] already worn in and grooved the drum[, showing] that [the brake] lining is way beyond the safe use of this brake system and should have been replaced long before this incident occurred.” Mr. Cox determined that the poor condition of the brakes may result in “a grabbing effect” and that wet weather conditions would result in “unpredictable . . . braking [performance], especially between the left and right rear sides of the automobile.” He concluded that “these brakes would definitely enter into a possible loss of control of the vehicle as it came into that curve and the brakes were applied.”

At the conclusion of the Thompsons’ evidence, the trial court granted a directed verdict against the Thompsons on their claim against Hardy Chevrolet for fraudulent concealment and misrepresentation of fact. The jury subsequently returned a verdict for Harold Thompson and Faye K. Thompson in the amount of $30,000 on their claims against Cholie Falls and Gregory N. Falls. The jury returned a verdict for Christopher K. Thompson, by next friend Faye K. Thompson, in the amount of $47,500 on his claims against Cholie Falls and Gregory N. Falls. The jury returned a verdict in favor of Hardy Chevrolet on Cholie Falls’ cross-claim for “contribution and/or indemnification.”

Christopher K. Thompson, by next friend Faye K. Thompson, appealed in Case No. A91A1601. Gregory N. Falls and Cholie Falls filed an appeal in Case No. A92A0259 after the denial of their joint motion for judgment notwithstanding the verdict or for new trial. Held:

Case No. A91A1601

1. Christopher Thompson, by next friend Faye K. Thompson, contends the trial court erred in directing a verdict in favor of Hardy Chevrolet.

The Thompsons contend in the pre-trial order that Hardy Chevrolet “was guilty of perpetrating a fraud upon Cholie Falls in the sale of the vehicle or made fraudulent misrepresentation as to the condition of the automobile. . . .” It is from this claim that the trial court granted Hardy Chevrolet’s motion for directed verdict, holding that the Thompsons’ claim against Hardy Chevrolet “is all predicated on knowledge, and there’s no evidence at all of any knowledge on the part of Hardy that there was a problem with the brakes.” This finding ignores the Thompsons’ claim that Hardy Chevrolet negligently informed Cholie Falls that the brakes on the vehicle she purchased had been inspected and were in good working order.

The Thompsons stipulated in the pre-trial order that their action against Hardy Chevrolet was based in fraud and on breach of an implied warranty of merchantability. However, under a heading in the pre-trial order designated, “Specifications of negligence . . the Thompsons contend, in pertinent part, that Hardy Chevrolet was negligent “[i]n selling the Mercury automobile without examining the brakes knowing said automobile was to be driven by a youthful driver; . . . [i]n wilfully and fraudulently representing to the Defendant Cholie Falls that the vehicle was in good mechanical condition and safe to drive when the brakes were in fact defective and dangerous, an act which [Hardy Chevrolet] knew might endanger the life and safety of Cholie Falls but also other members of the public including [the Thompsons]; . . . [i]n negligently delivering said vehicle with defective brakes thereby endangering [the Thompsons] and others, an act which [Hardy Chevrolet] knew might endanger the life and safety of Cholie Falls but also other members of the public including [the Thompsons; i]n wilfully or negligently misleading Cholie Falls by telling her on August 8, 1987, that the scraping noise was nothing to worry about because everything had been done to the car, an act which [Hardy Chevrolet] knew might endanger the life and safety of Cholie Falls but also members of the public including [the Thompsons].”

Section 311 of the Restatement of the Law, Second, Torts, provides as follows: “(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should expect to be put in peril by the action taken. (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.” In the case sub judice, there is sufficient evidence to support a claim that Hardy Chevrolet negligently misrepresented facts involving risk of physical harm to others.

Ms. Falls testified that she relied on Hardy Chevrolet’s representations that the brakes on her used car had been inspected and were in good condition. This evidence and testimony that the brakes had not been inspected since the vehicle’s manufacture and evidence that the car’s poor braking condition contributed to the collision raise genuine issues of material fact as to Hardy Chevrolet’s liability for negligent misrepresentation involving risk of physical harm to others. See Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716, 719 (2) (89 SE2d 816). Consequently, the trial court erred in granting Hardy Chevrolet’s motion for directed verdict in Case No. A91A1601. This case must be reversed and remanded for a new trial on Christopher Thompson’s, by next friend Faye K. Thompson, claim against Hardy Chevrolet.

2. Christopher Thompson, by next friend Faye K. Thompson, contends the trial court “erred in refusing to permit [his attorney] to cross-examine [Hardy Chevrolet’s] agent in regard to the profit of Hardy [Chevrolet] and its salesman from the sale of the warranty.” We agree.

“Any evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. Allen v. State, 137 Ga. App. 755, 756 (244 SE2d 834). Moreover, where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. Lovejoy v. Tidwell, 212 Ga. 750, 751 (95 SE2d 784); Cravey v. J. S. Gainer Pulpwood Co., 128 Ga. App. 465 (4) (197 SE2d 171).” Kelly v. Floor Bazaar, 153 Ga. App. 163, 165 (264 SE2d 697).

In the case sub judice, the Thompsons allege that Hardy Chevrolet misrepresented material facts regarding the condition and an inspection of a used automobile. Consequently, evidence challenging the validity of a Hardy Chevrolet used car salesman’s representation that neither he nor Hardy Chevrolet “get anything from [the warranty and that all] this money goes into the warranty” is relevant as it tends to show a scheme of fraudulent conduct aimed at inducing Ms. Falls to purchase a Hardy Chevrolet used car. Such evidence may also be relevant for impeachment purposes.

Case No. A92A0259

3. The Fallses contend there was no evidence to authorize a finding that Gregory N. Falls caused the collision. This contention is without merit.

“On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict we will uphold the judgment. [Cit.]” Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696). The manner and speed at which an automobile is being operated may be established by circumstantial evidence. Shockey v. Baker, 212 Ga. 106, 108 (4), 110 (90 SE2d 654). In the case sub judice, Gregory N. Falls testified that he lost control of his mother’s vehicle while attempting to negotiate a curve on a rain slick road. Photographs of the collision scene reveal that the vehicle crashed through a highway guard rail and careened into a ditch, causing extensive damage to the guard rail and the automobile. The photographs also indicate that the vehicle traveled a substantial distance after flipping over the guard rail. This evidence was sufficient to authorize a finding that Gregory N. Falls drove his mother’s vehicle at a speed greater than was reasonable and prudent under conditions existing at the time of the collision. See OCGA § 40-6-180. Consequently, the trial court did not err in failing to grant a new trial on the Thompsons’ claims against the Fallses. See OCGA §§ 5-5-20 and 5-5-21.

4. In their second enumeration, the Fallses contend the verdict is contrary to law and argue that “[t]he jury erred in its verdict as to the allowance of damages to Mr. and Mrs. Thompson, as the jurors considered Mr. and Mrs. Thompson’s pain and suffering and emotional trauma as an element of damages.”

There is no reference to the transcript supporting the allegation that the jury considered “pain and suffering and emotional trauma as an element of damages.” Consequently, this enumeration will not be considered. Llano v. DeKalb County, 174 Ga. App. 693 (2) (331 SE2d 36).

5. Next, the Fallses contend the trial court erred in failing to give their requested charge on sudden emergency.

“[A]n instruction [on sudden emergency] is authorized where there is evidence that a party ‘was required to make quick judgments on the immediate action to be taken without having time for mature reflection.’ Reece v. Callahan, 164 Ga. App. 131, 132 (296 SE2d 425) (1982).” Martini v. Nixon, 185 Ga. App. 328, 329 (3) (364 SE2d 49) (1987). In the case sub judice, Gregory N. Falls did not testify that brake failure impaired his ability to react to a suddenly dangerous road condition. He testified that he lost control of his mother’s vehicle after applying the brakes while traveling through a curve on a rain slick road. These circumstances may authorize a charge on accident, i.e., that the collision was not caused by Gregory N. Falls’ negligent acts or omissions, but they do not authorize a charge on sudden emergency.

6. In support of their fourth enumeration, the Fallses argue “[t]he jury’s verdict was not arrived at independently but rather was based upon the submission of each juror of a certain figure or award, then these figures were summed up and then divided by six (6).” There is no reference to the transcript in support of this allegation. Consequently, “this enumeration of error will not be considered. See Rule 15 (c) (3) of this court.” Llano v. DeKalb County, 174 Ga. App. 693 (2), 694, supra.

7. The Fallses contend “[t]he trial Court erred in not giving the jury written instructions when requested by the jury.”

There is no citation of authority or argument supporting this enumeration. Instead, an argument is submitted which improperly raises a contention not included in the enumerated error.' Pope v. Triange Chem. Co., 157 Ga. App. 386 (1) (277 SE2d 758). “Accordingly, this enumeration of error is deemed to have been abandoned pursuant to Rule 15 (c) (2) of this court.” Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807).

8. In their sixth enumeration, the. Fallses contend the trial court erred in refusing to permit deposition testimony of David M. Cowen.

There is no reference to the transcript showing exclusion of David M. Cowen’s deposition testimony. “In the absence of such references to the transcript, this enumeration of error will not be considered. See Rule 15 (c) (3) of this court.” Llano v. DeKalb County, 174 Ga. App. 693 (2), 694, supra.

9. The Fallses consolidate their seventh and eighth enumerations, contending the trial court erred in granting Hardy Chevrolet’s motion in limine excluding “testimony concerning the oral contract and warranties for the inspection and repair of the brakes of the Fallses’ vehicle. . . .”

The trial transcript reveals a favorable ruling on Hardy Chevrolet’s pre-trial motion to exclude parol evidence which contradicts or varies the terms of disclaimer provisions of a sales agreement between Hardy Chevrolet and Ms. Falls. However, the Fallses’ brief does not make reference to an offer of proof regarding specific evidence excluded by the trial court. This omission makes guess-work of appellate review. See Rosequist v. Pratt, 201 Ga. App. 45 (1) (n. 1) (410 SE2d 316). Nonetheless, we address this enumeration based on Hardy Chevrolet’s request to exclude all testimony regarding “the salesman’s representations that the brakes were in perfect condition. ...”

“In order for an error to be grounds for reversal, the defendant must show error and ensuing harm. Burnette v. State, 165 Ga. App. 768 (302 SE2d 621).” Robinson v. State, 176 Ga. App. 18 (335 SE2d 303). In the case sub judice, Ms. Falls testified that Johnny Hardy and Mr. Hannah assured her that the vehicle she was purchasing was in good condition and that the vehicle’s brakes were in good working order. This evidence was admitted in apparent contradiction of the trial court’s pre-trial ruling on Hardy Chevrolet’s motion in limine. Under these circumstances, we find no harmful error in the trial court’s grant of Hardy Chevrolet’s motion in limine.

10. In their ninth enumeration, the Fallses contend “[t]he trial court erred in excluding testimony concerning oral contract and warranties for inspection and repair of brakes of the Fall’s [sic] vehicle.”

There is no reference to the transcript in support of this enumeration. Consequently, it “will not be considered. See Rule 15 (c) (3) of this court.” Llano v. DeKalb County, 174 Ga. App. 693 (2), 694, supra.

11. The Fallses contend the trial court erred in allowing Officer Randall Mark Krueger of the Cobb County Police Department testify and give an opinion as to the cause of the collision. The Fallses argue that they were unfairly surprised by Officer Krueger’s testimony because he was not listed as an expert witness in the pre-trial order. The contention is without merit.

Although Officer Krueger was not listed as an expert witness in the pre-trial, he was listed as a potential witness for Hardy Chevrolet. Further, the Fallses were given an opportunity to interview Officer Krueger before the officer gave his opinion as to the cause of the collision. Under these circumstances, we cannot say that the Fallses were unfairly surprised when Officer Krueger gave an opinion as to the cause of the collision. See Myers v. State, 184 Ga. App. 618, 621 (6) (362 SE2d 92).

Judgment reversed in Case No. A91A1601. Judgment affirmed in Case No. A92A0259.

Sognier, C. J., and Andrews, J., concur specially.

Sognier, Chief Judge,

concurring specially.

I concur with the conclusion of the majority in Case No. A91A1601 but not for the reasons set forth by the majority. I find the case presented by the Thompsons stated a claim for negligent inspection and repair, not fraudulent or negligent misrepresentation.

The Thompsons’ original complaint alleged claims of fraud, negligence, and breach of warranty against Hardy Chevrolet. The trial court subsequently granted partial summary judgment to Hardy Chevrolet on the fraud claim because Hardy Chevrolet made no representations to the Thompsons on which they could have relied and on the breach of warranty claim because of a lack of privity. Thus, at trial the only claim remaining against Hardy Chevrolet was the Thompsons’ allegation that Hardy Chevrolet negligently failed to inspect the brakes and negligently failed to discover the defect before delivering the car to the Fallses.

Although as a general rule no privity is required to support a tort action, OCGA § 51-1-11 (a), “if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract.” Id.; see Sims v. American Cas. Co., 131 Ga. App. 461, 479-481 (5) (206 SE2d 121) (1974). Since the Thompsons’ claim arose from the contract between Hardy Chevrolet and the Fallses, they are entitled to recover only if they can establish the violation of a duty independent of the contract. Such an independent duty may arise at common law “because of the relationship between the parties, or because of defendant’s calling or because of the nature of the harm. [Cit.]” Sims, supra at 480.

Our courts have recognized that automobile dealers who are not manufacturers have no obligation to test vehicles they purchase for resale for the purpose of discovering latent or concealed defects. Holman Motor Co. v. Evans, 169 Ga. App. 610, 613-614 (2) (c) (314 SE2d 453) (1984). However, if a dealer does undertake to inspect or test its merchandise, it must do so nonnegligently, and it will “ ‘be liable for any patent defect which the inspection(s) might reveal and could be negligent for not discovering such defects as might reasonably have been unearthed.’ [Cits.]” Id. at 614. Likewise, when a dealer undertakes to repair a vehicle it sells, the dealer “ ‘owes an original duty to the public to use ordinary care in making repairs so as not to endanger the person or property of others by his negligent performance, when the consequences of such conduct may be foreseen.’ ” General Motors Corp. v. Jenkins, 114 Ga. App. 873, 879 (152 SE2d 796) (1966). Both Holman and GMC v. Jenkins extended liability of car dealers for negligent inspection or repairs to third party passengers injured in collisions resulting from defects in vehicles sold by the dealers.

At trial, evidence was adduced that Hardy Chevrolet claimed to have inspected the car and made all necessary repairs, and specifically that Hardy Chevrolet claimed to have inspected the brakes and found them to be in good condition. The Thompsons also presented evidence that the brakes were defective, that they had not been inspected, and that an inspection would have uncovered the defect. Additionally, the jury would have been authorized to conclude that the injuries Christopher Thompson suffered were a foreseeable result of the brake failure. The Thompsons thus set forth a negligence claim sufficient to be presented to the jury, see Holman, supra; J. C. Lewis Motor Co. v. Simmons, 128 Ga. App. 113 (195 SE2d 781) (1973), and accordingly the direction of a verdict for Hardy Chevrolet was error.

Andrews, Judge,

concurring specially.

In his special concurrence, Chief Judge Sognier correctly identifies ordinary negligence as the only theory of recovery upon which the Thompsons could have proceeded at trial — a theory never clearly articulated by the Thompsons below or in this court, and only barely sustained by a liberal construction of the pleadings. Negligence being the sole remaining basis for the Thompsons’ claim against Hardy Chevrolet in Case No. A91A1601,1 disagree with the majority’s analysis in Division 2. What profit Hardy Chevrolet made on the sale of the warranty has no relevance to the negligence claim.

Decided March 6, 1992

Reconsiderations denied March 20, 1992 and March 24, 1992.

Kyle Yancey, for the Thompsons.

Gray, Gilliland & Gold, David S. Currie, for Hardy Chevrolet.

Joe O’Connor, for the Fallses.

       The Thompsons note in the pre-trial order that they “do not contend that they have a right of action against Hardy for fraud or breach of warranty, what [we] contend is that while Hardy was defrauding its customer in regard to safety of the vehicle and breaching its warranty in regard to safety of the vehicle it knew such conduct might cause injury to others which conduct was wilful and negligent and constitutes a tort against [the Thompsons].”


author: Andrews, Judge.

text:
    A91A1679.
    GLENS FALLS INSURANCE COMPANY v. DONMAC GOLF SHAPING COMPANY, INC.
    (417 SE2d 197)
   Andrews, Judge.

Donmac Golf Shaping Company, Inc. (Donmac) filed an action against Glens Falls Insurance Company seeking a declaratory judgment that the insurance company is obligated under a “commercial general liability” policy to provide it with a defense and coverage for liability for the alleged negligent placement and construction of a golf course project partly on federally protected “wetlands” without obtaining necessary permits to do so. Glens Falls appeals from the trial court’s order granting Donmac’s motion for summary judgment, denying the insurance company’s motion for summary judgment, and ruling that the policy provides such coverage.

After Donmac had completed its construction of the golf course project, the developer became aware of possible incursion on federally protected wetlands, and was subsequently informed by the United States Corps of Engineers that substantial areas of the project were built on wetlands without necessary permits in violation of federal law. The United States sued the developer for violation of various federal statutes protecting the wetlands. A consent decree was entered in that case whereby the developer was required to undertake restoration work to some of the affected wetlands at the site of the project, and was further required, as off-site mitigation, to create other wetland areas away from the site of the project. The developer sued the engineering firm responsible for engineering work on the project, the architect who designed the project, and Donmac which was hired to construct the project.

The allegations of the complaint filed against Donmac provide the basis for determining whether liability exists under the terms of the policy. Great Am. Ins. Co. v. McKemie, 244 Ga. 84, 85-86 (259 SE2d 39) (1979). The complaint alleges that Donmac, as the contractor hired to construct the project, negligently failed to exercise the ordinary care required of contractors under like circumstances by constructing the project in the wetland areas without obtaining the necessary permits and in violation of federal law. As a consequence, the complaint alleges that the developer has suffered out-of-pocket expenses to mitigate the illegal wetland development in that it has been required: to undertake restoration and preservation of certain areas within the project; to eliminate certain proposed residential lots in the project, and to purchase additional land outside the project for similar preservation purposes. The developer also alleges that it has suffered a substantial reduction in the fair market value of the project, and that delay to the project caused by the illegal development has resulted in increased debt service carrying costs on the project. For these damages the developer seeks a monetary award jointly and severally against each defendant of not less than $5,000,000.

1. Glens Falls argues that the policy provides no coverage because Donmac intended to build the project where it stands. The commercial general liability (CGL) policy at issue provides coverage for “property damage” caused by an “occurrence.” An occurrence is defined''as an “accident,” while the policy otherwise excludes coverage for property damage “expected or intended from the standpoint of the insured.” This argument is without merit. There is no evidence that the resulting damage alleged by the developer was intended or expected by Donmac. The issue is not whether Donmac intended to build the project in its present location according to the project specifications, but whether Donmac had the specific intent called for by the policy to cause the alleged damages. Southern Guar. Ins. Co. of Ga. v. Saxon, 190 Ga. App. 652, 653 (379 SE2d 577) (1989). Donmac’s sole stockholder testified by deposition that the company had no knowledge prior to or during construction that the project was laid out partly on wetlands. Although he had some knowledge about what constituted wetlands from a previous construction project, he testified that the present project did not contain the type of land that he had previously understood to be wetlands. “ ‘[T]he mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.’ ” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982) (quoting Prosser, The Law of Torts). The deposition testimony of Donmac’s representative being the only evidence of the insured’s subjective intent, we find the exclusion does not apply. Southern Guar., supra at 654.

2. Glens Falls also asserts that no coverage is provided because the complaint alleges that Donmac’s negligence amounted to a failure to comply with the standards of ordinary care for similar contractors under the circumstances. Without pointing to any provision of the policy, the insurance company asserts that this is a professional negligence action which is not covered by the policy. We find no basis for denying coverage just because expert testimony may be utilized to prove allegations that the claimed damages were caused by Donmac’s negligent deviation from a general standard of care for contractors.

3. Property damage is defined in the policy as “[p]hysical injury to tangible property including all resulting loss of use of that property; or [l]oss of use of tangible property that is not physically injured.” Glens Falls first claims that the complaint against Donmac makes no allegation of property damage. Clearly, the complaint alleges that the negligent construction of the project on wetlands caused losses due to physical damage and loss of use to the project. See Haley v. Ga. Farm Bureau Mut. Ins. Co., 166 Ga. App. 596, 598-599 (305 SE2d 160) (1983); Southeastern Color Lithographers v. Graphic Arts. Mut. Ins. Co., 164 Ga. App. 70 (296 SE2d 378) (1982). Second, the insurance company claims that coverage was excluded under the following provisions of the policy which exclude coverage for property damage to: “j. (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” The policy provides that the exclusion in paragraph (6) does not apply to property damage included in the “products-completed operations hazard.” Under the policy definition, the “products-completed operations hazard” includes property damage occurring away from premises owned or rented by Donmac arising out of work completed by Donmac. Although Donmac did not own or lease the project, the alleged illegal construction of the project on wetlands obviously occurred contemporaneously with the work being performed on the project. Since the work was not completed when the damage was incurred, the “products-completed operations hazard” exception to the exclusion in paragraph (6) does not apply. See Southern Guar. Ins. Co. v. Nixon, 194 Ga. App. 398, 400 (390 SE2d 638) (1990).

Glens Falls also claims that the policy excludes coverage for property damage under paragraphs m. and n. Paragraph m. excludes coverage for “ ‘property damage’ to ‘impaired property’ or property that has not been physically injured arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in . . . ‘your work.’ ” Under paragraph n. the policy excludes coverage for “[d]amages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1) ‘Your product’; (2) ‘Your work’; or (3) ‘Impaired property’; if such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known defect, deficiency, inadequacy or dangerous condition in it.” Under the policy definition “ ‘Impaired property’ means tangible property other than ‘your product’ or ‘your work’ that cannot be used or is less useful because: a. It incorporates ‘your product’ or ‘your work’ that is known or thought to be defective, deficient, inadequate or dangerous;”

The exclusions from coverage for property damage contained in paragraphs j., m. and n. and other similar exclusions in the CGL policy are generally referred to as “business risk” exclusions, and are designed to exclude coverage for defective workmanship by the insured causing damage to the project itself. Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., 182 Ga. App. 220, 223 (355 SE2d 130) (1987); Elrod’s Custom Drapery Workshop v. Cincinnati Ins. Co., 187 Ga. App. 670 (371 SE2d 144) (1988). The principle behind such exclusions is based on the distinction made between two kinds of risk incurred by a contractor such as Donmac. The first is the business risk borne by the contractor to replace or repair defective work to make the building project conform to the agreed contractual requirements. This type of risk is not covered by the CGL policy, and the “business risk” exclusions in the policy make this clear. Gary L. Shaw, supra at 224. The second is the risk that the defective or faulty workmanship will cause injury to people or damage to other property. Because of the potentially limitless liability associated with this risk, it is the type for which CGL coverage is contemplated. Weedo v. Stone-E-Brick, Inc., 405 A2d 788, 791 (N. J. 1979). “While it may be true that the same neglectful craftsmanship can be the cause of both a business expense of repair and a loss represented by damage to persons and property, the two consequences are vastly different in relation to sharing the cost of such risks as a matter of insurance underwriting. . . . The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient product or work. This liability, however, is not what the coverages in question are designed to protect against. The coverage [applicable under the CGL policy] is for tort liability for . . . [injury to persons and damage to other property] and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained. . . .” (Punctuation and citation omitted.) Weedo, supra at 791.

Here, the policy exclusions applicable to property damage at paragraphs j., m. and n. exclude coverage for damage to or impairment of the project as a result of defective work done by Donmac. See Houston Bldg. Svc. v. American Gen. Fire &c. Co., 799 SW2d 308 (Tex. Ct. App. 1990) (construing the same exclusions contáined in paragraph j. of the present policy). The complaint by the developer is not that Donmac failed to construct the project in a workmanlike manner according to the specifications provided to it, but that it negligently built part of the project on federally protected wetlands. Under the allegations of the developer’s complaint, the failure of Donmac to identify the wetlands and comply with the governing federal regulations in its construction of the project is set forth as both a breach of contract claim and a tort claim. A contractor who undertakes a construction project is required by law to exercise ordinary care not to endanger the persons or property of others. This legal duty is imposed on the contractor by the express or implied contractual relationship created when the contractor undertakes the project. The breach of this legal duty, imposed by contract, but existing in law apart from the contractual obligation, may constitute both a tort arising from the contract, and a breach of the contractual relationship itself. E. & M. Constr. Co. v. Bob, 115 Ga. App. 127 (153 SE2d 641) (1967). “[I]n such [tort] cases the injury to the plaintiff has been an independent injury over and above the mere disappointment of plaintiff’s hope to receive his contracted-for benefit.” (Punctuation and citations omitted.) Tate v. Aetna Cas. &c. Co., 149 Ga. App. 123, 125 (253 SE2d 775) (1979).

The damages alleged and the recovery sought by the developer as a result of alleged acts and omissions by Donmac far exceed the full contract price of approximately 1.2 million dollars paid to Donmac for its completed construction work. The developer’s suit does not attempt to regain its original contracted-for benefit by seeking reconstruction of the project with proper consideration given to the wetlands and the applicable federal regulations. The suit proceeds from the premise that the project has been built, the damage done, and the developer is entitled to reimbursement for damages incurred as a result of the alleged negligence. In seeking recovery for expenses of restoration and preservation of damaged wetlands at the project site, purchase and restoration of off-site wetland areas, elimination of certain encroaching areas of the project, and the resulting diminution in the fair market value of the property, the developer seeks recovery for damages over and above the scope of the benefits it contracted for with Donmac. Compare Reliance Ins. Co. v. Povia-Ballantine Corp., 738 FSupp. 523, 526-527 (S. D. Ga. 1990) (discussing Gary L. Shaw, supra, and Elrod’s, supra, and finding no coverage under CGL policy where all the claimed damages related directly to repairing or replacing the insured’s defective work); Elrod’s, supra at 671 (no coverage under the CGL policy because damages sought arose exclusively from insured’s faulty workmanship). For example, in Reliance Ins. Co. the damage sought was return of the purchase price and related expenses on a condominium defectively constructed by the insured. In Elrod’s the insured manufactured and sold defective fabric to a business which sued the insured for damages, including lost profits, after its customers rejected the fabric. In Gary L. Shaw the contractor, who was insured under a CGL policy, was sued for correction of defects in the insured’s construction of a house. In the three previous cases, in which no CGL coverage was found, the damages sought against the insureds were all directly related to correcting or repairing their deficient work or product. In this sense the damages were calculated to make good the contractual promises made by the insureds to the plaintiffs and were within the scope of those contractual expectations. By contrast, the damages sought by the developer against Donmac are not directly related to the cost of repairing and replacing deficiencies in Donmac’s work on the project — and therefore excluded from the CGL coverage as business risks — but rather are claims beyond the scope of the contractual expectations for additional tort damages caused by the alleged deficiencies in Donmac’s performance. “ ‘Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.’ ” Alley v. Great Am. Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981). Viewing the damages sought by the developer in this light, we find the CGL policy exclusions at issue are “business risk” exclusions not applicable to the type of tort damages sought.

Decided March 12, 1992

Reconsideration denied March 24, 1992

Alexander & Vann, William C. Sanders, for appellant.

Floyd B. Moon, Young, Clyatt, Turner, Thagard & Hoffman, William A. Turner, Jr., for appellee.

Accordingly, the trial court was correct in granting summary judgment in favor of Donmac, denying Glens Falls’ motion for summary judgment, and determining that the CGL coverage applies.

Judgment affirmed.

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

       The complaint also contained a breach of contract claim, but the parties agree that there is no coverage under the policy for the breach of contract claim.