text:
    A90A1112.
    WHATLEY v. THE STATE.
    (395 SE2d 582)
   Birdsong, Judge.

Appellant, Dallas Lee Whatley, appeals his conviction of trafficking in cocaine, in violation of the Georgia Controlled Substances Act, and of possession of a firearm during the commission of a felony involving the possession of a controlled substance as provided in OCGA § 16-13-31, said offense being in violation of OCGA § 16-11-106 (b) (4).

Certain Atlanta police officers were en route to a known drug activity area, having received information that a person named “Dallas” was selling drugs in the area at night. While en route, a radio call was received that a juvenile or juveniles had discharged a firearm at an address within the drug activity area.

Upon arriving at the address, the officers observed appellant either outside the building or in the hallway with a pistol in his hand. Appellant immediately entered a nearby apartment; two police officers followed. Appellant ran into a bedroom and threw the pistol down. He resisted an attempt to frisk him, was forcibly restrained, handcuffed, and forced onto the floor. The pistol was loaded with a round in the chamber. Appellant was carrying a holster with additional clips of ammunition, and a pouch containing certain personal jewelry and $2,654, a large quantity of which was in small denominations.

While appellant was being taken outside, a confidential informant told policemen that appellant had recently driven a brown Cadillac, which contained drugs, to the building. The Cadillac was found parked in a driveway to a parking lot in front of the building. An Oldsmobile Cutlass Supreme was parked approximately three to five feet behind the Cadillac. A key ring containing the Cadillac keys and control boxes to the car’s alarm system was found on appellant. The Cadillac alarm went off as the officers opened the car with the keys. Crack cocaine, wrapped in nineteen baggies, was found inside a brown paper bag and under the hood of the car. The cocaine was 80 percent pure and weighed 519 grams. In the meantime, the informant informed the police that the Oldsmobile Cutlass also belonged to appellant, that appellant had driven it to that location, and that this vehicle also contained drugs. A shoe box containing eight sandwich bags of cocaine, one sandwich bag of crack cocaine, and $3,160 was found in the trunk of the Oldsmobile. The total weight of the cocaine was approximately 200 grams, and it was 76 percent pure cocaine.

Appellant presented evidence that the Oldsmobile was a car appellant had rented while a window in his wife’s brown Cadillac was being repaired, and the drugs were placed there by a friend to whom he had loaned the car. His friend, currently in jail for a parole violation, testified that the box of drugs had been placed in the car without appellant’s knowledge; however, the friend denied knowing anything about the money. Appellant denied any knowledge of the cocaine in either vehicle. His explanation for the presence of drugs in the Cadillac was that they must have been planted there when an unknown person or persons broke the window and burglarized the car. He believes that he could have been framed by a man named “Buster,” as he got into an argument with “Buster” when the latter tried to sell drugs to his brother. Appellant admitted in open court that he had the loaded gun in his hand when he first saw the police officers, that he “ran back . . . toward the bedroom . . . and [threw] the gun [down],” and that he had extra clips of ammunition on his person. Held:

1. Appellant asserts that the trial court’s failure to require disclosure of the identity of the confidential informant violated his Sixth Amendment right of confrontation.

Review of the transcript reveals that both appellant’s written motion to suppress and motion to disclose informant asserted that, in fact, there was no informant. Appellant maintained that the police were merely asserting the existence of an informant in order to cure a deficiency in its affidavit in support of search warrant. Subsequently during the suppression motion hearing, appellant, through his counsel, made an admission in judicio that “[w]e have discovered the identity of the so-called informant. The so-called informant is none other than Darren Marshall.” (Emphasis supplied.) Appellant subsequently called Darren Marshall as a witness at the suppression hearing, and Marshall testified that at no time did he mention appellant’s name to the police or tell them that appellant was dealing in drugs. At no time did appellant assert on the record that his Sixth Amendment right of confrontation was being violated by nondisclosure of the identity of the informant.

As the Sixth Amendment issue of confrontation was not expressly raised at trial and ruled upon, there exists nothing for us to review. See generally Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629); Weaver v. State, 179 Ga. App. 641 (7) (347 SE2d 295).

Appellant argues in its brief that disclosure of the informant also denied him the opportunity to present a sole and necessary witness in his behalf, and therefore constituted error within the meaning of Moore v. State, 187 Ga. App. 387 (370 SE2d 511). The case sub judice clearly is distinguishable from the facts of Moore. Further, we find no evidence that this issue was ever specifically raised in the trial court, and therefore it is not preserved upon appeal. Ray, supra; Weaver, supra.

Additionally, at trial appellant testified in his own behalf and in essence asserted that in regard to the drugs found in the Cadillac, he was framed. He further testified that he had a confrontation with the man known as “Buster,” (who apparently was Darren Marshall) and that someone must have planted the drugs in the Cadillac when it was broken and burglarized earlier that morning. It was the man with whom he. had the confrontation who was talking with the police and who pointed right at him, and it was this man who framed him. In determining whether, in this case, it was error to fail to disclose the identity of the informant for use by a defendant in presenting his defense, we again will use the balancing test and the factors considered in Roviaro v. United States, 353 U. S. 53, 62 (77 SC 623, 1 LE2d 639). “In addition, the court may consider as a relevant balancing test factor that, in the absence of a contrary showing, a witness ‘cannot reasonably be expected to appear in court and incriminate himself.’ [Cit.] The appellate court, in determining the propriety of disclosing the identity of an informant, may consider all relevant evidence contained in pretrial, trial and post-trial proceedings.” Walton v. State, 194 Ga. App. 490, 491 (1) (390 SE2d 896); see Moore, supra at 389 and 391. Applying this test, we are satisfied, under all the relevant circumstances, that in this case the trial court did not err in refusing to disclose the identity of the confidential informant for use in appellant’s defense.

2. Appellant asserts that the trial court erred in failing to charge properly and completely on the definition of circumstantial evidence and on the type of circumstantial evidence necessary to prove guilt beyond a reasonable doubt.

The charge to the jury included an instruction pertaining to circumstantial evidence. Subsequently, the trial court inquired whether the parties had any exceptions to the charges. Appellant elected not to reserve the right to object to the charges until motion for new trial or on appeal; rather he took three exceptions thereto, none of which included the error herein enumerated. Accordingly, appellant’s assertions of error to the circumstantial evidence charge given to the jury and to the trial court’s failure to amplify the circumstantial evidence charge are waived. Pruitt v. State, 258 Ga. 583, 590 (14) (373 SE2d 192); Wright v. State, 182 Ga. App. 570 (1) (356 SE2d 531).

3. Appellant asserts that the trial court erred in denying his motion for directed verdict with respect to the count charging appellant with violation of OCGA § 16-11-106 (b).

At the outset we note that at trial appellant made no constitutional challenge to the statute, either on the grounds of vagueness or of overbreadth, and made no claim that the statute was unconstitutional as applied to him. Neither has he asserted such issues in his brief. “[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311).

Moreover, pretermitting any issue of whether OCGA § 16-11-106 (b) requires proof of a reasonable nexus between the possession of the weapon and the averred drug violation is the fact that the evidence in this case, viewed in the light most favorable to supporting the verdict as required upon appellate review, establishes a reasonable nexus between appellant’s possession of the weapon and the averred drug violation.

Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). This enumeration is without merit.

4. Appellant asserts that the trial court erred in denying his motion to suppress because the search under the hood of a vehicle is not consistent with the rationale underlying the practice of impoundment.

The evidence is in conflict as to whether the drugs were seized during the course of an inventory conducted prior to vehicle impoundment or during a warrantless search of a vehicle for contraband.

Appellant argues, inter alia, that it is inconsistent with the legitimate purpose of an inventory to look under the hood of a vehicle. An inventory search cannot be conducted as a subterfuge to enable the police to conduct a warrantless investigative search without probable cause. Gaston v. State, 155 Ga. App. 337, 339 (270 SE2d 877). However, appellant’s reliance on Arnold v. State, 155 Ga. App. 581 (271 SE2d 714) as viable precedent that a legitimate inventory can never be conducted under the hood of a car is misplaced. An inventory conducted under the hood of a vehicle, prior to or after impoundment, is not constitutionally prohibited per se. Whether such an inventory meets the standards of South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000), depends on the circumstances of each case. If the scope of the inventory was reasonably related to one of the legitimate purposes for inventory found in Opperman, and if the inventory was not conducted as a pretext or subterfuge for an illegal warrantless investigatory search, then no legitimate reason appears for declaring an inventory unreasonable merely because its scope extended under the hood of the vehicle. See generally Opperman, supra at 369, 376. Thus, an inventory has been upheld where the police, in accordance with standard police procedure, conducted an inventory under the hood of the parked vehicle to see if the battery was present. People v. Hardy, 395 NE2d 743 (A.C. Ill.) Suffice it to say that numerous legitimate reasons might exist to extend the scope of an inventory under the hood. Generally, it is reasonable to obtain motor and hidden identification numbers in order to assist or enable the police to retrieve the car in the event it should be stolen while in their custody, or to inventory any customized equipment or alarm systems that might be present and subject to vandalism while the vehicle is in impoundment.

But regardless of whether a valid inventory was conducted in this case, the trial judge ruled that the seizure of the contraband from the Cadillac was pursuant to a lawful warrantless search of the automobile. We agree. The police had probable cause to conduct a warrant-less search of the Cadillac for drugs, and any deficiency in the basis of the informant’s knowledge was more than adequately compensated by the totality of the attendant circumstances (McKinney v. State, 184 Ga. App. 607 (1) (362 SE2d 65)).

5. Appellant asserts that the trial court erred in failing to exclude appellant’s statement to the police concerning whether he possessed a gun permit, because the statement was made after the arrest was made but prior to the reading of Miranda rights. The trial court in essence found that the statements were admissible because, at the time, appellant was not in a state of custody that necessitated a Miranda warning. Rather, the court found that the statements were made immediately after a forcible “Terry pat down search,” and that the pat down was forcible because appellant “was not willing to submit.” The evidence is in conflict whether appellant was in a formal state of arrest at the time he uttered this particular statement. Moreover, the issue presented, as to whether appellant was in custody for Miranda purposes, is a mixed question of law and fact. We will not reverse the trial court’s fact findings which underpin its legal conclusion made at a suppression hearing, unless they are clearly erroneous. See Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428); Jones v. State, 184 Ga. App. 328 (361 SE2d 693). The court’s fact findings as to this issue were not clearly erroneous. Having therefore accepted those underpinning fact findings, we are satisfied that the legal conclusion of the trial court was correct.

Decided June 4, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Jonathan Goldberg, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Keith L. Lindsay, Assistant District Attorneys, for appellee.

Moreover, assuming that the trial court erred in admitting appellant’s statement that he had no permit for the weapon and that such error was of constitutional magnitude, we find that such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0055.
    BERGAN v. TIME INSURANCE COMPANY.
    (395 SE2d 361)
   McMurray, Presiding Judge.

Appellant Bergan secured coverage under a group policy of health insurance through her employer which was issued by appellee Time Insurance Company. Bergan’s coverage became effective on July 1, 1987, and continued through October of 1988, when her employment was terminated. Believing that her insurance was in effect, Bergan made an appointment with Dr. Thomas J. High, her general practitioner physician, for June 16, 1987, because she was suffering symptoms of what she thought was a bladder infection. Dr. High performed a pelvic examination and found a “mildly tender” mass on the right side of Bergan’s pelvis. Dr. High suggested that Bergan have a pelvic ultrasound examination and see a gynecologist. On June 18, 1987, a pelvic ultrasound examination was performed on Bergan and she was also examined by Dr. Fred Gober, a gynecologist. Based upon Bergan’s reporting to him that she had skipped some menstrual periods, gained weight, had bladder and kidney problems, and had been experiencing pelvic pain and discomfort during sexual activity for a year, and finding a large pelvic mass extending into the abdominal region, Dr. Gober recommended that Bergan “seriously consider” undergoing an exploratory laparotomy “to evaluate . . ., and if possible, cure the problem.” After receiving the ultrasound report several days later, Dr. High called Bergan and informed her that her pelvic mass needed to be “addressed by a gynecologist; and that this should be done sooner rather than later.”

Bergan left for a two-week vacation in Mexico; upon her return after July 1, 1987, when her insurance bécame effective, she made an appointment with Dr. Gary Bodner for further examination of her pelvic mass. This examination led to an exploratory laparotomy during which low grade cancer of the ovaries was found. Dr. Bodner called in Dr. Benedict Benigno, a pelvic oncology specialist, to aid in surgery and Bergan underwent a bilateral hysterectomy and other necessary procedures on- July 13, 1987. The next day she was informed she would have to have chemotherapy, which lasted for ten months.

Bergan filed claims for payment of all these medical bills and was informed by appellee by letter dated August 7, 1987, that coverage was being denied because under the provisions of her medical plan benefits were not available for an illness for which she “received medical care, treatment, medicine or advice during the six month period immediately prior to the effective date . . . until coverage has been in force for 12 consecutive months.” When her demand for payment under the insurance policy was denied, Bergan filed the instant suit, seeking payment of medical bills totaling almost $21,000, and damages for bad faith. This áppeal is from the denial of Bergan’s motion for summary judgment and the grant of summary judgment in favor of the insurance company. Held:

Appellee’s policy expressly excludes coverage for “preexisting conditions.” As defined therein, “A preexisting condition means an illness or injury for which medical care, treatment, medicine or advice was received during the six-month period immediately prior to the effective date of the person’s coverage under this plan. Preexisting conditions are not covered until the person has been continuously insured for 12 months.” (Emphasis supplied.) Bergan does not dispute that she was suffering from ovarian cancer prior to the effective date of her coverage, but contends that because that disease was not diagnosed prior to commencement of the policy period, she received no “medical care, treatment, medicine or advice” during the proscribed time period and is thus entitled to coverage. In support of her argument she relies upon two decisions of this court: Beggs v. Pacific Mut. Life Ins. Co., 171 Ga. App. 204, 205 (2) (318 SE2d 836) (1984), and Mutual Life Ins. Co. of N. Y. v. Bishop, 132 Ga. App. 816 (209 SE2d 223) (1974). We do not find those cases controlling because of the difference in the language of the policy exclusions.

The policy in Beggs v. Pacific Mut. Life Ins. Co., supra, excluded “coverage of treatment of a ‘disease manifested or bodily injury sustained before the insured became covered under this Coverage, unless such insured, while covered under this Coverage, completes a 90-day period during which such insured receives no medical, surgical or nursing services, and no drug or medicine obtainable only upon the prescription of a physician to treat such disease or injury. . . .’ (Emphasis supplied.)” Id. at 204. In Mutual Life Ins. Co. of N.Y. v. Bishop, supra, the policy provision excluded “coverage for charges for ‘sickness, disease, or bodily injury which required medical care or treatment during the three months immediately preceding the effective date of (Mr. Bishop’s) insurance.’ ” Id. at 816. The policy in the case sub judice excludes coverage for “an illness or injury for which medical care, treatment, medicine or advice was received prior to the effective date of coverage.” (Emphasis supplied.)

Thus, pretermitting the question of whether Bergan received medical care or treatment prior to the effective date of her coverage, we must determine whether she received “advice” concerning her illness during this period, and we conclude that she did. While the word “advice” has not been defined by Georgia law, in construing contracts “[i]f the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense. [Cits.] Dictionaries supply the plain, ordinary and popular sense. [Cit.] ” Henderson v. Henderson, 152 Ga. App. 846 (1), 847 (264 SE2d 299) (1979). “Advice” is defined as “an opinion or recommendation offered as a guide to action, conduct, etc.” (Random House Dictionary of the English Language (2d ed. 1987)); and a “[recommendation regarding a decision or course of conduct; specif., that of professional counsel.” (Webster’s New Intl. Dictionary (2d ed. 1961)). When Dr. High examined and tested Bergan, determining that her problems were being caused by a pelvic mass, he “advised” her to see a gynecologist and to have an ultrasound examination. Dr. Gober “advised” further evaluation and treatment of the problem by means of an exploratory laparotomy. Giving the language of the policy exclusion a reasonable construction without extending it beyond its plain terms, it can only be concluded that Bergan received medical advice for her illness prior to the effective date of coverage as contemplated in the exclusionary clause. See Perkins Hardwood Lumber Co. v. Bituminous Cas. Corp., 190 Ga. App. 231 (1), 232 (378 SE2d 407) (1989). Consequently, the trial court did not err in granting Time Insurance Company’s motion for summary judgment and in denying appellant Bergan’s motion for summary judgment.

Decided June 21, 1990.

Federal & Todd, Thomas R. Todd, Jr., James L. Bentley III, for appellant.

Fortson & White, Harvey S. Gray, Michael D. St. Amand, for appellee. •

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A90A0256.
    A90A0257.
    MOSS v. THE STATE. MARTIN v. THE STATE.
    (395 SE2d 363)
   Cooper, Judge.

Terry Moss and Larry Martin were tried jointly and convicted of robbery, armed robbery, burglary and aggravated assault (2 counts). Moss was also convicted of a violation of the Georgia Controlled Substances Act and driving with a suspended license. Both defendants filed separate appeals from the denial of their motions for new trial.

The evidence established that the owner of a video rental business was robbed when Martin jumped from the roof of the establishment, knocking her down and snatching her purse containing cash, checks, and a pistol. Moss and Charles Taylor were hiding in bushes nearby, and after the robbery the three fled from the scene. Later the victim identified Martin as her attacker and the purse was found in a mobile home rented by Moss. Three days later, appellants, wearing masks and gloves, entered a mobile home belonging to two men. The men were tied up with coat hangers, beaten and robbed of jewelry and cash, including six one hundred dollar bills and one fifty dollar bill. The police were called and several hours later two investigators stopped a vehicle driven by Moss in which Martin was a passenger. Three pieces of crack cocaine wrapped in cellophane were found in the ash tray; Martin had six one hundred dollar bills and one fifty dollar bill in his pocket; and Moss was driving with a suspended license. A broken pistol butt from the gun taken in the earlier robbery was recovered at the scene of the burglary. Charles Taylor confessed his involvement in the crimes, implicating both appellants.

1. Appellant Moss contends he was denied effective assistance of counsel by the trial court’s ruling allowing him to represent himself pro se. The record indicates that twelve days before the trial, Moss’ attorney, M. V. Booker, filed a request to withdraw from her representation of Moss because of a letter she received expressing his dissatisfaction with her. Before acting on the request, the court appointed Robert Cofer, who had been previously appointed to represent Martin, to represent Moss. Before the trial began, the court inquired as to who would be representing Moss and learned that Moss refused to discuss his case with Cofer on two occasions; that Moss wanted to be represented by Booker; and that Booker, while thoroughly familiar with the case, still wanted to withdraw. Finally, faced with Booker’s request and not wanting to be represented by Cofer, Moss said he would represent himself. The court denied Booker’s request to withdraw and ordered Booker and Cofer to assist Moss in his defense. The court then advised Moss of the perils of representing himself. Moss declared that he understood the dangers of self-representation and the fact that both Booker and Cofer would be present during the trial for consultation. While the record reveals that Moss gave his opening statement and closing argument and examined most of the witnesses, Booker and Cofer also made timely objections in his behalf. In addition, Moss consulted Booker when he got into difficulty. “ ‘When a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.’ [Cit.]” Williams v. State, 192 Ga. App. 317, 319 (3) (384 SE2d 877) (1989).

Moss also contends his waiver of counsel was not knowingly, intelligently or voluntarily given because the court failed to inquire into his background, his understanding of the charges against him and his knowledge of criminal procedure and evidence. When a defendant elects to waive the right to counsel, “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981). “ ‘ “(A) judge must investigate as long and as thoroughly as the circumstances of the case before him demand. ... To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. . . .” [Cits.]’ ” Turner v. State, 162 Ga. App. 806 (1) (293 SE2d 67) (1982). From our review of the record, we are convinced that the court’s admonition adequately apprised Moss of the dangers of proceeding without counsel. Shavers v. State, 179 Ga. App. 45 (1) (345 SE2d 134) (1986).

Moss argues that his Sixth Amendment right to a fair trial was violated by the court’s failure to allow Booker to act in his behalf; however, a defendant is not entitled to represent himself and also be represented by an attorney. Jones v. State, 171 Ga. App. 184 (2) (319 SE2d 18) (1984). In an abundance of caution, the court ordered his court-appointed counsel and counsel retained by his family to be present to advise Moss. Hence, this enumeration of error is without merit.

2. Appellant Moss contends that he was apprehended without probable cause and the evidence seized was used against him during the trial of the case. In order to challenge the admissibility of evidence seized by the police, a defendant must file a motion to suppress before trial. “ ‘[F]ailure to interpose a timely motion to suppress pursuant to the Act (Georgia Search and Seizure Act of 1966) constitutes a waiver of the constitutional guarantee with respect to the search and seizure in question. (Cits.)’ [Cits.]” Stansifer v. State, 166 Ga. App. 785, 788 (3) (305 SE2d 481) (1983). No such motion having been filed, this enumeration is without merit.

3. Moss and Martin enumerate as error the testimony of William Fowler because his name was not furnished to defense counsel by the State prior to trial pursuant to OCGA § 17-7-110. Fowler was called as an expert witness to provide testimony on blood and hair analyses performed by the state crime lab. His name had been substituted for a fellow official from the crime lab. After Cofer’s cross-examination of the witness, Moss objected to the testimony on the ground that Fowler’s name had been supplied earlier. The court then offered the appellants the opportunity to interview Fowler which they declined. “ ‘[W]hen the trial court has allowed the defendant an opportunity to interview “unlisted” witnesses, . . . the purpose of the statute [OCGA § 17-7-110] has been satisfied. . . .’ [Cit.]” Ronskowsky v. State, 190 Ga. App. 147 (1) (378 SE2d 185) (1989). Thus, the trial court properly allowed the witness to testify.

4. Appellants contend the court improperly limited defense counsel’s cross-examination. In support of this charge, appellants direct us to a portion of the trial transcript where on recross-examination the State objected to Cofer’s question on the ground that it exceeded the scope of the redirect examination. After some discussion, the record shows that the court overruled the State’s objection and permitted Cofer’s question, hence there was no restriction on appellants’ cross-examination. Further in the transcript, another defense question was objected to on the same grounds and the court sustained the objection. The scope of cross-examination lies largely with the discretion of the trial court. We will not disturb the exercise of that discretion where, as here, there has been no abuse of that discretion. Meadows v. State, 190 Ga. App. 662 (2) (380 SE2d 326) (1989).

Decided June 21, 1990.

Robert H. Cofer, for appellants.

Terry Moss, pro se.

Dennis C. Sanders, District Attorney, Michael N. Annis, Assistant District Attorney, for appellee.

5. The remaining enumerations of error are not supported by argument or citation of authority and are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Brooks v. State, 191 Ga. App. 705 (2) (382 SE2d 432) (1989).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge.

text:
    A90A0507.
    OGEECHEE STEEL, INC. et al. v. CITY OF ATLANTA.
    (396 SE2d 609)
   Carley, Chief Judge.

The denial to appellants of certification of their eligibility for participation in appellee’s Minority & Female Business Enterprises Program (MFBEP) was affirmed by a hearing officer and, on appeal to the superior court, the decision of the hearing officer was affirmed. Pursuant to OCGA § 5-6-35 (a) (1), appellants then applied for and were granted permission to file the instant discretionary appeal from the order of the superior court.

Appellee’s MFBEP has been held to be unconstitutional. American Subcontractors Assoc., Ga. Chap. v. City of Atlanta, 259 Ga. 14 (376 SE2d 662) (1989). Accordingly, even if the superior court erred, a reversal of its order in the instant case would mean only that appellants were erroneously denied certification of their eligibility to participate in a program that is no longer extant. Although they lost their appeal to the superior court, appellants are certainly in no worse position than those who were actually certified for participation, but who then lost the benefit of such certification when the Supreme Court declared appellee’s MFBEP to be unconstitutional. Since there is no “benefit” to be derived from attaining the status of participant in appellee’s defunct MFBEP, we will not address the moot issue of whether or not appellants may otherwise have been entitled to receive certification of their eligibility for such participation. See generally Ring v. Williams, 192 Ga. App. 329 (1) (384 SE2d 914) (1989).

Decided June 21, 1990.

Oxendine & Associates, John W. Oxendine, for appellants.

Marua Jones Brooks, Rosalind Rubens, Alford J. Dempsey, Jr., Jerolyn Y. Webb, for appellee.

Appeal dismissed.

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


text:
    A90A0657.
    DENNISSON v. LAKEWAY PUBLISHERS, INC.
    (395 SE2d 366)
   Carley, Chief Judge.

Appellee-plaintiff brought this contract action against appellant-defendant and subsequently moved for summary judgment. Appellant brings this appeal from the trial court’s grant of appellee’s motion.

1. Appellant enumerates as error the trial court’s failure to comply with the procedural mandate of OCGA § 9-11-56 that the non-moving party be afforded 30 days within which to respond to a motion for summary judgment. However, appellant failed to raise this procedural defect at the hearing. Therefore, “the trial court’s entry of an order on the motion prior to the expiration of 30 days is waived. [Cits.]” Mobley v. Coast House, Ltd., 182 Ga. App. 305, 309 (355 SE2d 686) (1987). Compare Dixon v. Midland Ins. Co., 168 Ga. App. 319, 321 (2) (309 SE2d 147) (1983).

2. Appellant enumerates the trial court’s grant of the motion for summary judgment as erroneous on the merits.

The basis of appellant’s purported liability to appellee is a document denominated as a “Credit Application.” Appellant is named therein as the Secretary-Treasurer of Progressive Products, Inc. (Progressive Products), the corporation for which credit from appellee was being sought. The “Credit Application” provides, in relevant part, as follows: “It is agreed on behalf of the business, partnership, company and/or corporation and the individuals signing this instrument that they are jointly and severally liable for any and all credit extended by [appellee]. . . .” The document contains a designated signature line for execution by Progressive Products’ agent but no signature appears on this line. Appellant’s signature appears on one of the lines above the word “GUARANTORS” without any indication whatsoever that she signed in a representative capacity. The parties stipulated to the authenticity of appellant’s signature and to the indebtedness of Progressive Products to appellee.

It is appellant’s contention that extrinsic parol evidence creates a genuine issue of material fact as to whether she signed the document in her representative capacity as Progressive Products’ agent or in her individual capacity as the guarantor of Progressive Products’ indebtedness to appellee. However, parol evidence is neither admissible nor probative if the agreement is otherwise clear and unambiguous. Walter E. Heller & Co. v. Aetna Business Credit, 151 Ga. App. 898, 903 (7) (262 SE2d 151) (1974). On the face of the document, appellant unambiguously signed in her individual capacity and not in her representative capacity. “[W]here the printed form contained actual lines for signature in a representative capacity which were not used, it is obvious that the signer intended the obligation to be personal.” Williams v. Davis Water & Waste Indus., 141 Ga. App. 49, 50 (1a) (232 SE2d 389) (1977). Accordingly, appellant is personally liable as the guarantor of Progressive Products’ indebtedness to appellee. That Progressive Products was itself not a signatory to this particular document does not compel a different conclusion. See Griswold v. Wells Aluminum, Moultrie, 156 Ga. App. 19, 20 (2) (274 SE2d 7) (1980). No genuine issue of material fact remains and the trial court correctly granted summary judgment in favor of appellee.

Decided June 21, 1990.

Davis, Price & Young, Robert E. Price, for appellant.

Crews, Salter & Gisler, Charles M. Gisler, for appellee.

Judgment affirmed.

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


text:
    A90A0680.
    STOWERS v. GUTHRIE.
    (395 SE2d 371)
   Carley, Chief Judge.

A simplified statement of the relevant facts is as follows: Appellee filed suit against appellant, seeking damages allegedly resulting from a vehicular collision. Appellant answered, but did not file a counterclaim. Instead, appellant filed a separate action against appellee, seeking damages allegedly resulting from the same vehicular collision. Thereafter, appellant moved pursuant to OCGA § 9-11-13 (f) for leave to file an omitted counterclaim in the first action while appellee moved pursuant to OCGA § 9-2-44 for summary judgment in the second action. The trial court granted appellee’s motion for summary judgment and appellant appeals.

The pendency of appellee’s original suit against appellant was no basis for granting summary judgment against appellant in his subsequent suit against appellee. Rather than granting summary judgment in appellee’s favor, the trial court should have dismissed appellant’s subsequently filed complaint without prejudice and ruled on the merits of appellant’s motion for leave to file an omitted counterclaim in appellee’s originally filed action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 92 (2) (222 SE2d 878) (1975). See also Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga. App. 165, 167 (3) (355 SE2d 99) (1987). Accordingly, the trial court’s order is reversed with direction that appellant’s complaint be dismissed without prejudice and that appellant’s motion for leave to file an omitted counterclaim in appellee’s action be considered on its merits.

Decided June 21, 1990.

Willie J. Woodruff, Jr., for appellant.

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, Susan S. Wells, William S. Cowsert, Thomas F. Allgood, Jr., Cornwell, Church & Healy, Timothy P. Healy, for appellee.

Judgment reversed and case remanded with direction.

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


author: Banke, Presiding Judge.

text:
    A90A0731.
    MARTIN v. THE STATE.
    (395 SE2d 613)
   Banke, Presiding Judge.

The appellant was charged with homicide by vehicle in the first degree (OCGA § 40-6-393), failure to stop at or return to the scene of an accident (OCGA § 40-6-270), driving on the wrong side of the road (OCGA § 40-6-40), reckless driving (OCGA § 40-6-390), and failure to give information or render aid (OCGA § 40-6-271). He was found guilty of failing to stop at the scene and driving on the wrong side of the road.

The appellant admitted that he hit something while driving his red pickup truck at dusk July 14, 1989, and that he continued on without stopping, testifying that he thought he had hit one of his uncle’s cows. He proceeded immediately to his uncle’s house to report to him what he believed had happened; and the two of them immediately went back to the scene, where they discovered that two pedestrians had been struck and that one of them had been killed. They then returned to the uncle’s house and reported the accident. The appellant refused a subsequent request by law enforcement officers that he submit to blood or urine analysis, explaining that he had smoked marijuana two or three days previously. Held:

1. The appellant contends that the trial court erred in refusing to exclude evidence that he had been arrested for illicit drug use subsequent to his arrest on the charges for which he was being tried. However, an examination of the transcript reveals that the evidence in question was never presented to the jury.

Decided June 21, 1990.

Walter S. Scott, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

2. The appellant asserts that the trial court erred in allowing him to be questioned regarding whether he had ever before used illicit drugs. This issue was first broached by defense counsel during direct examination of the appellant; and each time the defense objected to the state’s subsequent attempts to question the appellant about the subject on cross-examination, the objection was sustained or the question was withdrawn. Consequently, this enumeration of error presents nothing for review.

3. The appellant contends that the court erred in allowing one of the state’s witnesses to testify that he had seen a red pickup truck near the spot where the victims were struck at approximately the time the incident occurred, but proceeding in a direction different from that in which the appellant maintained he had been driving. The appellant argues that this testimony was irrelevant because the witness was unable to make a positive identification of the truck or driver. We do not agree that this rendered the testimony irrelevant. Moreover, because it was established without dispute both that the appellant had struck the two victims and that he had crossed over to the wrong side of the road in doing so, the admission of this testimony must be considered harmless in any event.

4. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Sognier, Judge.

text:
    A90A0928.
    THOMAS v. THE STATE.
    (395 SE2d 615)
   Sognier, Judge.

Mark Grady Thomas was convicted of possession of marijuana and cocaine with intent to distribute, and he appeals.

On January 27, 1989, Clarke County police conducted a search of appellant’s residence pursuant to a warrant which authorized a search of the entire premises and curtilage. An inoperable automobile used to store household items and clothing was parked in the yard approximately eight feet from the house. A search of the trunk resulted in the seizure of numerous plastic bags containing what was later identified as marijuana and cocaine. Appellant’s motion to suppress the seized items was denied.

1. Appellant contends the affidavit proffered in support of the application for the search warrant was insufficient to support issuance of the warrant because it failed to show any of the underlying circumstances from which the affiant’s confidential informant concluded that contraband was present. We do not agree. The affiant, a Clarke County police officer, averred that approximately six months previously he had been told by a confidential source who had previously proven to be reliable that appellant was involved in the sale of illegal drugs, but affiant and other police officers had been unable to obtain enough current detailed information to authorize the issuance of a search warrant at that time. Affiant also averred, however, that within the last three days he had been contacted by another reliable confidential source who had actually been to appellant’s residence “within two days prior to . . . meeting with the [ajffiant . . . and had seen what was purported by [appellant] to be cocaine.” An informant’s personal observation is sufficient to satisfy the “basis of the knowledge” aspect of the “totality of the circumstances” test for reliability of an informant’s tip set forth in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), as well as the old, two pronged test set forth in Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964) and Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637) (1969), now supplanted by Gates. See, e.g., Shaner v. State, 153 Ga. App. 694, 696-697 (266 SE2d 338) (1980).

2. Appellant contends the trial court erred by admitting into evidence the second of two statements made to the investigating officer by Gladys Wooten, appellant’s adult daughter. The record reveals that appellant and his daughter were both present during the search of the premises. When the contraband was found, Wooten initiated a conversation outside the house with detective Tony Norris of the Clarke County Police Department, in which she stated the drugs found in the car belonged to her for her personal use, and her father, appellant, “didn’t have anything to do with it.” Norris testified at trial that after Wooten made that statement he gave her Miranda warnings (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)), but she continued talking to him voluntarily and then at his request went back into the house. Norris further testified that several minutes later, Wooten reemerged from the house and informed him that she had lied when she told him the drugs were hers, and that she and her father were keeping the drugs for someone named “Dennis,” whom Norris testified he was subsequently unable to identify or locate. Both Wooten and appellant were charged with violation of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. The charges against Wooten were severed for trial.

Prior to trial, appellant sought a ruling regarding the admissibility of testimony from Norris regarding Wooten’s first statement exculpating appellant. The State opposed its admission, on hearsay grounds, but sought admission of the recantation as well in the event the trial court ruled in favor of the admission of the first statement. The trial court ruled that the first statement was admissible pursuant to Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979) and Wilkerson v. Turner, 693 F2d 121 (11th Cir. 1982), and thus the State would be permitted to examine Norris as to the second, recanting, statement, as well. At trial, Norris’ testimony about both statements was elicited by appellant upon cross-examination.

Given the admission of the first statement, which was sought by appellant and is not enumerated as error, we find that OCGA § 24-3-38 applies, and the State was entitled “to have the whole admission and all the conversation connected therewith admitted into evidence.” Id. “ ‘The rule of evidence is, that when an admission, conversation or declaration previously made by a party or a witness is pertinent, the side tendering evidence as to the same is at liberty to prove such portion only thereof as is deemed material, and the other side may then bring out the whole of the admission, conversation or declaration, so far as so doing may be essential in order to arrive at the true drift, intent and meaning of what was said on the previous occasion. (Cit.)’ [Cit.]” Peacock v. State, 170 Ga. App. 309, 312 (316 SE2d 864) (1984). As the first exculpatory statement was not the entire substance of what was said during the search, admission of any portion of the remainder of what was said was proper, and the trial court’s admission of the second statement was not error. Because we find no error in the admission of the second statement, we need not address the argument raised by the State that appellant may not complain of the erroneous admission of evidence, he himself elicited.

3. Appellant next complains of the admission by the trial court of appellant’s statement that he owned the vehicle in which the contraband was found. Appellant argues that although Detective Jerry Stewart gave him Miranda warnings and asked him if he understood his rights, and appellant indicated that he did and was willing to talk, a short lapse in time between the administration of those warnings by Stewart and the question posed by Detective Norris concerning ownership of the car raises an issue as to the voluntariness of appellant’s statement that he owned the car in response to Norris’ question.

We find no merit in this enumeration. First, the record reveals that the objection appellant raised to the admission of this statement was not on the ground raised here. “A ground not raised by objection at trial cannot be raised for the first time on appeal.” (Citations and punctuation omitted.) McGarity v. State, 190 Ga. App. 139 (1) (378 SE2d 179) (1989). Second, “[t]he failure of [the second] interrogator to inform appellant of his Miranda rights was not error in view of the continuing nature of the interrogation and the short time span between the giving of the Miranda warnings and appellant’s statement. [Cits.]” McKenzie v. State, 187 Ga. App. 840, 844 (4) (371 SE2d 869) (1988). Accordingly, the trial court did not err by admitting appellant’s statement regarding ownership of the car. See id.

Decided June 21, 1990.

Albert Pearson, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

4. Appellant finally contends the trial court erred by admitting into evidence a computer printout of a vehicle registration obtained from a Georgia Crime Information Center (GCIC) computer because an insufficient foundation was laid for its admission. We do not agree. OCGA § 24-3-17 (b) provides that “[a]ny court may receive and use as evidence in any case information otherwise admissible from the records of the Department of Public Safety obtained from any terminal lawfully connected to the Georgia Crime Information Center without the need for additional certification of those records.” The statute thus provides for self-authentication where the document sought to be admitted was obtained from a computer terminal lawfully connected to the GCIC. Testimony showed that the document in question here was obtained from an Athens police department terminal lawfully connected to the GCIC computer. Pursuant to the statute, nothing more is required. The trial court did not err by admitting this document.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A1347.
    McKEEVER v. THE STATE.
    (395 SE2d 368)
   Deen, Presiding Judge.

Appellant McKeever and his common-law wife, Ms. Moore (not a party to the instant appeal), were arrested during a search of their dwelling and surrounding premises, conducted pursuant to a search warrant. McKeever was charged and convicted on one count of possession of cocaine with intent to distribute, and two counts of possession of marijuana; his co-defendant was found guilty only of cocaine possession and given a probated sentence, whereas McKeever was sentenced to prison. On appeal he enumerates as error (1) the trial court’s refusal to give appellant access to a document allegedly used by a prosecution witness during trial to refresh his memory; (2) the court’s admitting into evidence certain statements by the co-defendant; (3) the trial court’s permitting the State to call a certain witness whose name had not been furnished to the defense prior to trial; (4) the denial of defendant/appellant’s motion for continuance for the purpose of gathering evidence on the issue raised by the testimony challenged in the third enumeration, supra; (5) the admission in evidence of guns seized at appellant’s home; and (6) the denial of defendant’s motion for directed verdict on the felony count of possession with intention to distribute cocaine. Held:

1. Relying on Johnson v. State, 259 Ga. 403 (383 SE2d 118) (1990), appellant contends that the conviction should be reversed because a Georgia Bureau of Investigation (GBI) agent, on the evening before the day on which he was to testify and again on the morning of the day on which he was to take the witness stand, had reviewed documents prepared by himself or his colleagues as a summary of activities making up the sequence of events relative to the execution of the search warrant, and the documents were not made available to the defense. In Johnson v. State, supra, appellant’s counsel asked to see certain documents used by witnesses to refresh their recollection during the trial but prior to their taking the witness stand. The Supreme Court held at 405, that “if a witness uses documents to refresh memory after the inception of a hearing or trial, then during that hearing or trial, the cross-examiner is entitled to examine such documents.”

In the instant case the jury was selected but not sworn on November 13, 1989, the day before testimony began; it was on the evening of that day, and early on the morning of November 14, that the GBI agent reviewed the documents. The trial transcript reveals that the jurors were dismissed and the case adjourned on the afternoon of November 13, immediately after twelve jurors and one alternate had been selected. The transcript further reveals that at approximately 9:00 a.m. on November 14 the judge heard motions from counsel, and thereafter summoned the jury to the courtroom and administered the statutory oath. The court then stated to the newly-sworn jurors, “Ladies and gentlemen, to begin the trial, we will first hear the attorneys’ opening statements.” The trial thereafter proceeded in a normal manner.

It is well settled that “the trial does not begin until the jury has been impaneled and sworn. The defendant has been put in jeopardy when, in a court of competent jurisdiction, and upon a sufficient indictment, he has been arraigned, has pleaded, and the jury has been impaneled and sworn. [Cits.]” (Emphasis supplied.) Ferguson v. State, 219 Ga. 33, 35 (131 SE2d 538) (1963); accord Smalls v. State, 174 Ga. App. 698 (331 SE2d 40) (1985); Mize v. State, 173 Ga. App. 368 (326 SE2d 785) (1985). In the instant case the agent consulted the documents before the jury was sworn, and no error occurred. This enumeration has no merit.

2. We find no violation of the standard set forth in Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), and therefore no merit in appellant’s second enumeration. The trial transcript in the instant case makes it clear that the court took great pains to determine the voluntariness of the statement during a Jackson v. Denno hearing, and to see to it that proscribed material was eliminated. Appellant objects, however, to two statements of Ms. Moore’s that were not excised: (1) that she had hidden the glass bottle containing cocaine in the sofa, and (2) that “[appellant] don’t tell me his business.” We cannot agree that either of these statements was inculpatory of — and therefore prejudicial towards — appellant; at worst, they are neutral vis-a-vis appellant and, at best, tend to be exculpatory. Even if, arguendo, admission of the statements were error, reversal of the judgment would be unwarranted because harm as well as error must be shown in order for the error to be reversible. Terry v. State, 190 Ga. App. 570 (379 SE2d 604) (1989). Appellant has shown no specific harm emanating from either of the challenged statements, and other competent evidence adduced was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. In order to support its contention that, despite his inability to show evidence of regular employment or other legitimate source of income, appellant regularly made sizable expenditures, the State attempted to introduce in evidence a bill for nearly $800 for recent repairs to his luxury-class automobile. The court refused to admit the bill on hearsay grounds but indicated that it would be admissible if authenticated. During a lunch break the prosecutor arranged for an official of the automobile dealership to appear in court to authenticate the bill, which was thereafter admitted. According to the record, the State had not planned to call this witness until the court required testimonial authentication of the document.

When the witness appeared in the courtroom following the lunch break, defense counsel objected to his testifying without the statutory ten-day notice. The court offered to give defense counsel time to talk with the witness. Counsel replied that he had already done so and had learned the nature of the testimony, but that he needed additional time “to establish the background on this and the evidence that would be necessary to explain his testimony,” and also that he had had no time to confer with his client regarding this expected testimony. The record shows that the court then granted counsel time to confer with defendant/appellant.

In the circumstances of the instant case it would seem that permitting the unannounced witness to testify briefly as to the authenticity of the bill — in oral amplification, as it were, of the written document — would not constitute error. Moreover, there is ample precedent in Georgia law for permitting testimony in such circumstances as obtain here, as an exception to OCGA § 17-7-110. See, e.g., White v. State, 253 Ga. 106 (317 SE2d 196) (1984); Boscaino v. State, 186 Ga. App. 133 (366 SE2d 789) (1988). See also Fleming v. State, 236 Ga. 434 (224 SE2d 15) (1976); Yeomans v. State, 229 Ga. 488 (192 SE2d 362) (1972).

4. In his fourth enumeration appellant contends that the court erred in denying him a continuance. Our scrutiny of the trial transcript reveals that other evidence was adduced at trial to demonstrate the disparity between appellant’s legitimate income (and that of his common-law wife) and his expenditures, and that this evidence was sufficient to authorize the jury to find that appellant had one or more undisclosed sources of income. It is difficult, in light of the nature of the challenged testimony and the presentation of the other evidence, to conceive how a continuance predicated on the dealership official’s testimony could have enabled defense counsel to find or produce evidence sufficient to rebut the evidence on this point. Moreover, defense counsel knew or should have known that evidence of this sort could be expected to constitute a part of the State’s case, and should therefore have been prepared, before the trial began, to attempt to rebut it. See, e.g., Legare v. State, 243 Ga. 744, 749 (257 SE2d 247) (1972). We find no error here.

5. Appellant enumerates as error the trial court’s admitting evidence regarding the presence of guns in his house, contending that such evidence was both irrelevant and prejudicial. Examination of the trial transcript reveals (1) that testimony regarding the weapons was relevant to the issue of the law enforcement officers’ entry of appellant’s premises with their own weapons drawn; and (2) that the challenged testimony was first elicited by co-defendant’s counsel during his cross-examination of one of the officers and was elicited twice more by counsel for one or the other of the defendants, without objection. It was only when the guns themselves were tendered in evidence that counsel objected, and the trial court properly ruled that the tendered weapons were relevant to the jury’s consideration of appellant’s intent to conceal and protect the illegal substance which he was charged with possessing and distributing. We find no indication that such evidence was either irrelevant or introduced solely for the purpose of inflaming the jurors’ minds against appellant. This enumeration has no merit.

6. A verdict of acquittal should be directed only when there is no conflict in the evidence and the evidence demands a verdict as a matter of law. OCGA § 17-9-1. According to the record, the evidence on the charge of possession on which appellant sought a directed verdict of acquittal falls far short of the statutory standard. This enumeration is devoid of merit.

Decided June 21, 1990.

Richard D. Phillips, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0665.
    JOYCE v. VAN ARSDALE et al.
    (395 SE2d 275)
   Sognier, Judge.

Effie Marie Joyce brought suit against the Emanuel County Board of Commissioners and two county employees, Sam Van Arsdale and Carlee Grimes, to recover for property damage and personal injuries sustained when her car collided with a dismantled barricade in a county road. Joyce appeals from the summary judgment awarded to Van Arsdale and Grimes.

The material facts are not in dispute. The record reveals that after its periodic inspection of Emanuel County highway bridges, the Georgia Department of Transportation (DOT) advised the County that because of the condition of certain county bridges, federal regulations mandated that federal highway funds would no longer be transferred to the County unless the bridges were closed or repaired within ninety days. In response, the Board of Commissioners instructed appellee Van Arsdale, the County Road Superintendent, to take the necessary steps to close certain bridges, including the one near the intersection of highways 77 and 79. Van Arsdale then delegated the responsibility for closing the bridges and placing appropriate signs and barricades to appellee Grimes, who was the Assistant Road Superintendent and supervisor of a work crew. Grimes and his crew constructed a barricade of bridge timbers and posted “bridge closed” signs along the highway. Appellant was injured when she drove her automobile across the bridge and hit the barricade, veered off the roadway and into a tree, and overturned. Grimes stated in answer to appellant’s interrogatories that the barricade and sign had been tampered with and partially dismantled by unknown persons.

The trial court concluded that appellees were entitled to the defense of sovereign immunity available to the County because the County’s participation in an interlocal risk management agency program (IRMA) did not constitute the provision of liability insurance which under Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution would constitute a waiver of sovereign or official immunity, and because of this court’s decisions concerning discretionary and ministerial acts for county employees issued prior to the Supreme Court’s ruling in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990).

We agree with appellant that the distinction between discretionary and ministerial acts remains viable for county employees, as the Supreme Court recently ruled in Logue that even if a county has not waived sovereign immunity by the purchase of insurance, a county employee nonetheless may be held liable for the negligent performance of a ministerial act. Conversely, if the employee acted in his official capacity and the challenged act involved the performance of a discretionary duty, the employee is entitled to the defense of official immunity provided the act complained of was not malicious, wilful, or corrupt, or done in reckless disregard for the safety of others. Id. at 207. Given that the trial court’s conclusion in the case at bar that the County had not waived its immunity through the purchase of insurance is not disputed on appeal, the propriety of the grant of summary judgment turns on whether appellees’ acts were discretionary or ministerial.

“[W]here an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability. . . . These discretionary acts lie midway between judicial and ministerial ones. . . . and the question depends on the character of the act.” (Punctuation omitted.) Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980). “ ‘Under this standard it makes no difference that the official is required to perform discretionary acts if the complained-of act is more properly characterized as ministerial. . . . The single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial.’ [Git.]” Shuman v. Dyess, 175 Ga. App. 213, 216 (333 SE2d 379) (1985). “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Miree v. United States, 490 FSupp. 768, 774 (ND Ga. 1980) (quoted with approval in Shuman, supra at 216).

The record reveals that appellee Van Arsdale was directed by the county commission to comply with the DOT’s request to close the bridge. He in turn delegated to appellee Grimes the task of selecting the method and performing the work, and Grimes and the county maintenance crew then erected the barriers and signs. We agree with appellant that these acts were comparable to those of the airport manager in Miree, supra, whose acts in carrying out a directive from the Federal Aviation Administration were determined to be ministerial. The acts at issue here are distinguishable from those of the prison warden in Price v. Owen, 67 Ga. App. 58 (19 SE2d 529) (1942), and the school principal in Hennessy, supra, because in each of those cases the decision complained of involved rule making or deliberation concerning a matter that had been left to the supervision and control of the official at issue, whereas here appellees were carrying out a specific task which became necessary after the discretionary decision making body, the commission, made the decision to allocate county funds to close the bridge rather than repair it.

Decided May 29, 1990

Rehearing denied June 22, 1990 — Cert, applied for.

Darroch & Obenshain, Robert M. Darroch, C. David Vaughan, Emory A. Wilkerson, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellees.

“ ‘Should the [county] decide when a street should be opened, closed, or repaired, or when a sewer should be built, it is clearly exercising legislative or judicial functions, but when it engages in the work of opening, closing, or repairing a street, or building a sewer, and is thus engaged in the physical execution of the work, it is evidently in the discharge of duties purely of a ministerial nature.’ [Cit.] It follows that the actual progress of such work by a [county] is of a ministerial character, and that the duties of a road supervisor in carrying out the physical details of the work are likewise ministerial in nature. Likewise, the supervision and control by the road supervisor of a subordinate who is actually running the road machine are of the same character.” Mathis v. Nelson, 79 Ga. App. 639, 642 (54 SE2d 710) (1949). Cf. Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982) (replacement and maintenance of traffic signs is a ministerial act). Although Grimes’ acts undoubtedly involved the exercise of some judgment in determining how large the barriers should be and where they should be placed, the execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee’s discretion. Miree, supra at 773-774. Accordingly, appellees may be held liable if the evidence shows they negligently performed or supervised this work or that they had the duty to inspect the previously erected barricade but were negligent in the performance of this obligation, and summary judgment was thus not appropriate. See Nelson, supra at 337 (2) (a).

Judgment reversed.

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


text:
    A90A0690.
    BUTLER v. GLEN OAK’S TURF, INC.
    (395 SE2d 277)
   Sognier, Judge.

Elaine Butler appeals from the dismissal of her tort suit against her former employer, Glen Oak’s Turf, Inc.

Butler’s complaint was dismissed on the basis that the two-year statute of limitation for personal injuries, OCGA § 9-3-33, had run. In her complaint Butler alleged she was injured in a work related accident on May 18, 1987. It is uncontroverted that Butler thereupon proceeded under the Workers’ Compensation Act, OCGA § 34-9-1 et seq. (the Act), and was awarded benefits thereunder by the administrative law judge (ALJ). On de novo review, the State Board of Workers’ Compensation adopted the award of the ALJ, and on appeal to the superior court, the board’s award of benefits was affirmed. In Glen Oak’s Turf v. Butler, 191 Ga. App. 840 (383 SE2d 203) (1989), this court reversed the superior court’s affirmance of the award on the basis that Butler was a “farm laborer” who was excluded from workers’ compensation coverage pursuant to OCGA § 34-9-2 (a). That decision was rendered June 7, 1989; on July 14, 1989, Butler filed the instant suit.

We agree with appellee that appellant’s cause of action vested on May 18,1987 when appellant was injured by a forklift turning over on her, see generally Synalloy Corp. v. Newton, 254 Ga. 174, 177 (2) (326 SE2d 470) (1985), and under OCGA § 9-3-33 the statute of limitation began to run from that date. We thus find no merit in appellant’s argument that the statute of limitation did not begin to run until we handed down our opinion in Glen Oak’s Turf, supra, on June 7, 1989.

However, we do not agree with the argument presented by appellee, and accepted by the trial court, that the proceedings instituted by appellant pursuant to the Workers’ Compensation Act had no impact on the running of the statute of limitation on appellant’s common law tort case. Although this issue appears to be of first impression in Georgia, other states have addressed the matter. We find most persuasive the holding of the Supreme Court of California in Elkins v. Derby, 525 P2d 81 (SC Cal. 1974), which addressed the identical issue, whether the statute of limitation on a plaintiff’s personal injury action was tolled for the period during which the plaintiff pursued his workers’ compensation remedy against the defendant. In that case the plaintiff, injured while working on the defendants’ premises, reasonably and in good faith filed a timely claim for benefits with the California Workmen’s Compensation Appeals Board. The Board determined after several months that the plaintiff was not covered because he was not an “employee” at the time of his injury. Shortly after the Board’s order became final the plaintiff filed his civil action which, not having been filed within a year of the injury, was held barred by the applicable statute of limitation. As in the case sub judice, the defendants in Elkins argued that the dismissal of the plaintiff’s claim was proper because the plaintiff could have preserved his rights despite the statute of limitation by simultaneously commencing a civil action and a compensation claim. The California court held that “the statute [of limitation] may properly be tolled for the period during which plaintiff pursued his compensation remedy. . . . [A]n awkward duplication of procedures is not necessary to serve the fundamental purpose of the limitations statute, which is to insure timely notice to an adverse party so that he can assemble a defense when the facts are still fresh. The filing of a compensation claim accomplishes this purpose and the tolling of the statute does not frustrate it. Moreover, nothing in the cases forecloses a rule that the statute is tolled during the pendency of compensation proceedings. . . . Defendants’ suggested duplicative procedures would impose a heavy burden on all concerned. Such procedures would entail the filing of cases in our heavily burdened superior courts that would be mooted whenever the board decided it had jurisdiction to grant relief. Such procedures also would impose upon the claimant the burden of alleging contradictory pleas, for example, that he both was and was not an employee at the time of his injury or that his injury both did and did not arise from the course of his employment. Although the workmen’s compensation system seeks to establish a nontechnical means to recover for industrial injuries a dual filing requirement presupposes a professional knowledge without which the worker would forfeit all right to recover.” Id. at 82-83. See also Larson, Law of Workmen’s Compensation, Volume 2A § 67.31 (1989). While an opposite conclusion was reached by the Supreme Court of Washington in Winston v. Wines, 351 P2d 929 (SC Wash. 1960), we note that in that case, the injury occurred April 29, 1955; the plaintiff’s workers’ compensation claim was denied in January 1956 at the initial stage of the procedure to obtain such benefits; the plaintiff appealed the denial to both the board of industrial insurance appeals and the superior court, both of which affirmed the denial of his claim; and the plaintiff did not file his civil suit until March 1958, nearly three years after the injury and 26 months after his workers’ compensation claim was first rejected. That case is thus distinguishable from the case at bar, where appellant’s claim for workers’ compensation benefits was successfully received by the ALJ, the Board, and the superior court.

Georgia case law supports the rule set forth in Elkins, supra. In Bishop v. Weems, 118 Ga. App. 180 (162 SE2d 879) (1968), the plaintiff brought a wrongful death claim against her husband’s employer. The employer asserted the claim was barred because the plaintiff’s exclusive remedy was under the Workers’ Compensation Act and moved for summary judgment on the basis that the tort action had to abate because the claim was pending before the board. This court noted that while a defendant may assert coverage under the Act as a bar to a common law negligence action against him arising out of the same occurrence, in order to sustain such assertion one had to plead and prove coverage under the Act. “If there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action.” (Emphasis supplied.) Id. at 181 (4). In the case at bar, the initiation of appellant’s claim for benefits under the Act resulted in an adjudication of coverage by the ALJ which served to bar appellant’s common law negligence claim. See Venable v. John P. King Mfg. Co., 174 Ga. App. 800, 803 (331 SE2d 638) (1985). Thus, while appellant could have filed her negligence claim against appellee immediately after her injury, appellee would have been entitled to a grant of summary judgment in its favor on the basis of the ALJ’s award. Id. We stress that in the case sub judice the workers’ compensation claimant was ultimately denied benefits on the basis that she was not covered under the Act, not, as in Venable, supra, on the basis that, while covered, she was not entitled to compensation.

As noted by Professor Larson in his treatise on workers’ compensation, “[t]he most troublesome question that emerges from the various situations in which an action [by an employee] at law may lie — or may be thought to lie — against the employer is this: if the employee pursues one remedy to a fruitless conclusion, is he barred by his election from pursuing the other? The majority of cases have held that an unsuccessful damage suit does not bar a compensation claim, and that an unsuccessful compensation claim does not bar a damage suit. . . . Unquestionably, the majority rule is the only view that effectuates the purposes of the legislation, whatever arguments may be raised against it based on literal wording of statutes or on the technical application of the election doctrine at some stages of the common law. Workmen’s compensation is above all a security system; a strict election doctrine transforms it into a grandiose sort of double-or-nothing gamble. Such gambles are appealing to those who still think of the judicial process as a glorious game in which formal moves and choices are made at peril, and in which the ultimate result is spectacular victory for one side and utter defeat for the other. The stricken workman is in no mood for this kind of play, and should not be maneuvered into the necessity for gambling with his rights, under the guise of enforcing a supposed penalty against the employer.” (Footnotes omitted.) Larson, supra. Or, to adopt the language of the Court of Special Appeals of Maryland, “ ‘Catch 22’ may have carved a niche in the annals of contemporary American literature, but it shall not have a counterpart in contemporary [Georgia] civil litigation.’ ” (Footnote omitted.) Haynie v. Nat. Gypsum Corp., 490 A2d 724, 725 (Md. App. 1985).

Decided May 29, 1990

Rehearing denied June 22, 1990 — Cert, applied for.

Macklyn A. Smith, for appellant.

Freeman & Hawkins, Warner S. Fox, Carey E. Fox, for appellee.

Accordingly, we hold that because appellant was legally barred from pursuing her common law claim against appellee from the date the ALJ found she was covered by the Act (apparently in August 1987, although the precise date of the award is not established in the record) until June 7, 1989, the date this court held that appellant was not covered by the Act and reversed the superior court’s judgment affirming the coverage and award made by the Board and the ALJ, the statute of limitation was tolled during that period. (Similarly, the statute of limitation has been suspended during the pendency of the appeal of the case at bar to this court. Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 173 (1) (262 SE2d 481) (1979).) To hold otherwise would place appellant in an intolerable “ ‘Catch 22’ ” situation and would be inequitable in view of appellant’s active pursuit of a recovery for her injuries under a mistake of law that was not corrected until the issue was brought before this court. See generally Adams v. Guerard, 29 Ga. 651, 673-674 (2) (76 AD 624) (1860).

Judgment reversed.

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


text:
    A90A0855.
    HARRELL v. THE STATE.
    (395 SE2d 598)
   Sognier, Judge.

Charles A. Harrell appeals from the trial court’s denial of his plea in bar of prosecution in the Superior Court of Lamar County on charges of obstructing an officer, interfering with government property, carrying a concealed weapon, and possession of a firearm by a convicted felon, made on the ground that these prosecutions were in violation of OCGA § 16-1-7 (b) because he previously had been tried and convicted in Milner Municipal Court on a DUI charge which arose from the same conduct.

At the hearing on the DUI charge in municipal court, Milner Police Chief Jake Sutton testified that at approximately 1:20 a.m. on September 24, 1988 he observed a vehicle parked on the side of a dirt road. Because the vehicle appeared to be parked in what he regarded as a dangerous and suspicious place, Sutton decided to investigate, and upon further investigation the driver, appellant, produced his license and proof of insurance and answered Sutton’s questions. Sutton testified he then asked appellant to submit to a portable Alco-check test because “[a]s [appellant] spoke, he emitted a strong odor of alcohol,” and the test results were high enough to cause Sutton to call for help, arrest appellant, and advise him of his implied consent rights, whereupon appellant agreed to take a breath test at the Lamar County Sheriff’s office. Lamar County Sheriff’s Deputy Eric Harris arrived shortly thereafter, and the two officers handcuffed appellant’s hands behind his back and placed him in the rear of Harris’ vehicle for transport, with Sutton following in his vehicle. Sutton testified that on the way to the Sheriff’s office, Harris stopped in a convenience store parking lot, and when Sutton pulled up behind him, Harris emerged from the patrol car, as did appellant, who “stepped out in a swinging motion in an attempt to hit Deputy Harris.” Appellant’s counsel then elicited from Sutton the information that Harris told him appellant had “either threatened to kill [Harris] or threatened him with a gun.” An intoximeter test at the Sheriff’s office registered an alcohol concentration of .19 grams, and appellant was issued a citation charging him with DUI. Warrants were taken out by Harris and Sutton that day for obstructing an officer, carrying a concealed weapon, and carrying a pistol without a license.

Appellant appeared in the Milner Municipal Court on October 12, 1988 and was tried and convicted of the DUI offense. On December 12, 1988, the Lamar County Grand Jury indicted appellant for the offenses of obstructing an officer, interference with government property, carrying a concealed weapon, and possession of a firearm by a convicted felon. Appellant then filed the plea in bar which is the subject of this appeal, alleging the superior court prosecution was barred by the former jeopardy provisions of the Georgia and U. S. Constitutions and by OCGA § 16-1-7 (b). Appellant later amended his plea to request a trial by jury on the plea. The trial court denied both appellant’s plea and his request to have the plea heard by a jury.

1. Appellant alleges the trial court erred by failing to afford him a trial by jury on his plea in bar, as required by McWilliams v. State, 110 Ga. 290 (2) (34 SE 1016) (1900) and Daniels v. State, 78 Ga. 98, 102-103 (2) (6 ASR 238) (1886). However, unlike the situation in those cases, the facts here are not in dispute, as Sutton’s testimony at the DUI trial was not rebutted or contradicted. There is no question of when the events giving rise to the charges occurred as a matter of fact. Rather, the issue appellant raises is whether, as a matter of law, the later events “arose from the same conduct” as the DUI charge, see Division 2, infra, so as to come within the prohibition of the multiple prosecution bar in OCGA § 16-1-7 (b). As no question of fact was at issue here, it was unnecessary to have a jury hear the plea. The trial judge could rule on the plea as a matter of law. Bell v. State, 249 Ga. 644, 645 (1) (292 SE2d 402) (1982); accord Rainey v. State, 179 Ga. App. 584, 586 (2) (347 SE2d 341) (1986).

Decided June 12, 1990

Rehearing denied June 22, 1990 — Cert, applied for.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred by denying his plea in bar. We do not agree. OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” The phrase “the same conduct” in this statute has been used interchangeably with the phrase “the same transaction.” See McCannon v. State, 252 Ga. 515, 518, n. 5 (315 SE2d 413) (1984). Accordingly, the question here is whether the DUI offense arose from the same transaction as the other offenses. It is clear from the testimony at the DUI trial that the conduct giving rise to the other offenses did not occur until after appellant had been arrested for DUI by one officer and placed in the custody of a different officer for transportation to the Sheriff’s office. “We conclude that the offense of [DUI] did not arise from the same transaction as the [other] offenses. The [other] offenses were completed at a different time and at different locations. [Cits.] Evidence of the [other] offenses could be presented without permitting evidence of the [DUI] (or vice versa). [Cits.] We find no error in the trial court’s denial of [appellant]’s plea of double jeopardy.” Boyette v. State, 172 Ga. App. 683, 684 (1) (324 SE2d 540) (1984).

Judgment affirmed.

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


text:
    A90A0784.
    SANFORD v. THE STATE.
    (395 SE2d 373)
   Banke, Presiding Judge.

The appellant was convicted of two counts of selling cocaine in violation of the Georgia Controlled Substances Act. He brings this appeal from the denial of his motion for new trial. Held:

Decided June 22, 1990.

Waddell, Emerson, George & Buice, E. Angela Emerson, for appellant.

Joseph H. Briley, District Attorney, Albert C. Martinez, Jr., Assistant District Attorney, for appellee.

1. The appellant contends that the trial court erred in permitting an undercover agent to testify that he had “made purchases” at the appellant’s residence on several prior occasions, as this testimony impermissibly placed his character into evidence. We disagree. The appellant took the position at trial that the agent had him confused with someone else, and similar transaction evidence is admissible under such circumstances to prove identity. See State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980).

2. Asked by his attorney on direct examination whether he knew of anyone else who might have sold cocaine at his residence, the appellant responded in the negative. He contends on appeal that the trial court erred in thereafter allowing the state’s attorney to cross-examine him concerning the fact that his father was at that time serving a prison sentence for selling cocaine from the same location. As the testimony in question was received without objection, this contention presents nothing for review. See generally Shy v. State, 190 Ga. App. 370 (378 SE2d 920) (1989).

3. Generally speaking, “it is not harmful error to give a jury instruction on circumstantial evidence even if none is actually present in the case, inasmuch as such an instruction would ‘ “g(i)ve (the defendant) a rule more favorable than he could claim.” ’ [Cits.]” Barnes v. State, 171 Ga. App. 478 (4) (320 SE2d 597) (1984).

4. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the crimes charged. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0843.
    MYERS v. THE STATE.
    (395 SE2d 372)
   Banke, Presiding Judge.

The appellant was convicted of possessing cocaine and marijuana. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the contraband should not have been admitted because the state failed to establish the chain of custody. The forensic chemist who had analyzed the contraband testified at trial that he had briefly entrusted the sealed packages containing the drugs to his laboratory assistant for the purpose of obtaining a description of their contents. While he testified that he had remained in the laboratory with the assistant while she followed these instructions, he conceded that he had not watched her as she did so; and the assistant was not called as a witness at trial. “Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. [Cit.] . . . The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible.” Palmer v. State, 250 Ga. 219 (3) (297 SE2d 22) (1982). The trial court was authorized to conclude that the state had met its burden with respect to the establishment of the chain of custody in the present case.

Decided June 22, 1990.

Bennett, Wisenbaker & Bennett, C. Richard Williams, Jr., Michael S. Bennett, for appellant.

H. Lamar Cole, District Attorney, Catherine Helms, Assistant District Attorney, for appellee.

2. We reject the appellant’s contention that the summary of his in-custody statement which was furnished to him by the state prior to trial in response to his request for discovery made pursuant to OCGA § 17-7-210 was insufficiently complete to satisfy the requirements of that Code section. See generally Lewis v. State, 183 Ga. App. 41, 42 (357 SE2d 862) (1987). Consequently, we hold that the trial court did not err in permitting the arresting officer to relate to the jury the contents of the statement.

3. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of possession of cocaine and marijuana. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0232.
    FREY et al. v. SINKOLA, INC.
    (395 SE2d 324)
   Carley, Chief Judge.

In 1979, appellee-defendant Sinkola, Inc., constructed a house with an attached wooden deck. Some seven years later, the owners of the house hired appellant-plaintiff Morris Frey to install gutters. While engaged in doing so, Frey had occasion to lean a ladder against the side of the wooden deck. As he scaled the ladder, the deck pulled away from its attachment to the house. The deck, the ladder and Frey fell to the ground. As the result of this incident, Frey and his wife brought the instant tort action against appellee. The case was tried before a jury and a verdict in appellee’s favor was returned. Appellants appeal from the judgment entered by the trial court on the jury’s verdict.

1. The trial court gave instructions on the avoidance doctrine and comparative negligence. Appellants enumerate the giving of these instructions as error.

Frey was himself a contractor and had built a number of decks. He testified to the proper way for attaching a deck and the need to exercise care in ladder placement while installing gutters. With his experience and knowledge, he was aware that a deck requires maintenance and can be expected to separate from its attachment to a house over a period of time. He admitted that he had never inspected the attachment of this particular deck before he leaned his ladder against it. Contrary to appellants’ assertions, this was sufficient evidence to create a jury question as to the avoidance doctrine and comparative negligence and the trial court did not err in instructing the jury as to those issues. See generally BLI Constr. Co. v. Debari, 135 Ga. App. 299, 301 (1) (217 SE2d 426) (1975).

2. On cross-examination of Frey, the trial court overruled a relevancy objection to a question that was propounded to him. This evidentiary ruling is enumerated as error.

We find no abuse of discretion in the trial court’s failure to sustain appellants’ relevancy objection. See generally Howington v. Puckett, 130 Ga. App. 584, 585 (2) (203 SE2d 916) (1974). Moreover, since Frey testified that he did not know the answer to the question and a similar question was subsequently asked of and answered by another witness without objection, it is clear that error, if any, would be harmless. See Atlanta Gas Light Co. v. Redding, 189 Ga. App. 190 (1) (375 SE2d 142) (1988).

3. Appellants requested certain charges regarding the exceptions to the general rule of a contractor’s non-liability when his negligently performed work has been accepted. See Derryberry v. Robinson, 154 Ga. App. 694, 695 (2) (269 SE2d 525) (1980). The trial court’s refusal to give these charges is enumerated as error.

Decided June 7, 1990

Rehearing denied June 25, 1990 — Cert, applied for.

Anthony Kirkland, for appellants.

Parkerson & Shelfer, William P. Tinkler, Jr., for appellee.

If the deck had fallen shortly after construction by appellee and acceptance by the homeowners, perhaps the legal principles contained in the refused requested charges might have been applicable. However, the evidence of record shows that the deck had stood for seven years and was used during that period without incident. Accordingly, there was no evidence to authorize a finding that the deck, as constructed by appellee and accepted by the homeowners, was a nuisance per se, inherently or intrinsically dangerous, or so negligently defective as to be imminently dangerous to third persons. If any jury question was presented under the evidence, that question was whether or not it was negligent to construct a deck which could withstand normal use for only seven years without becoming detached. The trial court did not err in refusing to give the requested charges.

4. Appellants enumerate as error the failure to give another of their requested charges relating to the standard of care. The principles contained in the refused request were adequately covered in the charge as given by the trial court and we find no error. See generally Reece v. Selmonosky, 179 Ga. App. 718, 719 (3b) (347 SE2d 649) (1986).

Judgment affirmed.

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


text:
    A90A0479.
    GROSSBERG v. JUDSON GILMORE ASSOCIATES, INC.
    (395 SE2d 592)
   Sognier, Judge.

Paul Grossberg d/b/a Paul Grossberg & Associates brought suit against Judson Gilmore Associates, Inc. to recover damages, including lost profits, allegedly incurred as a result of the breach of a contract to supply a mailing list for direct mail advertising. The trial court granted partial summary judgment to Judson Gilmore Associates on the issue of recoverability of lost profits, and Grossberg appeals.

The record discloses that appellant operates an accounting and income tax return preparation business out of his home. From 1984 through 1987, he sent direct mail solicitations for income tax preparation services to the persons on a mailing list he purchased from a company called Dataman, which was composed of the names of those in specified zip codes who had within the prior year bought a home costing at least $90,000. After Dataman raised the price for its 1988 mailing list, appellant sought another source, and ultimately contracted to buy a list brokered by appellee. This list encompassed the same zip codes as the 1986 and 1987 lists, but was specified to list all purchasers of homes within the last year whose household incomes were at least $50,000. Appellant testified that he received responses from 1.1 percent of the advertising recipients in 1984-1987, but the 1988 mailing generated a response of only .25 percent. He calculated the gross profit from the Dataman list mailings at $13.73 per letter (including referrals and repeat business), while the mailings made using the list purchased from appellee generated a gross profit of only $.57 per letter mailed. Once he discovered this differential, appellant contacted a number of the persons who had received the 1988 mailing and learned that few of them were new home owners and several had incomes of less than $50,000.

1. Appellant first enumerates as error the trial court’s grant of partial summary judgment to appellee on the issue of contractual limitation of remedies. The trial court’s ruling was based on the finding that certain contract terms had been presented to appellant as a counteroffer and accepted by him through performance of the contract, and therefore his remedy for breach of the contract was limited to the purchase price of the mailing list. We find this conclusion was in error because appellee admitted in response to a request for admission served by appellant that the document containing these terms was never transmitted to appellant, and thus he cannot be considered to have consented to its terms.

2. Appellant next maintains that the trial court erred by granting summary judgment to appellee on the claim for lost profits, contending appellee has not shown that appellant cannot establish his anticipated profits with reasonable certainty. In the lower court proceedings, appellant testified to the gross profit received each year and presented some evidence of the cost of the mailings, one aspect of his operating expenses. The trial court concluded appellee had pierced appellant’s pleadings without sufficient rebuttal from appellant because the 1988 mailing list was based on different criteria, and because there was no evidence of net profit or total operating expenses from which his net profit could be calculated.

Ordinarily, anticipated profits are too speculative to be recovered, “but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits [were] in the contemplation of the parties at the time of the contract, they may be recovered . . . even though they can not be computed with exact mathematical certainty.” Mizell v. Spires, 146 Ga. App. 330, 332 (2) (246 SE2d 385) (1978). Nonetheless, “to recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.” Kitchens v. Lowe, 139 Ga. App. 526, 531 (228 SE2d 923) (1976). Further, the losses must be directly traceable to the acts of the other party. Tri-State Systems v. Village Outlet Stores, 135 Ga. App. 81, 84 (2) (217 SE2d 399) (1975).

In the case at bar, we agree with the trial court that appellant’s alleged lost profits were too remote and speculative to be recovered. First, given that the 1988 mailing list was formulated from criteria different from that of prior years, the claimed losses could not be traced directly to any acts or omissions of appellee. Second, there is no evidence of either net profits or data from which appellant’s net profits from the mailings could be calculated. Although he presented evidence of his gross profit and the expenses incurred in mailing the solicitations each year, there is nothing in the record to indicate what expenses appellant incurred in performing the services he provided to the respondents either in 1988 or in the prior years, and thus no evidence from which an inference could be drawn that his net profits had declined in 1988. See Department of Transp. v. Vest, 160 Ga. App. 368, 369 (1) (287 SE2d 85) (1981); compare Bennett v. Smith, 245 Ga. 725, 727 (267 SE2d 19) (1980).

“The burden of establishing the non-existence of any genuine issue of fact is upon the movant for summary judgment, and all doubts are resolved against him. [Cits.] In order to prevail, the defendantmovant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cit.]” Thompson v. Huckabee Auto Co., 190 Ga. App. 540, 541 (1) (379 SE2d 411) (1989). However, once the defendant-movant makes a prima facie showing he is entitled to judgment as a matter of law, the plaintiff-respondent must come forward with rebuttal evidence at that time or suffer judgment against him. Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (2) (380 SE2d 61) (1989). “A defendant who has cast upon a plaintiff the burden of responding with evidence to create or preserve a genuine issue of fact is entitled to prevail by summary judgment in the absence of any rebuttal evidence.” (Citations and punctuation omitted.) Id. Appellant maintains that appellee did not meet this burden because it presented only appellant’s deposition testimony and discovery responses in support of its summary judgment motion rather than offering any affidavit testimony of its own. We do not agree, for we have recognized that a defendantmovant is entitled to summary judgment when the plaintiff-respondent’s own testimony reveals an absence of evidence on an essential element of the claim. See Player v. Bassford, 172 Ga. App. 135 (322 SE2d 520) (1984). Here, once appellee presented appellant’s own testimony in support of its contention that appellant could not show lost net profits with a reasonable degree of certainty, the burden shifted to appellant to produce some evidence creating a genuine dispute on that issue. Since appellant failed to produce any evidence regarding operating expenses or net profit, the trial court properly granted summary judgment to appellee on the issue of lost profits. See generally Balke, supra at 781 (2).

Decided June 11, 1990

Rehearing denied June 25, 1990 — Cert, applied for.

Stanley M. Lefco, for appellant.

James B. Richardson, for appellee.

3. Our decision in Division 2 renders moot appellant’s remaining enumeration of error.

Judgment affirmed in part and reversed in part.

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