text:
    A93A1496.
    HOWARD v. PARKMAN et al.
    (437 SE2d 483)
   Pope, Chief Judge.

Plaintiff Edgar W. Howard, a/k/a James W. Taylor, appeals from the trial court’s grant of summary judgment in favor of defendants. At the time plaintiff filed this complaint, he was an inmate in the DeKalb County jail. Plaintiff filed his complaint against certain employees of DeKalb County asserting that these defendants denied him access to the courts by not allowing him to go to the law library at the times he wanted and by not providing him copies of legal materials in a timely fashion and sometimes not at all. Plaintiff sought injunctive relief and damages.

1. Our review of the record reveals that plaintiff did not present a claim at the trial court level for mail tampering. Accordingly, any enumerations of error concerning that claim cannot be considered by this court, which is a court for the correction of errors.

2. Any claim for injunctive relief against these defendants is now moot since plaintiff was transferred to state custody on October 25, 1991 and is no longer a prisoner in the DeKalb County jail.

3. We hold the trial court did not err in granting defendants’ motion for summary judgment on plaintiff’s claims that he was denied meaningful access to the courts because he was denied access to the law library at the time he wanted to go and was not given in a timely manner copies of legal materials. “ ‘ “When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of [his] pleadingfs], but [his] response, by affidavits or as otherwise provided . . . must set forth specific facts showing that there is a genuine issue for trial. If [he] does not so respond, summary judgment, if appropriate, shall be entered against [him].” ’ ” (Citations omitted.) Dickey v. Harden, 202 Ga. App. 645, 648 (414 SE2d 924) (1992). In support of their motion for summary judgment, defendants filed the affidavit of Dennis Cheatham, a lieutenant with the DeKalb County Sheriff’s Department who averred that DeKalb County maintains records concerning inmate access to the law library, and those records show that from November 10, 1990, to April 23, 1991, plaintiff was provided with 4,293 copies of legal materials. On the day that plaintiff complains of, April 23, 1991, the DeKalb County records show that plaintiff was provided with 90 copies of legal materials. Moreover, plaintiff admits he is permitted to work in a law library five hours per week. Thus, the record shows that plaintiff was provided with adequate access to a law library as required by Bounds u. Smith, 430 U. S. 817 (97 SC 1491, 52 LE2d 72) (1977).

Decided November 1, 1993.

Edgar W. Howard, pro se.

Michael J. Bowers, Attorney General, Johnson & Montgomery, Harry S. MacDougald, Robert H. Walling, for appellees.

Furthermore, the record on appeal and other records of this court belie the plaintiff’s argument that he has been denied meaningful access to the courts. Included in the record on appeal is a letter dated February 2, 1991 from the Clerk of the Superior Court of DeKalb County to plaintiff showing that he was a party in sixteen cases in that court filed after 1988, ten of which were pending at the time of the letter. The plaintiff’s pleadings also mention a case pending in the United States District Court for the Northern District of Georgia. Our records reflect plaintiff has appealed five cases to this court. See Howard v. DeKalb County Jail Staff, 205 Ga. App. 116 (421 SE2d 309) (1992) (three cases consolidated on appeal) and Howard v. State, 200 Ga. App. 188 (407 SE2d 769) (1991).

4. We have considered plaintiff’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       Plaintiff acknowledges he has access to the law library five hours per week.

       The record reveals that plaintiff did not respond to defendants’ motion for summary judgment but after that motion was granted, he filed a motion for rehearing claiming he had received no notice of the motion for summary judgment. However, on the same day he filed his motion for rehearing, he also filed his notice of appeal to this court. The filing of that notice deprived the trial court of the power to affect the judgment appealed. Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525 (2) (258 SE2d 139) (1979). Thus, the defendants’ consent to setting the appealed-from judgment aside and the trial court’s later order setting that judgment aside is without affect. Plaintiff does not raise on appeal that he was not served with defendants’ motion for summary judgment. Accordingly, we cannot consider that argument.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A93A1550.
    PALMER v. THE STATE.
    (437 SE2d 490)
   Pope, Chief Judge.

Defendant was convicted by a jury of possession of cocaine with intent to distribute. Because he was previously convicted of selling cocaine, he was sentenced to life pursuant to OCGA § 16-13-30 (d).

In his sole enumeration of error, defendant contends the evidence was insufficient to establish his intent to distribute. The evidence showed that defendant was in possession of nine rocks of crack cocaine and was not in possession of any smoking device. And, contrary to defendant’s claim that he was smoking the crack and intended to smoke all the rocks himself, two officers testified that defendant did not appear to be under the influence of cocaine at the time of his arrest. Moreover, the State produced an expert in the field of narcotics investigation who opined that someone with that amount of crack cocaine broken up into rocks of that size had it for the purpose of distributing it. See Davis v. State, 200 Ga. App. 44 (2) (406 SE2d 555) (1991). Viewed in a light most favorable to the verdict, this evidence was sufficient to allow a rational jury to find defendant guilty of possession with intent to distribute beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 1, 1993.

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, John T. Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A1610, A93A1611.
    GRACE v. THE STATE (two cases).
    (437 SE2d 485)
   Johnson, Judge.

A jury convicted James Lee Grace of aggravated battery on a peace officer, aggravated assault on a peace officer, and possession of a firearm by a convicted felon. His nephew, Allen Lee Grace, was convicted of aggravated battery on a peace officer and aggravated assault on a peace officer. James Grace appeals in Case No. A93A1610; Allen Grace appeals in Case No. A93A1611.

1. James Grace contends that the evidence was insufficient to support his conviction of aggravated assault on a peace officer. Viewing the evidence in a light most favorable to sustain the verdict, the pertinent facts are as follows: Police officers Willard Hinton and Ronald McMillan were on the lookout for three suspects involved in an armed robbery. The truck in which James Grace, Allen Grace and Willie Parris were riding matched the description of the vehicle allegedly involved in the robbery. The officers turned on their blue lights and the suspects pulled over. The driver of the truck, Willie Parris, got out of the vehicle and walked toward the patrol car. While Officer McMillan was speaking to Parris, Allen Grace got out of the truck but was told by the officers to get back into the truck. Officer Hinton walked over to the passenger side of the truck to watch the occupants. When Hinton turned his head to look inside the truck, Allen Grace fired three shots, striking Hinton in the face. Hinton backed away from the truck, drew his weapon and began firing at the vehicle as James Grace drove the vehicle away.

James Grace argues that since he did not fire the gun, he cannot be guilty of aggravated assault. We disagree. “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Griggs v. State, 208 Ga. App. 768, 769 (1) (432 SE2d 591) (1993); Tucker v. State, 205 Ga. App. 683, 684 (423 SE2d 422) (1992). Further, a person is a party to a crime and may be charged with and convicted of commission of the crime if he intentionally aids or abets in the commission of the crime. OCGA § 16-2-20. James Grace was seated in the pickup truck with Allen Grace immediately before, during and after Allen Grace shot the officer. Most importantly, James Grace drove the truck (and Allen Grace) away from the scene of the crime. This evidence establishes that James Grace was more than a mere bystander to the assault. We hold that a' rational trier of fact could have found James Grace guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Montgomery v. State, 208 Ga. App. 763 (432 SE2d 120) (1993).

2. Both appellants contend that the court erred in denying their motion for a directed verdict of acquittal on the charge of aggravated battery. “A person commits the offense of aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.” OCGA § 16-5-24 (a). The Graces argue that, contrary to the allegation in the indictment, Hinton was not seriously disfigured. “A verdict of acquittal may be directed where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.” (Citations and punctuation omitted.) McKissick v. State, 263 Ga. 188, 189 (1) (429 SE2d 655) (1993). Here, Hinton testified that he has a “little dent” in his chin where the bullet entered. His surgeon testified that the bullet destroyed a portion of his carotid artery, shattered his mandible and hit his spine. The surgeon also testified that the scar on Hinton’s chin would be permanent. Whether that scar constituted serious disfigurement was a jury question. Barfield v. State, 170 Ga. App. 796 (318 SE2d 219) (1984); Thompson v. State, 156 Ga. App. 1 (273 SE2d 894) (1980), cert. denied. The trial court did not err in refusing to direct a verdict of acquittal on the charge of aggravated battery.

3. Both appellants claim that the court erred in denying their motion for a change of venue. They argue that pre-trial publicity was so widespread that it was impossible for an impartial jury to be selected. The trial court reserved ruling on the motion until after voir dire was complete. After extensive questioning on the matter of pretrial publicity, only one of forty-seven jurors was disqualified. In a motion for a change of venue, the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Milan v. State, 207 Ga. App. 206, 207-208 (2) (427 SE2d 573) (1993). The Graces have not shown any way in which the setting of the trial was inherently prejudicial. Nor have they shown actual prejudice in the jury selection process. See Tharpe v. State, 262 Ga. 110 (416 SE2d 78) (1992). The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of discretion. Nobles v. State, 201 Ga. App. 483, 488-489 (11) (411 SE2d 294) (1991); Watts v. State, 200 Ga. App. 54, 56 (5) (406 SE2d 562) (1991). The trial court did not abuse its discretion in denying defendants’ motion for a change of venue.

4. The Graces next claim that the trial court erred in denying them additional peremptory strikes. “When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. ... In the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail.” (Emphasis supplied.) OCGA § 17-8-4. The Graces concede that the allowance of additional strikes is a matter within the sole discretion of the trial judge. They argue, however, that the judge abused his discretion by not explaining his refusal to allow additional strikes. The Graces cite no authority in support of this argument. Deference to the judge’s sound discretion precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived defendants of their rights. See Burleson v. State, 259 Ga. 498, 501 (384 SE2d 659) (1989). We find no abuse of discretion.

5. Both appellants contend that the court erred in allowing the testimony of a witness whose name was not on the State’s witness list since the prosecuting attorney did not state that the evidence was newly discovered in accordance with OCGA § 17-7-110. The witness’ name was brought to the Graces’ attention at a pre-trial hearing two weeks before the trial. At that hearing, a GBI agent gave testimony as to the identity of the witness and the scope of his knowledge. The agent also testified that the witness would be able to testify at the trial. The trial court allowed the Graces’ attorneys “whatever time is necessary” to interview the witness prior to him testifying at trial. “The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial.” (Citation and punctuation omitted.) Griffin v. State, 183 Ga. App. 386, 388 (3) (358 SE2d 917) (1987). The purpose of the statute was not thwarted and the defendants were not harmed since the witness’ name was brought to their attention weeks in advance and they were given an opportunity to interview the witness prior to his taking the stand. See generally Bates v. State, 202 Ga. App. 460 (414 SE2d 691) (1992); Williams v. State, 191 Ga. App. 913, 914 (3) (383 SE2d 344) (1989). Moreover, the proper remedy when a witness is called whose name was not on the list is to request a continuance, not the exclusion of the witness’ testimony. Wright v. State, 167 Ga. App. 445 (1) (306 SE2d 428) (1983).

6. Allen Grace contends that the trial court erred in allowing the introduction of similar transaction evidence. Before evidence of independent offenses may be admitted into evidence, the State must show: (1) that it seeks to introduce evidence of the independent offense, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) that there is sufficient evidence establishing that the accused committed the independent act; and (3) a sufficient connection or similarity between the independent act and the charged crime, so that proof of the former tends to prove the latter. Roos v. State, 208 Ga. App. 506, 507 (1) (b) (430 SE2d 870) (1993). Here, the State introduced evidence that Allen Grace and the other defendants were involved in an aggravated battery, armed robbery and murder at a grocery store approximately one hour before the incidents for which they were charged here. As in this case, both victims in the grocery store incident were shot in the head. Testimony also indicated that the same weapon was used in both crimes. We find that the State made the showings required in Roos and that the trial court did not err in admitting evidence of the independent offenses.

7. Allen Grace contends that the trial court erred in not ordering a mistrial when the GBI agent testified that a pill bottle containing suspected crack cocaine was found at the crime scene. Because the evidence tended to show a general criminal propensity more than it tended to prove an issue in the case, it should not have been introduced. Smith v. State, 182 Ga. App. 740, 741 (1) (356 SE2d 723) (1987). However, immediately after the statement was made, the trial judge instructed the jury to totally disregard the comment and absolutely remove it from their minds since there was no evidence as to who the suspected drug belonged to. The judge then asked the jurors if there was anyone who could not remove that statement from their minds, to which no one responded affirmatively. Given the court’s curative instructions as well as the other evidence supporting the convictions, we find the statement harmless.

Decided November 1, 1993.

Billy M. Grantham, for James L. Grace.

Ernie M. Sheffield, for Allen L. Grace.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

8. Allen Grace argues that the court erred in denying his motion for a directed verdict on the charge of aggravated assault upon Officer McMillan because there was no evidence of an assault upon that officer. McMillan testified that he was standing “a couple of feet” away from the truck when Allen Grace fired the shots and that he felt the flash and pressure from the shots. The gun did not have to be pointed at McMillan for there to have been an aggravated assault committed upon him. “It is the reasonable apprehension of harm by the victim of an assault by a firearm that establishes the crime of aggravated assault, not the assailant’s intent to injure.” (Emphasis in original; citations and punctuation omitted.) Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993). There was no error.

9. Allen Grace contends generally that the evidence was insufficient to support his convictions. Hinton identified Allen Grace as the person who fired three shots at him, striking him in the face and causing a permanent scar. McMillan testified that Allen Grace, the passenger in the truck, fired the gun and that the flash and pressure from the gun hit his face. This evidence, combined with the other evidence contained in the record, was sufficient for a rational trier of fact to find Allen Grace guilty of the crimes charged beyond a reasonable doubt. Jackson u. Virginia, supra.

Judgments affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2093.
    HASTY v. THE STATE.
    (437 SE2d 638)
   Johnson, Judge.

William Hasty was indicted on three counts of aggravated assault, kidnapping with bodily injury, speeding, eluding an officer and theft of a motor vehicle. The court appointed an attorney to represent Hasty. The case came on for trial in May 1991. After a jury had been selected, but not yet sworn, Hasty informed the court that he wanted to hire a different attorney because his appointed attorney had been unable to work out an acceptable plea bargain with the district attorney. Hasty did not express dissatisfaction with any other aspect of his attorney’s performance. The court agreed to continue the case to allow Hasty to retain his own counsel on the condition that he waive his speedy trial demand. Hasty agreed, and the judge stated, “[w]e are going ahead and give you an opportunity to hire a lawyer; you will have to have one by July and if you don’t have one by July, you will have to represent yourself then.” When the case was called for trial in July, Hasty appeared in court without a lawyer. The judge arranged for an attorney to sit with and advise Hasty throughout the trial. Hasty was found guilty of all the charges and sentenced to life in prison on the kidnapping with bodily injury count in accordance with OCGA § 16-5-40 (b), sentences on the other offenses to be served concurrently.

Hasty was granted an out-of-time appeal and counsel was appointed to pursue the appeal on his behalf after applying for a writ of habeas corpus in which Hasty alleged that he had been denied the right to a direct appeal.

1. Hasty argues that he was denied effective assistance of counsel in that he.was effectively required to represent himself at trial in violation of Art. I, Sec. I, Par. XIV of the Georgia Constitution and the Sixth and Fourteenth Amendments of the United States Constitution.

In Burnett v. State, 182 Ga. App. 539 (356 SE2d 231) (1987), appointed counsel withdrew from representation. At a pre-trial hearing in October, Burnett appeared without an attorney and informed the court that he would retain counsel prior to his trial, scheduled to be held the following January. The judge specifically advised Burnett that failure to secure counsel would not warrant a continuance. When the case was called for trial in January, Burnett had not secured counsel and the trial court required him to represent himself. Prior to the trial, the court “delayed the proceedings long enough to ascertain whether appellant had acted with reasonable diligence in securing representation and whether the absence of counsel was attributable to reasons beyond appellant’s control.” Id. at 541. After having made the inquiry, the court determined that the lack of representation was attributable to appellant’s lack of diligence in retaining counsel. This inquiry satisfied a test which the Georgia Supreme Court established in Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983), for non-indigent defendants; i.e., the constitutional right to counsel only “ ‘entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.’ ” (Emphasis in original.) In two recent cases, Callaway v. State, 197 Ga. App. 606, 607-608 (398 SE2d 856) (1990) and Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992), this court has held that when a non-indigent defendant appears for trial without retained counsel, a trial judge has an affirmative duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in securing the services of an attorney.

Mock v. State, 163 Ga. App. 320 (293 SE2d 525) (1982), discussed in both appellant’s and appellee’s briefs in this case is factually similar to our case, but differs in one key aspect. As in our case, in Mock, the appellant dismissed appointed counsel after the jury had been selected because his attorney had failed to negotiate an acceptable plea with the prosecutor. In Mock, the trial judge did not offer to continue the case, but warned Mock of the possible consequences of proceeding without counsel and urged him to allow his appointed counsel to represent him. Mock refused and the trial began immediately thereafter. This court noted in Mock that “[intelligent waiver and foolishness are not mutually exclusive. The appellant’s constitutional right to adequate counsel was satisfied in this case but he threw it away. . . . We do not question that a defendant has the right to counsel, but he had it in this case and voluntarily gave it up. His right to counsel is not superior to the state’s right to try him for the criminal offense and does not include the right to manipulate, whether consciously or capriciously, the state’s attempt in good course to prosecute him for the offense.” Id. at 321-322. In Mock, however, the appellant never represented to the court that he wanted to retain his own counsel. He never altered his status to that of a non-indigent defendant, and therefore it was unnecessary for the trial court to make an inquiry regarding diligence in obtaining counsel.

In the present case, the trial judge had already continued the trial, over the objection of the prosecution, in order to accommodate Hasty’s request to obtain different counsel. Hasty had been told when the case would be tried and warned of the dangers of proceeding without counsel. However, because the record fails to reveal that any inquiry was made upon which the trial court could have concluded that Hasty’s lack of representation was attributable to his own lack of diligence in retaining counsel, we must remand the case to the trial court for a hearing to determine why Hasty appeared at trial without counsel after having been warned that he would have to proceed to trial if he appeared without representation. See Kirkland v. State, 202 Ga. App. 356 (414 SE2d 502) (1991). If it appears that Hasty was unable to obtain counsel despite diligent efforts, then a new trial is warranted. If, on the other hand, after this hearing, the court determines that Hasty’s failure to obtain counsel was attributable to his own lack of diligence, then no new trial is demanded. After this hearing and the entry of an order reflecting the judge’s findings, Hasty is free to pursue whatever further remedies may be available to him, including the right to appeal directly from the judge’s order on this issue.

Decided November 1, 1993.

Steven M. Reilly, for appellant.

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

Hasty also now argues that appointed counsel was ineffective. Hasty made no such assertion below, articulating no reason for discharging his attorney other than his dissatisfaction with the plea negotiations. We recognize that a claim of ineffective assistance of trial counsel may be raised for the first time on appeal necessitating a remand on that issue. However, Hasty was granted the relief he requested, to be allowed to discharge appointed counsel and hire his own. Furthermore, this assertion goes beyond the scope of the enumeration of error as presented to us for review, i.e., whether Hasty was denied effective assistance of counsel at trial. “On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration.” (Citations and punctuation omitted.) Kennedy v. State, 205 Ga. App. 152, 154 (2) (421 SE2d 560) (1992).

2. The trial court did not err in entering a life sentence without conducting a pre-sentence hearing and without permitting Hasty to present evidence. The only sentences authorized by statute upon a conviction of kidnapping with bodily injury are life imprisonment or death. OCGA § 16-5-40 (b). The State did not seek the death penalty in this case. The trial court had no alternative, therefore, but to impose a life sentence and was not required to conduct a pre-sentence investigation or to hear evidence from Hasty prior to doing so. “The law will not require unnecessary procedure of the trial court. . . . There is no necessity to conduct a pre-sentence hearing on the issue of punishment as the trial court possesses no discretion in such an instance.” Brown v. State, 246 Ga. 251, 253 (6) (271 SE2d 163) (1980).

Case remanded.

McMurray, P. J., and Blackburn, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A0886.
    ZECHMANN v. THIGPEN et al.
    (437 SE2d 475)
   Beasley, Presiding Judge.

Defendant optometrist Zechmann was granted interlocutory appeal from the denial of his motion for summary judgment in this professional negligence suit brought by plaintiffs Mr. and Mrs. Thigpen, individually and as parents and next friends of their minor daughter, Rachel. The issues are whether the statute setting limitation and repose for medical malpractice actions involving a minor, OCGA § 9-3-73, is applicable and whether it is a bar to suit.

The evidence construed favorably for the non-movant plaintiffs when conflicting, together with the undisputed facts, showed the following. Rachel, born July 6, 1980, was examined by Zechmann during three office visits, on April 23, 1985, June 3, 1985, and January 29, 1986. Mrs. Thigpen took Rachel for the initial visit within a week after noticing that Rachel’s left eye was “dragging.” At that first visit, Zechmann informed Mrs. Thigpen that Rachel had a “lazy eye,” i.e., amblyopia, and recommended putting a patch over the child’s good right eye for an hour a day in order to force the use of the problem eye. The patching did not work and it became obvious to Mrs. Thigpen that Rachel could not see out of her left eye. At the next visit, Zechmann prescribed eyeglasses. On the third and last office visit on January 29, 1986, Zechmann informed the mother that the blood vessels in the back of Rachel’s left eye had not developed because she had been a premature baby, that there was nothing that could be done about it, and that the child would be blind in that eye for the rest of her life. Zechmann noted on Rachel’s chart, “congenital nerve defect or optic nerve disease.” Zechmann did not tell Mrs. Thigpen that optic nerve disease was the other possible cause of Rachel’s problem. Had he done so the mother would have asked for further treatment and referral to a specialist.

The child’s left eye became painful in February 1990, and Mrs. Thigpen took her to see another optometrist. That optometrist quickly referred them to an ophthalmologist, whom they saw the next day, February 16. The ophthalmologist immediately diagnosed that Rachel was suffering from Coats’ disease, a serious and progressive eye disorder, and referred the child to an ophthalmologist, whom she visited on February 21. The ophthalmologist confirmed Coats’ disease, which at that point had led to neovascular glaucoma. The painful glaucoma required the surgical removal of the child’s left eyeball on April 24.

The specialist’s opinion was that Rachel likely had Coats’ disease when she was seen by Zechmann in 1985; the exotropia, i.e., abnormal turning of the eye, at that time was from the Coats’ disease; a dilated fundoscopic examination at that time would have led to a correct diagnosis; instead no treatment was afforded the unrecognized Coats’ disease which over a period of time led to neovascular glaucoma requiring enucleation; had a correct and prompt diagnosis been made and timely treatment given it is probable the eye would have been saved.

Plaintiffs filed the complaint for damages on January 6, 1992 with expert affidavit per OCGA § 9-11-9.1, alleging that Zechmann deviated from the standard of care of his profession generally by failing to detect the Coats’ disease due to inadequate history and examination and by failing to refer the child to an ophthalmologist for treatment despite symptomatology, resulting in the eye loss. They further alleged that Zechmann fraudulently failed to disclose to them the condition of Rachel’s left eye and falsely represented facts to them about the eye and its prognosis. Pearle Vision Center, Inc. was originally named as a co-defendant but was later voluntarily dismissed without prejudice from the suit.

1. OCGA § 9-3-73 applies to the alleged professional negligence by the optometrist.

For purposes of the article governing limitations for medical malpractice actions, OCGA § 9-3-70 defines “action for medical malpractice” in part as “any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service. . . .” This article, which in OCGA § 9-3-71 limits medical malpractice actions to two years, is in derogation of the common law. Thus, it must be narrowly construed. Redwine v. Arvaniti, 83 Ga. App. 203, 206 (63 SE2d 222) (1951). However, its language plainly encompasses more than the practice of medicine. See Faser v. Sears, Roebuck & Co., 674 F2d 856 (11th Cir. 1982), which discerned that “the practice of medicine” in OCGA § 43-34-20 (3) for purposes of licensing and registration is narrow whereas the meaning of “medical malpractice” in OCGA § 9-3-70 for purposes of limitation of actions is broad. It held that the two-year medical malpractice statute of limitation applied to pharmacists.

Inasmuch as plaintiffs contend that Rachel’s injury arose from the health or medical service, diagnosis, and/or care which the optometrist rendered to her, their suit is subject to the limitations for malpractice actions prescribed by Article 4, Chapter 3, Title 9 of the Code of Georgia.

OCGA § 43-30-1 (2) (A) declares optometry to be the “learned profession” of “the art and science of visual care” and describes its practice in part as “the diagnosis and interpretation of the visual behavior of the human organism by the employment of any means other than the use of drugs, medicine, or surgery.” The statutory subsection also provides that as to certified and pharmacologically trained optometrists, nothing in the chapter would prohibit the “use, administration, or prescription of pharmaceutical agents topically applied to the eye for diagnostic purposes and treatment of ocular disease.” Zechmann testified that optometrists dealt not only with problems that could be corrected by refraction but also with pathological diagnosis. Other than what is described in the definition of optometry in OCGA § 43-30-1 (2), an. optometrist is prohibited from practicing medicine in any manner as defined by Georgia law. OCGA § 43-30-13. It is not alleged that Zechmann practiced medicine illegally in connection with the child but rather that he negligently practiced optometry.

2. The next question is whether the old or the new tolling provisions in Article 4 apply to this case.

OCGA § 9-3-73, which relates to the tolling of medical malpractice claims, originally gave the same tolling privilege to such actions as was provided generally for actions in contract under Article 5. Ga. L. 1976, p. 1363, § 1. It was substantially amended in 1987 to limit the time in which a cause of action by or on behalf of a minor or certain other disadvantaged persons could be filed. Ga. L. 1987, p. 887, § 2. It even applies to causes of action arising before the passage of the amendment but specifically provides a two-year grace period for the initiation of such proceedings. See OCGA § 9-3-73 (g); Mansfield v. Pannell, 261 Ga. 243, 245 (404 SE2d 104) (1991). “ ‘A statute of limitation is remedial in nature. The legislature can constitutionally provide for the retrospective application of a remedial statute provided a time be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights.’ [Cit.]” Allrid v. Emory Univ., 249 Ga. 35, 37 (1) (b) (285 SE2d 521) (1982).

Whether plaintiffs’ cause of action is deemed to have arisen at the times of Zechmann’s attendance in 1985 or 1986 or later in 1990 when the child’s undiagnosed Coats’ disease resulted in neovascular glaucoma and enucleation of the eyeball, the amended OCGA § 9-3-73 applies. The complaint was filed after July 1, 1987, the effective date of the statutory amendment, so no question of retroactivity arises. See Mansfield v. Pannell, 194 Ga. App. 549, 550 (390 SE2d 913) (1990), aff’d 261 Ga. 243, supra, citing Hunter v. Johnson, 259 Ga. 21, 22 (376 SE2d 371) (1989), and LFE Corp. v. Edenfield, 187 Ga. App. 785, 788 (371 SE2d 435) (1988).

3. Plaintiffs’ suit is not time-barred by the statute of limitation in OCGA § 9-3-73 (b).

Plaintiffs’ case involves misdiagnosis. In most such cases, “ ‘the injury begins immediately upon the misdiagnosis due to the pain, suffering or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. [Cit.] The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. [Cit.]’ [Cit.]” Surgery Assoc., P.C. v. Kearby, 199 Ga. App. 716, 717 (405 SE2d 723) (1991). This is not always the case. Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988).

The injury in this case was the development of the neovascular glaucoma necessitating enucleation of the child’s eyeball. As in Whitaker, plaintiffs are not alleging that Zechmann’s misdiagnosis and failure to disclose and refer her to an ophthalmologist caused the child to have Coats’ disease; plaintiffs’ evidence shows that she had it all along or at least during the time of the ministrations by Zechmann. Nor are plaintiffs complaining about the loss of vision in the eye because the vision was significantly impaired by the time of Zechmann’s initial examination and the child was virtually blind in that eye by the time of the last office visit.

The gravamen of the complaint is the development of the painful glaucoma, approximately four years after Zechmann’s last contact with the child, which ultimately required the eye’s removal. The subsequent glaucoma and enucleation allegedly would not have occurred if the Coats’ disease had been properly diagnosed by Zechmann at that time or if Zechmann had referred the child to a physician for further diagnosis, and appropriate treatment for the disease had begun. “When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. [Cit.]” Whitaker, supra at 708 (1) citing Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984). See also the writer’s special concurrence in Jones v. Lamon, 206 Ga. App. 842, 847 (426 SE2d 657) (1992), in that effectively under OCGA § 9-3-71, there may be a “discovery-of-the-injury rule, at least when occurrence is simultaneous with knowledge of the occurrence.” Compare Stone v. Radiology Svcs., P.A., 206 Ga. App. 851 (426 SE2d 663) (1992).

The first manifestation of the severe glaucoma occurred in February 1990 when the child complained of eye pain and plaintiffs took her for treatment. This was the only new symptom experienced by the child since the examinations and treatment by Zechmann which indicated anything beyond the acknowledged and accepted loss of vision. Thus, the statute of limitation commenced in February 1990 and the suit filed on January 6, 1992 was not beyond it.

4. Nevertheless, absent fraud, plaintiffs’ suit is laid to rest by the statute of repose in OCGA § 9-3-73 (c) (2).

This subsection provides that an action for medical malpractice may not be brought by or on behalf of a minor: “(A) After the tenth birthday of the minor if such minor was under the age of five years on the date on which the negligent or wrongful act or omission occurred; or (B) After five years from the date on which the negligent or wrongful act or omission occurred if such minor was age five or older on the date of such act or omission.”

The time for ultimate repose is not computed from the time the cause of action arises even in cases in which the injury is subsequent to the time of medical treatment, but rather it occurs in relation to the negligent or wrongful act or omission. See Lasoya v. Sunay, 193 Ga. App. 814, 815 (1) (389 SE2d 339) (1989), and Whitaker, supra at 707 (1), which recognize the distinction in the context of OCGA § 9-3-71 as amended July 1, 1985.

The potential inequity of calculating the time of ultimate repose from the alleged negligent act or omission, in a situation like the present where the injury is subsequent, is apparent. However, “[r]egardless of the desirability of arriving at a particular state of the law, this [C]ourt has no authority to legislate, and any . . . changes such as the measuring point of the statute of repose must be addressed to the legislature unless the subject statute is unconstitutional, which is not within this [C]ourt’s authority to declare.” Bieling v. Battle, 209 Ga. App. 874 (434 SE2d 719) (1993). Bieling discusses the same measuring point for the statute of repose in OCGA § 9-3-71 (b).

Rachel was less than five years old on April 23 and June 5, 1985, the first two instances of alleged misdiagnosis and failure to refer for proper treatment. Under OCGA § 9-3-73 (c) (2) these claims were viable only until the child’s tenth birthday in July 1990. As to the last alleged act of negligence on January 29, 1986, the child was more than five years of age, necessitating suit no later than January 29, 1991. It was filed on January 6, 1992.

5. Plaintiffs’ contention that Zechmann’s alleged withholding of information regarding the cause of the child’s loss of vision constitutes time-tolling fraud is not substantiated.

The law is that “ ‘the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant’s own fraud.’ [Cit.] ‘Fraud sufficient to toll the statute must be actual rather than constructive, except where there exists a confidential relationship between the parties, such as that between physician and patient. Where persons sustain toward another a relation of trust and confidence, their silence when they ought to speak ... is as much a fraud in law as an actual affirmative false representation. The question of the existence of such fraud, and the related question of the patient’s exercise of diligence in discovering the injury and the fraudulent concealment, are ordinarily for jury determination.’ [Cits.]” Lasoya v. Sunay, supra at 815 (1). But there must be questions of fact, raised by the evidence, which need resolution.

Decided October 14, 1993

Reconsideration denied November 3, 1993

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., for appellant.

Hallman & Associates, Ronald W. Hallman, Sutton & Associates, Berrien L. Sutton, for appellees.

There is no evidence that Zechmann purposefully withheld the alternate possibility for the cause of loss of the child’s vision, i.e., optic nerve disease, as noted on the child’s records. It cannot be presumed that he withheld it fraudulently rather than negligently or possibly without fault. Even if there was evidence of Zechmann’s fraudulent concealment, it would not have tolled the running of the period of repose. Plaintiffs knew of the correct diagnosis and thus Zechmann’s alleged malpractice on February 16, 1990, allowing them time to file suit within the period of repose. See Hendrix v. Schrecengost, 183 Ga. App. 201, 203 (2) (358 SE2d 486) (1987), in which the plaintiff knew the facts necessary to show malpractice before the running of the statute of limitation.

Because of the state of repose in OCGA § 9-3-73 (c) (2), defendant Zechmann is entitled to judgment in his favor as a matter of law.

Judgment reversed.

Cooper and Smith, JJ., concur.

       The constitutionality of OCGA § 9-3-71 (b) is currently under attack in Craven v. Lowndes County Hosp. Auth., Case No. S93A0825, pending before the Supreme Court of Georgia.


text:
    A93A0896.
    ADVANCED DRAINAGE SYSTEMS, INC. v. LOWMAN.
    (437 SE2d 604)
   Pope, Chief Judge.

Plaintiff/appellant Advanced Drainage Systems, Inc. (ADS) filed suit on an account against defendant/appellee Lloyd Lowman d/b/a Lowman Septic. Lowman answered and counterclaimed against ADS. After a jury trial the trial court granted the plaintiff’s motion for directed verdict on its claim against Lowman and the jury returned a verdict in favor of Lowman on his counterclaim against ADS in the amount of $130,000. The trial court entered judgment against ADS in the amount awarded by the jury and denied ADS’ motion for new trial. ADS appeals.

Many of the facts pertinent to the underlying counterclaim are undisputed. ADS manufactures graveless leach bed tubing commonly referred to as SB-2 pipe. That pipe is designed to be used as part of a waste water treatment system to move effluents from the septic tank into the soil. Prior to the introduction of leach bed tubing, gravel systems were exclusively used for that purpose in the area in and around Pierce County, where Lowman engaged in the business of installing septic tank systems.

After SB-2 pipe was approved for use in the Pierce County area, Lowman installed approximately 185 septic tank systems using that product between 1984 and 1988. Of those systems, approximately 25 failed. Lowman claims that the reason those systems failed is the SB-2 pipe is not suitable for use in the Georgia coastal plain area where Pierce County is located, contrary to ADS’ assurances otherwise. Lowman further testified that when these systems began to fail he contacted the ADS salesperson with whom he had dealt and the salesperson told him to fix those systems and ADS would reimburse him. Lowman repaired several of the systems but was not reimbursed by ADS.

Viewing the evidence in the light most favorable to support the verdict, the jury was also authorized to find from the evidence that ADS through its agents and brochures represented that the SB-2 pipe could be used in all types of site conditions where gravel systems are permitted. Evidence was presented by Lowman that the soil conditions and high water table in the area where Lowman installed the SB-2 pipe were such that a system using SB-2 pipe would not function properly without special site preparation.

1. ADS contends Lowman’s claim for damage to reputation is unsupported by the evidence because there was no showing of wanton or wilful misconduct by ADS. Contrary to Lowman’s contention otherwise, our review of the record reveals that this issue was properly raised at trial.

“[D]amages for injury to reputation . . . are generally not recoverable in an action premised on mere negligence where no physical injury is suffered by the plaintiff, unless the elements of willfulness or wantonness have entered into the case.” Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 415 (2) (306 SE2d 340) (1983), aff’d 252 Ga. 149 (311 SE2d 818) (1984). Lowman does not contend and there is no evidence that he suffered physical injury as the result of ADS’ actions relating to this case. Lowman contends, however, that there is evidence of wilful and wanton conduct in this case because he presented evidence that ADS knew SB-2 pipe would not work in the Pierce County area but despite that knowledge misrepresented that a pipe system would work as well as the conventional gravel system in meetings with health officials, Lowman, and at least one of Lowman’s customers. A review of the record reveals that when ADS began to sell SB-2 pipe in the Pierce County area in either 1983 or 1984 it had no knowledge that there would be a problem with use of that system in the type soil found there. The evidence showed that the only study available in 1984 concerning how the SB-2 systems performed was a study conducted by B. L. Carlile in Montgomery County, Texas in 1981. In that study only one system was observed in Leefield-type soil (fine sand), which is the type soil present in Pierce County. The results of the Texas study indicated only a minor problem with use of such a system. The Texas study also showed that high water tables negatively effected the performance of the SB-2 pipe system but that factor was more critical in evaluating the effectiveness of conventional systems. In fact, the claim that Lowman contends was false and constitutes the basis for his claim of fraud against ADS is contained in the conclusion of that report; that is, where conventional systems function satisfactorily so should systems using SB-2 pipe.

Although the actual study was not made a part of the record, oral evidence was presented that ADS commissioned a study by the same person who conducted a study in 1984 of the use of SB-2 systems in the north Florida area, where fine sand-type soil is prevalent as in the Pierce County area. The results of that study were made available to ADS in 1987 and it concluded that in areas in which fine sand was found the pipe systems had to be made 20 percent longer before they would function properly. No evidence was presented that the misrepresentations upon which Lowman and others allegedly relied were made after 1987 when ADS had knowledge of the problems associated with the use of SB-2 pipe in areas where fine sand is found. Thus, the record does not support a finding of wanton and wilful conduct by ADS. Lowman’s claim for damage to reputation should not have been presented to the jury. Under the facts of this case, this cannot constitute harmless error; therefore, ADS is entitled to a new trial.

2. We will address ADS’ remaining enumerations of error which are capable of repetition on remand. ADS contends Lowman’s tort claims are barred by the economic loss rule. Lowman argues the economic loss rule is not applicable because he suffered personal injury in the form of reputation damage. That argument is controlled by our holding in Division 1, supra.

The economic loss rule provides that absent personal injury or damage to property other than to the allegedly defective product itself an action in negligence does not lie and any such cause of action may be brought only as a contract warranty action. Long v. Jim Letts Oldsmobile, 135 Ga. App. 293 (217 SE2d 602) (1975). The rationale underlying this rule is that when a defective product has resulted in the loss of the value or use of the product itself, or the cost of repairing it, the plaintiff is merely suing for the benefit of his bargain. Vulcan Materials Co. v. Driltech, 251 Ga. 383, 387 (306 SE2d 253) (1983). Two exceptions exist to this general rule: (1) the accident exception, which allows a plaintiff to recover in tort when there is a sudden and calamitous event that not only causes damage to the product but poses an unreasonable risk of injury to persons and other property, Vulcan Materials Co., 251 Ga. at 388; and (2) the misrepresentation exception, which was defined by our Supreme Court as follows: “[0]ne who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly.” Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681-682 (300 SE2d 503) (1983). In setting forth the second exception our Supreme Court “ ‘approved the Restatement of Torts 2d, § 552 (1977) which sets forth essentially the same five elements to recover as are required for fraud.’ ” American Legion v. Foote & Davies, Inc., 193 Ga. App. 225, 228 (3) (387 SE2d 380) (1989) (quoting Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795 (2) (c) (359 SE2d 920) (1987)).

Assuming without deciding that a claim based on the misrepresentation exception can arise from an underlying sale of goods, we reject Lowman’s contention that the misrepresentation exception set forth in Robert & Co. Assoc. is applicable in this case. As we recently noted in Bates & Assoc. v. Romei, 207 Ga. App. 81, 84-85 (426 SE2d 919) (1993), before liability can attach under the misrepresentation exception false information must be provided to a foreseeable person that the supplier of the information was manifestly aware would use the information and that foreseeable person must rely upon the information to their detriment. As we discussed above the record does not support Lowman’s claim that ADS knew its representation concerning how the SB-2 pipe could be used in the soil conditions existing in and around Pierce County was false at the time the alleged misrepresentations were made.

Decided September 10, 1993

Reconsideration denied November 3, 1993.

Dillard, Bowers & East, Daniell S. Landers, for appellant.

Douglas L. Gibson, for appellee.

3. As this case is remanded for retrial, we will not address ADS’ argument that Lowman’s damages should be limited to the actual costs he incurred repairing the failed SB-2 pipe systems. At trial Low-man may present evidence of incidental and consequential damages as well. OCGA § 11-2-715.

Reversed and remanded with direction.

Birdsong, P. J., and Andrews, J., concur.

         The economic loss rule does not bar actions for damages to injuries to persons and other property. Bates & Assoc. v. Romei, 207 Ga. App. 81, 83 (4) (426 SE2d 919) (1993).

       The Restatement of Torts 2d, 552 (1977) provides in pertinent part: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” Robert & Co., 250 Ga. at 681, n. 1.


text:
    A93A0912.
    PATTERSON v. THE STATE.
    (437 SE2d 602)
   Pope, Chief Judge.

After a non-jury trial defendant was found guilty of possession of a controlled substance and criminal trespass. Defendant appeals.

1. Defendant first contends the trial court erred in denying his motion to suppress. A controlled substance was found in defendant’s possession when he was searched incident to his arrest for criminal trespass. Defendant argues that at the time of his arrest the arresting officer did not have probable cause to believe that defendant had committed the offense of criminal trespass; therefore, defendant contends his arrest for that crime and the subsequent search incident to that arrest were illegal and the trial court erred by denying his motion to suppress.

During the motion to suppress hearing, the arresting officer testified that he had been informed during police department meetings that the police department had received complaints about loiterers drinking and engaging in suspected drug activity on the porch shared by 820 and 822 East Bolton Street in Savannah, which was located in the area patrolled by the arresting officer. On the day defendant was arrested, the officer observed six or seven people on the porch of that house. When he approached the house and inquired why these people were on that porch, all occupants on or around the porch were identified as either a resident or a guest of a resident except defendant. The officer further testified that defendant told him he was there to visit the man who lived downstairs. When the officer asked that resident, Jimmy Garrett, whether the defendant was his visitor, Garrett denied defendant was his visitor and further stated that he had asked the defendant to leave his porch on another occasion. After speaking to Garrett, the officer placed defendant under arrest. Thereafter he conducted a search of defendant and found a bag containing a white powdery substance, which was later determined to be cocaine.

We find no merit to the defendant’s arguments that his arrest for criminal trespass was pretextual because the arresting officer did not establish the identity of the alleged victims in his report, because the State did not locate and interview any alleged victims or because the alleged victim did not swear out a warrant for defendant’s arrest. Furthermore, we reject the defendant’s argument that certain inconsistencies between the officer’s testimony at trial and during the motion to suppress hearing constitute a basis for finding that defendant’s arrest on criminal trespass charges was pretextual. The officer’s testimony was consistent during the hearing on defendant’s motion to suppress and any inconsistencies between that testimony and his testimony at trial were minor.

After the trial court denied defendant’s motion to suppress, defendant was allowed to make an offer of proof as to testimony from Garrett. Although the record does not reflect the purpose for which this offer of testimony was made, we will assume arguendo the trial judge considered that testimony in deciding whether the contraband found on defendant’s person during his arrest should be suppressed. Garrett acknowledged he told the officer on the day defendant was arrested that he did not know defendant; however, he denied telling the officer he had asked defendant to leave on a prior occasion.

“Factual and credibility determinations . . . made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. [Cits.]” Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974). The trial judge apparently resolved any inconsistencies between the arresting officer’s and Garrett’s accounts of what happened on the day of defendant’s arrest in favor of the arresting officer. The trial court’s denial of defendant’s motion to suppress is supported by the record and does not constitute reversible error in this case.

2. Defendant contends the trial court erred in finding defendant guilty of the crime of criminal trespass. We agree and reverse defendant’s conviction on that charge.

Decided September 9, 1993

Reconsideration denied November 3, 1993.

Mark B. Beberman, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly D. Rowden, Assistant District Attorney, for appellee.

Defendant was charged with committing the crime of criminal trespass by “knowingly and without authority, remain[ing] upon the premises of 820 East Bolton Street after receiving notice from an authorized representative of the rightful occupant to depart. ...” The only evidence presented by the State that defendant was given notice to depart from that address and refused to do so was the arresting officer’s hearsay testimony that the occupant of that address told defendant to leave his porch on another occasion. Pursuant to OCGA § 24-3-2, hearsay evidence may be presented to explain the conduct of the investigating officer and is original evidence to explain his conduct but cannot be used as original evidence to prove defendant’s guilt. Latimore v. State, 170 Ga. App. 848 (1) (318 SE2d 722) (1984).

The State argues that Garrett’s admission that he told the arresting officer he did not know defendant at the time he was arrested and his testimony that he did not remember whether he told the officer he had told the defendant to leave on a prior occasion is sufficient direct evidence to support defendant’s conviction for criminal trespass. We do not agree. Notice is an essential element of the crime of criminal trespass and must be proved by the State beyond a reasonable doubt. Rayburn v. State, 250 Ga. 657 (2) (300 SE2d 499) (1983). The State failed to prove beyond a reasonable doubt that defendant had notice not to enter the porch shared by the 820 and 822 East Bolton residents. Although Garrett did not remember what he said to the officer concerning his prior conversations with defendant, he specifically testified he had never told defendant to leave the porch. While what Garrett told the officer explains the officer’s conduct and can be considered by the trial court when determining if the officer had probable cause to arrest defendant, any statement by Garrett to the officer cannot constitute the basis for defendant’s knowledge not to be present on the subject property. Moreover, the State did not produce evidence that the woman residing in 822 East Bolton ever instructed defendant not to enter the porch area. Accordingly, defendant’s conviction for criminal trespass must be. reversed.

3. In light of our holding in Division 2, it is not necessary to address defendant’s remaining enumerations of error.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.

       Prior to making an offer of proof of Garrett’s testimony, defendant attempted to establish that he was visiting the woman who lived upstairs from Garrett at the time he was arrested. A friend of defendant testified defendant was present at 820 and 822 East Bolton on the date in question because defendant had accompanied him to visit his girl friend. Thus, defendant presented contradictory versions of why he was present at 820 and 822 East Bolton on the day he was arrested.


author: Smith, Judge.

text:
    A93A0922.
    LANE v. THE STATE.
    (437 SE2d 479)
   Smith, Judge.

Chuck Lane was convicted on a twelve-count indictment of aggravated assault, possession of a firearm during the commission of a crime, possession of a firearm by a convicted felon, theft by taking, burglary in two counts, and simple assault. He was acquitted on a second count of aggravated assault, a second count of possession of a firearm in the commission of a crime, as well as charges of theft by receiving stolen property and criminal attempt. A nolle prosequi was entered on the remaining count of fleeing or attempting to elude a police officer. Lane appeals following the denial of his motion for new trial.

1. Lane enumerates as error the denial of his motion to sever offenses pursuant to OCGA § 16-1-7 (c). The sequence of events encompassing the charges against Lane began when a 1978 Ford Granada was stolen on the morning of November 1, 1989 at approximately 7:00 a.m. in Warner Robins, Georgia. When the owner recovered his automobile a day later, three letters addressed to Lane were found in the glove compartment. The jury acquitted Lane on the charge of theft by receiving stolen property with respect to this incident.

Early that afternoon in Henderson, Georgia, Mrs. Rae Hooker awoke from a nap and heard something upstairs she thought was a squirrel. She remembered taking laundry upstairs, but could recall nothing else prior to seeking help because she was hurt. She had been struck in the head with a hammer and her home burglarized. The jury convicted Lane on the burglary and aggravated assault charges resulting from the attack on Mrs. Hooker.

Soon after the approximate time Hooker was assaulted, an eyewitness alerted local residents that someone was attempting to break into the home of a neighbor, Wayne Marshall. Items belonging to Hooker were later discovered at the Marshall home, as well as pry marks in the fresh paint on Marshall’s kitchen window. Lane was charged with, and acquitted of, criminal attempt in relation to this incident.

Responding to the eyewitness alert, a retired Georgia State Patrol officer, Dozier Blackstock, drove to the Marshall home and found Lane walking away from the direction of Marshall’s residence toward the Hooker home. Blackstock then got into the pickup truck of his father-in-law, Charlie Kersey, and Blackstock and Kersey followed Lane, watching him as he walked along Highway 41. In the meantime, Blackstock’s wife called the local sheriff’s office.

Kersey eventually stopped his truck as Blackstock called out to Lane, requesting that he wait because someone from the sheriff’s office was on his way and would want to talk to him. Lane then approached Blackstock and Kersey, put his hands on the hood of Kersey’s truck, and allowed Blackstock, who was plainly armed, to search his person. A struggle followed. Lane managed to gain control of Blackstock’s firearm, then drove away in Kersey’s truck. Lane was accused of assaulting each man separately with the weapon and of stealing Kersey’s truck. Lane was convicted of aggravated assault and possession of a firearm during the commission of a crime in relation to the offense against Blackstock, acquitted of the same charges with respect to Kersey, and convicted of theft by taking with respect to Kersey’s truck. Lane was also convicted of possession of a firearm by a convicted felon.

Little more than an hour later Blackstock and several other townspeople again saw Lane in the stolen truck. Blackstock and the others gave chase. The truck was wrecked near the home of Willie T. Ridley, where Lane was finally apprehended. When Ridley arrived home later that day, he found his “Sunday pants” missing, discovering instead another pair which contained within one of its pockets Lane’s driver’s license. When Lane was apprehended, he was wearing pants that were “falling down.” Lane was convicted of burglary with respect to this incident.

Lane argues that the charges against him were not so similar as to require a denial of his motion for severance, and that there was no single scheme, plan, or series of acts connected together that would authorize the denial of his severance motion. “A denial of severance is reviewed under an abuse of discretion standard. [Cit.] Offenses may be tried together when they are based on the same conduct or constitute a series of acts connected together (or when they constitute part of a single scheme or plan). [Cit.]” Davis v. State, 263 Ga. 5, 6 (3) (426 SE2d 844) (1993). “ ‘It is not an abuse of discretion in the interest of justice for the judge to refuse a motion for severance of the trial of multiple charges where the crimes alleged were part of a continuous transaction conducted over a relatively short time, and “. . . from the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of another. . . .” [Cit.]’ ” Smith v. State, 186 Ga. App. 303, 307 (2) (367 SE2d 573) (1988).

With the arguable exception of the theft by receiving charge involving the incident in Warner Robins, of which Lane was ultimately acquitted, we find that all of the offenses formed a series of acts closely connected in time, involving common witnesses and evidence. We do not find the number of offenses charged in this case, nor the complexity of the evidence, to be such that the trial court abused its discretion in denying Lane’s motion to sever. Smith, supra at 307-308 (2). See generally Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975).

2. Lane enumerates as error the denial of his motion to suppress two statements made at the time he was arrested. Appeal counsel offers that the motion was “apparently” denied prior to jury selection. We find no transcript of any pretrial hearing or ruling on the motion in the record before us, and no clear indication of the court’s ruling on the motion as to each statement. From the trial transcript, it appears that Lane and the State agree that the trial judge ruled both statements admissible prior to trial. Without a written record of the evidence presented on the motion, however, as opposed to that presented at Lane’s trial without objection, there is nothing for us to review. See Boston v. State, 185 Ga. App. 740, 741-742 (2) (365 SE2d 885) (1988). This enumeration is without merit.

3. Lane asserts error in the overruling of an objection to the introduction of blood samples of one- of the victims, Rae Hooker, made on the ground that the State could not provide the name of the person drawing the blood. “In order to render admissible testimony concerning expert analysis of an essentially fungible item such as a blood sample or a drug, the prosecution must have various persons who had custody of the item testify to their receipt and retention of the substance until delivery to some other person. [Cit.] This is referred to as the chain-of-custody requirement, and its purpose is, of course, to ensure that the drug or blood sample is in fact that taken from the [person in question].” Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983).

The officer taking immediate custody of the blood sample in this case was present and watched as the sample was drawn from Hooker. The identity and testimony of the person physically taking the sample is therefore irrelevant to the limited purpose of ensuring that the sample offered was in fact drawn from Hooker. Moreover, no argument is advanced suggesting that the potential lack of expertise on the part of the person drawing Hooker’s blood is in any way relevant to the probative value of the sample itself. We find no error.

4. In separate enumerations, Lane raises the general grounds and the denial of his motion for directed verdict on each of the seven counts resulting in a conviction, but fails to present argument, citation of authority, or reference to the record specific to any single count. Lane merely offers the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), contending that “each and every offense of each of the three (3) incidents to which he was convicted [should] be analyzed separately to ascertain whether the State of Georgia has . . . met [its] burden,” and adding that “each incident presented different types of evidence, testimony and issues.” We agree. Accordingly, since Lane has failed to do precisely what he rightly contends must be done, these enumerations are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). O’Dell v. State, 200 Ga. App. 655 (1) (409 SE2d 54) (1991).

Decided October 14, 1993

Reconsideration dismissed November 3, 1993.

Jeffrey L. Grube, for appellant.

Edward D. Lukemire, District Attorney, A. Robert Tawse, Jr., Assistant District Attorney, for appellee.

5. The remaining enumerations are meritless.

Judgments affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0982.
    DEPARTMENT OF TRANSPORTATION et al. v. SMITH.
    (437 SE2d 811)
   Pope, Chief Judge.

We granted the application for interlocutory appeal filed by the Georgia Department of Transportation and certain employees of the DOT named as individual defendants; namely Don Watson, Edwin Thompson, Jamie Golden and Hugue Fergusen, from the trial court’s denial of their renewed motion for summary judgment and motion to transfer this case to the Superior Court of Columbia County.

This action arises out of a single car accident by plaintiff Glinda Smith which occurred on Roy Owens Road in Columbia County on February 9, 1990. Plaintiff filed suit against the DOT and several individual defendants claiming the defendants’ failure to design the road properly and to maintain the shoulder of that road in a reasonably safe condition caused her accident and injuries arising therefrom.

1. With regard to plaintiff’s claims for failure to maintain the roadway in question, the defendants argue that the trial court erred in denying their motion for summary judgment because the portion of former State Route 47 in question had been transferred from the state highway system to Columbia County on October 14, 1987 and neither the DOT nor any of its employees had a duty to maintain the road. Public roads in Georgia are classified as part of the state highway system, the county road system or the municipal street system. OCGA § 32-4-1. With certain exceptions not present in this case the DOT is prohibited from maintaining a road that is not part of the state highway system. OCGA § 32-2-61 (e); Jackson v. Dept. of Transp., 201 Ga. App. 863, 864 (412 SE2d 847) (1991). The record reflects that the DOT removed the road in question from the state highway system. OCGA § 32-4-21 states that either the Board of Transportation or the Commissioner of the Department of Transportation, when the board is not in session, may designate roads as a part of the state highway system. That statute further requires that any change in the system must be recorded on the official map and in the records of the highway system as provided for in OCGA § 32-4-2 (a) and (b). By order dated October 14, 1987, the Commissioner ordered that the road be removed from the state highway system and that another road be redesignated as State Route 47. The defendants presented the. affidavit testimony of the Chief of Cartography for the DOT who averred that on October 14, 1987, Roy Owens Road was removed from the official map for the state highway system and placed on the official map for the county road system. Defendants also submitted evidence that Columbia County effectively designated Roy Owens Road as part of the county road system by adopting a resolution accepting it as required by OCGA § 32-4-40. Furthermore, defendants submitted the affidavit testimony of the road superintendent for Columbia County who averred that since October 14, 1987, Columbia County has been responsible for maintaining Roy Owens Road. We hold the DOT presented sufficient evidence to meet its burden of establishing there is no factual dispute with regard to the road’s status as part of the county road system on the date of plaintiff’s accident.

Plaintiff did not meet her burden of pointing to specific evidence giving rise to a triable issue of fact concerning the status of the road. We find no merit in plaintiff’s argument that the DOT must also transfer a deed to Columbia County for the subject road before the road is removed from the state highway system. .If our legislature had deemed a deed necessary to make a transfer from the state highway system to the county road system it would have so provided. Compare OCGA § 32-3-3 (d) (requiring a warranty deed or quitclaim deed when a state agency, county, or municipality acquires rights in real property through dedication) and OCGA § 32-3-3 (b) (providing for exchanges of property for public road purposes without requiring a transfer of deeds).

2. Plaintiff argues that even if the DOT transferred Roy Owens Road from the state highway system to the county road system, the defendants are still not absolved from negligence. In analyzing this issue we consider separately plaintiff’s claims for negligent maintenance and design. With regard to plaintiff’s claim for negligent maintenance, plaintiff argues that because the DOT maintained the road until October 1987 and the condition of the road at the time it stopped maintaining it was basically the same as on the date of plaintiff’s accident, defendants are liable to plaintiff. We do not agree. As we discussed in Division 1, the road in this case was a part of the county road system and had been for more than two years at the time of plaintiff’s accident. Whereas the DOT has a duty to maintain any highway that is a part of the state highway system, after it transfers a highway from that system it is prohibited from maintaining it. OCGA § 32-2-61 (e); Jackson v. Dept. of Transp., 201 Ga. App. at 864. We hold that in this case the DOT owed no duty to plaintiff to maintain the subject roadway because the DOT had been statutorily prohibited for more than two years from maintaining the roadway at the time of plaintiff’s accident and the evidence shows that the alleged defective condition was open and obvious; therefore, Columbia County, which accepted the road for maintenance, either knew or should have known of the condition.

Plaintiff’s reliance on our Supreme Court’s decision in Dept. of Transp. v. Land, 257 Ga. 657 (362 SE2d 372) (1987) as support for its argument that the defendants should be held liable to plaintiff for negligent maintenance in this case is misplaced. In Land, the plaintiff sued the DOT and Whitfield .County, claiming that his injuries and his wife’s wrongful death'in an automobile collision at the intersection of two Georgia highways were caused by the improper design specifications and maintenance of the intersection traffic signal. Our Supreme Court held that if the allegation contained in plaintiff’s complaint were found to be true and the DOT and county were jointly involved in the installation, maintenance and control of the traffic light in question, the DOT and the county would be joint tortfeasors and jointly and severally liable. Id. at 657-658. Thus, in Land the DOT had a statutory duty to maintain the two state highways, the intersection of which allegedly was controlled by a defective traffic signal; in this case, however, the DOT was statutorily prohibited from maintaining the roadway for more than two years.

Plaintiff’s reliance on our decision in Bush v. City of Gainesville, 105 Ga. App. 381 (124 SE2d 667) (1962) is also misplaced. In Bush, this court held that because specific statutory language included city streets in the state highway system but still required the municipalities to maintain those streets, the City of Gainesville had a duty to maintain a city street after it was opened for traffic even though that street was part of the state highway system and the state was doing certain construction work on that street at the time of plaintiff’s accident. Thus in that case the city had a statutory obligation to maintain the street in question.

Our holding concerning the DOT’s liability stemming from negligent maintenance is supported by the Michigan Supreme Court’s decision in Killeen v. Dept. of Transp., 438 NW2d 233 (Mich. 1989), a case which both parties argue offers persuasive authority in this case. In Killeen, two cases were consolidated on appeal in which suit was brought against the Michigan DOT, alleging design, construction and maintenance defects on two roads which were redesigned and reconstructed by the DOT and then returned to the county road commissions before the accidents giving rise to the lawsuits occurred. The Michigan Supreme Court held “that the highway department is subject to liability for injury sustained by reason of failures in design or construction while the highway department had jurisdiction, although injury is not sustained as a result of such failure until after retransfer of jurisdiction to the county road commission, and that the county road commission is responsible for any failure, after jurisdiction is returned to it, to keep and maintain in repair the redesigned and reconstructed highway.” (Emphasis supplied.) Id. at 238-239.

3. The defendants do not contend that they are absolved from claims for negligent design or construction because the DOT transferred the road in question to the county. However, they contend that plaintiff’s claims for negligent design and construction must fail because the record is devoid of evidence that the individuals named as defendants had a role in the design or resurfacing of Roy Owens Road. As our Supreme Court noted in Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987), the DOT as a state agency is entitled to sovereign immunity pursuant to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. Id. at 536. However, that immunity is waived to the extent that there is insurance. Id. The plaintiff alleges in her complaint, and the DOT apparently concedes, that the DOT has waived immunity in this case by purchasing an insurance policy in which its employees are named insureds. Therefore, to the extent any employee of the DOT can be held liable to plaintiff for negligent design or construction, the DOT’s sovereign immunity is waived. Price v. Dept. of Transp., 257 Ga. at 537.

“ ‘A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).’ Lau’s Corp. v. Haskins, 261 Ga. 491 [, 495 (4)] (405 SE2d 474) (1991).” Ekokotu v. Pizza Hut, 205 Ga. App. 534, 538 (422 SE2d 903) (1992). In support of their motion for summary judgment on plaintiff’s claims for negligent design and construction, defendants Don Watson, Edwin Thompson, Jamie Golden and Hugue Fergusen submitted their affidavit testimony in which they all aver that they did not design or participate in the construction of the road at the time it was built, which was in the 1920s. Plaintiff presented no evidence that any individual defendant participated in the original design and construction of the subject road. Thus, any claims concerning the original design and construction of the road must fail.

With regard to repaving projects, Defendant Hugue Fergusen further avers in his affidavit that he never participated in the design or construction of any project to resurface the road. Defendants Watson, Thompson and Golden stated in their affidavits that the last repaving project was in 1977 and they did not participate in the design or construction of that repaving project. Clearly Fergusen’s affidavit testimony is sufficient to deny participation in the construction and design of a repaving project that occurred in 1977 or thereafter. Any other claims plaintiff asserts against defendant Fergusen relate to maintenance responsibilities and as we held in Division 1 the defendants are not liable to plaintiff for failing to properly maintain the subject road under the facts of this case. Accordingly, the trial court erred in denying the defendants’ motion for summary judgment to the extent that it concerned defendant Fergusen.

With regard to the other defendants, their affidavits are sufficient to show an absence of evidence they participated in the repaving project which occurred in 1977. In order to create a triable issue of fact, plaintiff, through the deposition testimony of either residents of Roy Owens Road or people who traveled frequently on the road during the 1980s, presented evidence that the road was repaved in the 1980s. Plaintiff also points to the job descriptions of these individual defendants and contends that their job responsibilities made them responsible for designing and constructing the road in question during the late 1970s and early 1980s. We do not agree. When those job descriptions are examined carefully, the descriptions make it clear that these individual defendants had only maintenance responsibilities for the road in question. Thus, even if the road was repaved after 1977 there is an absence of evidence that these individual defendants were responsible for the design and construction of the road during any repaving occurring during the late 1970s and early 1980s. Accordingly, the trial court erred in denying the motion for summary judgment as it concerns claims for negligent design and construction of resurfacing projects on Roy Owens Road with regard to defendants Thompson, Golden and Watson as well.

Decided October 13, 1993

Reconsideration denied November 3, 1993

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Eric A. Brewton, Susan J. Levy, Assistant Attorneys General, for appellants.

4. We reject the defendants’ argument that any action for negligent design and construction is barred by OCGA § 9-3-51, requiring suits to be brought within eight years from the date of an improvement to real property. Defendants contend the last improvement to Roy Owens Road occurred in 1977, the date of the last resurfacing. As we noted in Division 3, there remains an issue of material fact concerning whether that road was repaved in the 1980s. Plaintiff presented evidence that the road was repaved as late as 1988, and plaintiff’s complaint in this case was filed on July 24, 1990.

5. We also reject the DOT’s argument that the trial court erred in refusing to grant its motion to change venue. As the DOT correctly contends, OCGA § 32-2-5 states venue is proper in cases against the DOT in the county in which the cause of action arose, which in this case would be Columbia County. Improper venue can be waived by a party. See Williams v. Willis, 204 Ga. App. 328, 329 (419 SE2d 139) (1992). This case was initially filed in Fulton County. Although the DOT raised improper venue as a defense in its initial responsive pleading, it claimed proper venue was in Gwinnett County. Later, pursuant to a consent order submitted by all parties, venue was changed to Richmond County. By consenting to the change of venue to Richmond County, the defendants have waived their right to have this case heard where the cause of action arose.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.

Stanley G. Jackson, for appellee.

       Such an exchange is authorized by OCGA § 32-3-3.

       While there may be other cases in which the time interval between transfer of responsibility for maintenance will not be determinative in deciding the causation question, we leave that question for another day. Cf. Hargis v. City of Dearborn Heights, 192 NW2d 44 (Mich. App. 1971) (holding two-year interval between transfer of jurisdiction for subject bridge from the county to the city was one of the factors that could be considered by the jury when deciding whether county’s failure to erect a fence was the cause of plaintiffs accident).

       Effective January 1, 1991, Art. I, Sec. II, Par IX of the Georgia Constitution was amended to extend sovereign immunity to all state departments and agencies regardless of insurance. This case was’ filed on July 24, 1990, however, and the waiver of sovereign immunity that existed under the former constitutional provision was in effect at that time and applies to this case. Donaldson v. Dept. of Transp., 262 Ga. 49 (3) (414 SE2d 638) (1992).

       The DOT filed the affidavit of its risk manager stating that the DOT does not have a policy of liability insurance in which the DOT is a named insured.