text:
    A90A1192.
    HALL v. SCOTT USA, LTD. et al.
    (400 SE2d 700)
   Cooper, Judge.

Appellant brought this products liability action for injuries to his eye sustained in a fall from a motorcycle during a motorcross event. At the time of his injury, appellant was wearing protective goggles, and attached to the goggle lens was a cleaning device called “Roll-Off’s by Smith” which broke apart upon impact with the ground causing the injuries. The complaint alleged strict liability in tort and negligence and charged that under the names “Scott,” “Smith Goggles” and “Smith Goggle Company,” appellees Scott USA, Ltd. (“Scott”) and its general partner, CTF Enterprises, Inc. (“CTF”), defectively manufactured and designed Roll-Off’s and failed to provide warnings of the hazards of using the product. Appellees answered the complaint and denied designing, manufacturing, marketing or distributing Roll-Off’s or its packaging and further denied doing business as “Smith Goggles” or “Smith Goggle Company.” Appellees filed a third-party claim against DFG, Inc., Michael Brunnetto-Trustee, Irene Bardeen Alpine Trust and Smith Goggles alleging they were the actual designers, manufacturers and distributors. After discovery proceeded between appellees and third-party defendants, appellant amended his complaint to allege instead that appellees manufactured the lens and goggle in conjunction with third-party defendants; that third-party defendants, doing business as “Sport Optics” and “Smith Goggles,” actually assembled Roll-Off’s and attached it to the goggle lens; and that appellees authorized the marketing of its products under the names “Smith” or “Roll-Off’s.” Appellant moved to add third-party defendants as party defendants, and the trial court denied the motion. Appellees moved for summary judgment, and appellant requested a continuance of the hearing on the motion for summary judgment pursuant to OCGA § 9-11-56 (f) to allow for additional discovery. The trial court denied appellant’s motion for a continuance but granted the motion for summary judgment, and this appeal followed.

1. In his first enumeration of error, appellant contends the trial court erred in denying his motion to add and change the designation of third-party defendants. Appellant’s injury occurred on February 1, 1987, and appellees’ action against third-party defendants was filed on September 1, 1988. The two-year statute of limitation on appellant’s action expired on January 31, 1989, and six months later, on July 28, 1989, appellant moved the court to add and change the designation of the parties pursuant to OCGA §§ 9-11-14 and 9-11-21. In the original complaint, in addition to naming Scott and CTF as defendants, appellant stated that he anticipated adding “some individuals who are all presently residents of the State of Idaho who participated in the design, fabrication and manufacture of the product giving rise to the within stated claim” and argues on appeal that on the basis of that statement which he contends constituted a proper “John Doe” pleading (OCGA § 9-11-10 (a)), he should have been permitted to add or redesignate third-party defendants as party defendants pursuant to OCGA § 9-11-15 (c) despite the running of the statute of limitation. Appellant argues that the third-party defendants received notice of the action and their defense would not have been prejudiced if they had been redesignated as party defendants.

In Robinson v. Bomar, 122 Ga. App. 564 (2) (177 SE2d 815) (1970), this court held that leave of court is required to change a third-party defendant to a party defendant concluding that the change materially altered the status and exposure of the third-party defendant. In Robinson, since the plaintiffs did not obtain leave of court and no order was taken making the third-party defendant a party defendant within the applicable statute of limitation, the court held that the plaintiffs were barred by the statute of limitation from asserting their claim against the third-party defendant. Robinson, supra at 568. In the instant case, appellant sought leave of court six months beyond the statute of limitation; however, appellant argues on appeal that the instant case is distinguishable because the original complaint was filed as a “John Doe” pleading. “OCGA § 9-11-10 provides that a complaint may designate a party whose name is not known by any name and when the true name is determined, ‘the pleading may be amended accordingly.’ OCGA § 9-11-15 allows for amending pleadings to change parties at any time before the pretrial order is entered . . . such an amendment will relate back for purposes of the applicable statute of limitation [if certain conditions are met].” Harper v. Mayor &c. of Savannah, 190 Ga. App. 637 (1) (380 SE2d 78) (1989). In the instant case, appellant named only Scott USA and CTF Enterprises and did not designate an unknown defendant by “John Doe” or any other fictitious name; therefore, the complaint was not an effective “John Doe” pleading pursuant to OCGA § 9-11-10. However, OCGA § 9-11-15 has not been restricted to instances in which parties are substituted, but OCGA § 9-11-15 (c) has been broadly interpreted “to sanction relation back of amendments which add or drop parties. . . .” Cobb v. Stephens, 186 Ga. App. 648, 649 (368 SE2d 341) (1988). None of the cases interpreting the statute in this regard has done so in the context of the addition of the third-party defendant after the expiration of the statute of limitation. In Robinson, concerning the addition of a third-party defendant, this court held that “the adding or dropping of parties requires the exercise of a discretion by the court. ...” Robinson, supra at 567. In the exercise of its discretion in determining whether to add parties pursuant to OCGA § 9-11-21, the trial court should consider “whether the new party will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new party previously. [Cits.]” Horne v. Carswell, 167 Ga. App. 229, 230 (306 SE2d 94) (1983). In Bil-Jax, Inc. v. Scott, 183 Ga. App. 516,-517 (359 SE2d 362) (1987), the court stated that motions to amend were to be left to the discretion of the trial court, which would consider whether the party sought to be added “knew or should have known that the [action] would have been brought against it.” Bil-Jax, supra at 517. While the record demonstrates that third-party defendants were aware of the appellant’s charges against appellees at least as of the filing of the third-party complaint on September 1, 1988, and were defending against appellees’ claims by October 1988, appellant offered no excuse for the delay in attempting to add third-party defendants. Accordingly, we find that in the exercise of its discretion, the trial court did not err in denying appellant’s motion.

2. Appellant next contends the trial court erred in granting the motion for summary judgment on the basis that appellees did not design, fabricate, manufacture, market or distribute Roll-Off’s, nor were they aware of modifications or alterations made to its lens by subsequent purchasers which required appellees to warn against such alterations. Viewing the evidence in favor of appellant, the party opposing the motion for summary judgment, we find the following: The packaging indicates that Roll-Off’s is a film advance system manufactured by Smith Goggle. It consists of a roll of clear plastic which extends in front of a goggle lens so that when mud is thrown on the lens, the film can be advanced from a canister mounted on one side of the lens to a canister on the other end thereby providing the wearer with a clear view through the plastic film. Roll-Off’s can be purchased premounted on lenses made by Smith and by appellees, yet are also adaptable to many other lenses and shields. In the instant case, the Roll-Off’s was pre-mounted on a lens manufactured by appellees and worn by appellant in goggles also manufactured by appellees. The box in which the product was purchased bore Scott’s name in two places. The back of the box read, “Roll-Off’s are available premounted on SMITH or Scott goggle lenses. Adaptable to many other lenses and shields,” and the side read, “Mounted on SCOTT Lexan Lens.” Most prominent on the box, however, was the name of the product, Roll-Off’s by Smith. Interrogatory responses reveal that Smith Goggle was a trademark owned by Sport Optics, a general partnership of which Irene Bardeen Alpine Trust was a principal, and that Sport Optics had a contract with DFG, Inc., for the assembly of the canisters, the mounting of the canisters to lenses and distribution of the product. Appellant’s counsel provided an affidavit in defense of the motion in which he stated there also was a direct contract between appellees and DFG, Inc.; however, there is no evidence of the contents of the contract, nor was it produced.

In the complaint, appellant alleged that one of the canisters broke, injuring his eye; that the canisters and attachment points were made of hard, brittle plastic, not suitable for their intended use; and that the placement of the canisters was likely to cause injury. On appeal, appellant maintains that based on a “three-way contract” between appellees, DFG, Inc., and Sport Optics and the packaging of Roll-Off’s which bore Scott’s name, he demonstrated that appellees manufactured its lenses to be component parts of Roll-Off’s and that the combination of the goggle, lens and canisters was as a whole a defective product causing the injury.

“Whether proceeding under a strict liability or a negligence theory, ‘proximate cause’ is a necessary element of appellant’s case. [Cits.]” . . . “Under [OCGA § 51-1-11 (b)] strict liability is imposed for injuries suffered ‘because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate cause of the injury sustained.’ Thus the injury must be the proximate result of a defect in the product which existed at the time sold.” Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3) (279 SE2d 264) (1981). It is undisputed that appellant’s injury was due to the breaking apart of one of the canisters and that appellees had no role in the design, fabrication, manufacture, distribution or marketing of the canisters, in their placement on the lens, nor in the packaging of Roll-Off’s. In addition, despite the affidavit provided by appellant’s attorney in which he declares the existence of a contract between appellees, DFG, Inc., and Sport Optics, no such contract appeared in the record before the trial court and there is no other evidence that appellees authorized the marketing of its lenses by Sport Optics or Smith Goggles. “Generally, the determination of whether the component manufacturer is insulated from liability [for failure to warn of inherent dangers] depends upon the extent to which the product is altered by the assembler before it reaches the ultimate user.. . . [I]t would be ‘an unwarranted extension of the theory of strict liability’ to ignore significant changes to the product made by an intermediary.” Giordano v. Ford Motor Co., 165 Ga. App. 644 (1) (299 SE2d 897) (1983). Appellant has alleged no defect in the original design of the lens or goggles; what appellant contends was defective and caused his injury was added to the lens after it was sold by appellees. “One of the conditions for imposition of strict liability against a manufacturer of ‘defective’ products is that the product ‘is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.’ (Emphasis supplied.) [Cit.] In some cases it may be a jury question as to whether the product’s original design has been merely slightly or somewhat modified. In such cases, the jury must determine whether the original manufacturer’s design was defective and, if so, whether the proximate cause of the injuries sustained was the original defective design or the subsequent modification.” Talley, supra at 135. In the instant case, there is no evidence that the lens, when sold by appellees, was defective; that the lens was manufactured to be a component part of Roll-Off’s; that appellees had a role in the design, fabrication, manufacture and placement of the canisters on the lenses or that appellant’s injuries were proximately caused by the original design of the lens. Therefore, no jury question exists. “A manufacturer has the absolute right to have his strict liability for injuries adjudged on the basis of the design of its own marketed product and not that of someone else. [Cit.]” Id. We conclude that as to the strict liability, appellees are not liable as manufacturers of the product which was ultimately purchased by appellant and caused his injuries and therefore, had no duty to warn. Appellant also failed to demonstrate that appellees authorized the marketing of its lens by other parties. Accordingly, the trial court did not err in granting summary judgment as to appellant’s claims predicated on strict liability.

As to appellant’s claim founded in negligence, our inquiry is whether “ ‘ “(t)he maker of an article for sale or use by others [has used] reasonable care and skill in designing it. . .so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable. . . .” ’ (Emphasis supplied.) [Cits.]” Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (2) (319 SE2d 470) (1984). Appellant argues that based upon the contract discussed above, it was foreseeable that the lenses would become a component part of Roll-Off’s. However, as discussed above, there is no evidence that lenses were being produced by appellees for such a purpose. It appears from the record that the lenses were fully capable of being used in connection with goggles without Roll-Off’s. In addition, the negligence claim must also fail due to appellant’s failure to establish proximate cause. Union Carbide Corp. v. Holton, 136 Ga. App. 726 (1) (222 SE2d 105) (1975).

3. In his third enumeration of error, appellant argues that the court erred in denying his motion for a continuance pursuant to OCGA § 9-11-56 (f) to allow for additional time for the production of documents to demonstrate a contractual relationship between appellees and third-party defendants pursuant to OCGA § 9-11-56 (f). The record shows that the complaint was filed on December 21, 1987, the third-party complaint was filed on September 1,1988, and on May 17, 1989, the court extended discovery for six months. Appellees’ motion for summary judgment was filed on July 10, 1989, and on July 28, 1989, appellant served its first discovery requests on third-party defendants. The motion for summary judgment came before the court for argument on December 18, 1989, at which time, appellant requested additional time for discovery, particularly for the production of the alleged contract between appellees, Sport Optics and DFG, Inc. In an affidavit, appellant’s counsel explained that he was working with the other parties to facilitate the production of additional discovery; nevertheless, the court denied appellant’s motion. The decision to grant a continuance is a matter within the discretion of the trial court. OCGA § 9-11-56 (f). Based on our review of the record, we do not find that the trial court abused its discretion.

Decided December 5, 1990

Rehearing denied December 20, 1990

Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, for appellant.

Duncan & Mangiafico, George D. Duncan, Jr., Webb, Car lock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning, McLain & Merritt, Howard M. Lessinger, for appellees.

Judgment affirmed.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1305.
    LEHMAN v. ZUCKERMAN et al.
    (400 SE2d 704)
   Cooper, Judge.

Appellant, an experienced builder, and appellee Howard Zuckerman, a real estate investor, formed Seville Construction Group, a construction company in which appellant served as construction manager and Zuckerman was responsible for obtaining financing for company projects. Two other companies grew out of the construction company — Seville Equipment Leasing, which leased construction equipment to the construction company and Homes by Seville, which constructed single family homes. To supplement bank financing Zuckerman contributed his own money when necessary to complete projects, and when the real estate market began a downturn and the companies had difficulty covering expenses, Zuckerman provided more money to cover expenses. Eventually, Zuckerman decided to dissolve all three of the companies, and to facilitate the dissolution, appellant and Zuckerman executed a memorandum of understanding, which required appellant to repay Zuckerman what had been previously advanced for construction loans, material and subcontractor payments. When appellant refused to pay, Zuckerman brought the instant action to recover the principal balance plus interest. Zuckerman subsequently assigned his interest in the memorandum of understanding to Seville Holding Group, Ltd., which was added as a plaintiff to the action. Appellant answered the complaint and asserted a counterclaim for fraud and breach of a stock transfer agreement. The jury returned a verdict for appellees in the amount of $273,808.62, and this appeal follows the trial court’s entry of a judgment thereon.

1. In his first enumeration of error, appellant contends the verdict was not supported by the evidence because appellees failed to prove specifically what money was advanced for construction loans, material and subcontractor payments as provided in the memorandum. The record demonstrates that Zuckerman contributed a total of $675,914.07 toward the operation of the three companies, however, ultimately prayed in the complaint for $554,823.67, after adding interest and crediting reimbursements and the proceeds from the sale of two homes. At trial, Zuckerman testified that subsequent to the filing of the suit, other credits to the balance were identified which brought the total sought down to $413,256.19. The memorandum of understanding recited that as of its signing, the balance of funds owed to Zuckerman was $211,000. Appellant introduced into evidence a computerized list prepared by Zuckerman which identified each advancement made to the companies for which he sought reimbursement, the date, the amount, amounts repaid and periodic interest calculations. An official from the commercial real estate loan department of a bank provided a list of the bank’s prime interest rate charges during the relevant time period. Appellant contends that appellees’ damage calculation is erroneous and the product of guesswork, speculation and conjecture, pointing to Zuckerman’s less than precise references to figures using the terms “probably” and “around” and his admissions that mistakes were made in the interest calculation and that the amount prayed for represented all the money he put into the companies, including some expenses not recoverable under the categories specified in the memorandum, i.e., salary paid to the office manager. Zuckerman, however, defended the inclusion of salary paid to appellant to induce him to remain until the dissolution concluded, computer maintenance and interest, payments on his personal automobile and interest on loans for funds he borrowed personally and used to cover the companies’ shortfalls. Zuckerman admitted that his calculation contained errors, but maintained that the miscalculation “probably” benefited appellant “in the neighborhood” of “maybe” $1,000.

“Even though a verdict may be against the preponderance of the evidence, the appellate court cannot interfere with that verdict if it is supported by some evidence. [Cit.]” Costarides v. Skelton, 193 Ga. App. 470 (1) (388 SE2d 62) (1989). Contrary to appellant’s contentions, in the instant case, there was sufficient evidence to determine the amount of damages with reasonable certainty. Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 716 (165 SE2d 581) (1968).

2. In his second and third enumerations, appellant argues that the trial court erred in refusing to grant a directed verdict based upon appellees’ failure to prove damages stemming from the breach and failure to compute damages. “A verdict shall be directed only when the evidence demands — as distinguished from merely seeming to preponderate towards — a certain verdict. OCGA § 9-11-50 (a) requires ‘no conflict in the evidence as to any material issue’ in order for a directed verdict to be authorized. [Cit.]” Morris v. Futch, 193 Ga. App. 132 (1) (386 SE2d 905) (1989). The record demonstrates the existence of factual questions as to whether or not the damages claimed by appellees were recoverable under the memorandum; therefore, the trial court did not err in submitting the case to the jury.

3. Appellant next argues the trial court erred in permitting Zuckerman to testify as to appellees’ damages over his objections based upon the best evidence rule and hearsay. Appellant contends that Zuckerman’s testimony regarding his damages was not based on his own personal knowledge or on records he prepared, thus the testimony was inadmissible and further that Zuckerman should have been required to produce the checks representing his expenditures and statements evidencing the proceeds from the sale of property. The trial court did not err in admitting the testimony as proof of payment to the companies. The best evidence rule is applicable where the terms of a writing are material, in which case, the original writing must be produced. Merrill Lynch &c. Smith v. Zimmerman, 248 Ga. 580 (285 SE2d 181) (1981). “ ‘[It] does not apply to fact of payment of the charges. [Cit.]’ [Cit.]” Commercial Union Ins. Co. v. Smith, 179 Ga. App. 734 (3) (347 SE2d 701) (1986).

As to appellant’s contentions regarding hearsay, review of the transcript reveals no timely objection to Zuckerman’s testimony; hence, there is nothing for us to review. See Ely v. State, 192 Ga. App. 203 (3) (384 SE2d 268) (1989); Warren v. Jenkins, 190 Ga. App. 442 (2) (379 SE2d 19) (1989). This enumeration of error is without merit.

4. Appellant enumerates as error the admission of a chronological list prepared by Bank South of the prime rate from 1981 until 1989 as a business record. Appellant urges that no proper foundation was made for the introduction of the document. The bank employee testified that he was generally familiar with the method of record keeping at the bank and that it was in the regular course of the bank’s business to make such a document. Contrary to appellant’s contention, the witness stated that the list was made in the regular course of business at the bank, and his personal knowledge of the changes in the rate is not required. See Hines v. Good Housekeeping Shop, 161 Ga. App. 318 (5) (291 SE2d 238) (1982). We find, therefore, that the testimony provided a proper foundation, and the trial court did not err in admitting the list. See generally OCGA § 24-3-14; WGNX, Inc. v. Gorham, 185 Ga. App. 489 (2) (364 SE2d 621) (1988).

5. Appellant contends the trial court erred in admitting his financial statement. Appellees maintain that the statement was necessary to demonstrate appellant’s partial performance of the memorandum of understanding. Appellant charges that his verbal admission that he complied with the request for the statement was sufficient. The “ ‘(a)dmissibility of evidence is a matter which rests largely within the sound discretion of the trial court.’ [Cit]” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709) (1989). Furthermore, “ ‘ “[i]t is axiomatic in Georgia appellate law that an appellant to secure a reversal must show not only error but harm.” ’ [Cit.]” Estate of Sam Farkas v. Dougherty County School System, 178 Ga. App. 135 (342 SE2d 501) (1986). Appellant has not demonstrated any harm in the admission of the statement; therefore, this enumeration is without merit.

6. Appellant also contends the court erred in failing to charge as follows: “If damages are of a sort susceptible of proof, compensation is not to be awarded in the discretion of the jury. Rather, the amount found by the jury must be authorized by the evidence.” Our review of the charge as a whole shows that the substance of the charge above was amply covered by the court, although not in the exact language requested by appellant. Hence, there was no error in the denial of this request to charge. Shaw v. McDonald’s Restaurants of Ga., 191 Ga. App. 583 (2) (382 SE2d 632) (1989).

7. Appellant contends the trial court erred in charging the jury as follows: “I charge you that a representation is not fraudulent unless the complaining party has — was justified in relying thereon in the exercise of common prudence and diligence.. Where the representation consists of general commendations or mere expressions of hope, opinion, expectation, and the like, the party to whom it is made is not justified in relying upon it and assuming it to be the truth. Rather, he is bound to make inquiry and examination for himself so as to ascertain the truth.” Appellant argues that in the factual context of the instant case, the charge was an incorrect statement of law that confused the jury with respect to its consideration of the fraud claim, which charged that Zuckerman fraudulently procurred appellant’s acceptance of the memorandum and attempted to coerce from appellant sums to which Zuckerman was not entitled under the memorandum. While our review of the evidence adduced at trial reveals no misrepresentation with regard to the procurement of appellant’s acceptance of the memorandum, we find there was ample evidence with regard to the expenditures for which Zuckerman sought reimbursement to support a charge on fraud; however, the court erred in its charge. “ ‘ “One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. (Cits.) Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations. . . .” [Cits.]’ However, a special relation of trust or confidence exists between partners, who owe a duty of ‘utmost good faith’ to each other. [Cit.] Because of that confidential relationship, one partner is entitled to rely on representations made by another partner. [Cit.]” Allen v. Sanders, 176 Ga. App. 647, 649 (1) (337 SE2d 428) (1985). In the instant case, there is sufficient evidence of the existence of a confidential relationship; Zuckerman and appellant were equal partners in the construction company, each providing his own expertise toward a common business objective. See Vitner v. Funk, 182 Ga. App. 39 (2) (354 SE2d 666) (1987). “ ‘When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.’ [Cit.] As a fair risk exists that the charge directly misled the jury as to the [issue of justifiable reliance which is an element of the burden of proof for fraud in the context of a confidential relationship] and as the jury found in favor of the [appellee], ‘it cannot be said that the error was rendered harmless by the jury’s verdict. . . .’ [Cit.] ‘Harmful error results when an inapplicable instruction might reasonably draw the jury away from the true issues in dispute or if the erroneous instruction is inapplicable to a vital issue in the case.’ [Cit.]” (Punctuation omitted.) Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 112 (2) (387 SE2d 144) (1989). Accordingly, we find harmful error resulted from the misleading charge.

Decided December 5, 1990

Rehearing denied December 20, 1990

Vincent, Chorey, Taylor & Feil, Kenneth I. Sokolov, for appellant.

Howell W. Ragsdale, Jr., for appellees.

Judgment reversed.

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


author: Carley, Chief Judge. Sognier, Judge,

text:
    A90A1311.
    STOCKWELL v. THE STATE.
    (400 SE2d 709)
   Carley, Chief Judge.

An accusation was filed charging appellant with criminal trespass in that he “did knowingly and without authority enter upon the premises of Suite 310 located at 3316 Piedmont Road, after receiving, prior to such entry, notice from [Dr.] Laura D. Braswell, the rightful occupant of such premises, that such entry was forbidden. . . .” After a bench trial, appellant was found guilty and he appeals from the judgment of conviction and sentence entered on the trial court’s finding of guilt.

Appellant enumerates only the general grounds. The evidence adduced at trial established that appellant first met Dr. Braswell in 1984 while she was a professor at the Emory University School of Dentistry. After appellant repeatedly asked Dr. Braswell for dates, wrote her letters, and pursued her at work, she and the dental school dean both ordered him to stay away from the Emory campus. Dr. Braswell also told appellant not to come to her home. When appellant nonetheless appeared at Dr. Braswell’s house one night in 1986, she called the police, who arrested appellant for criminal trespass. He entered a plea of nolo contendere and received a probated sentence of one year, which apparently included an admonition that he was to stay away from Dr. Braswell. Once appellant completed his probation in early 1988, he telephoned Dr. Braswell, who again admonished him to stay away from her. Five months later, Dr. Braswell left Emory and opened a private dental practice on Piedmont Road. Appellant called her office and made a dental appointment. Although Dr. Braswell’s receptionist thereafter called appellant to confirm the appointment, when Dr. Braswell first learned that appellant had scheduled a visit, she instructed her receptionist to cancel his appointment. However, the receptionist was unable to reach appellant and he arrived at Dr. Braswell’s office. Dr. Braswell called the police, who arrested appellant.

OCGA § 16-7-21 (b) (2) provides, in relevant part, that one “commits the offense of criminal trespass when he knowingly and without authority . . . [e]nters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the . . . rightful occupant. . . that such entry is forbidden.” Appellant urges that any prior notices given to him by Dr. Braswell did not explicitly forbid his entry into her Piedmont Road office and that his conviction for criminal trespass cannot, therefore, stand. It is true that the statute refers to “the land or premises of another person” and that appellant’s conviction must be based upon evidence that he received prior notice from Dr. Braswell that entry into her Piedmont Road office was forbidden. However, in this case, there were repeated and unequivocal notices to appellant that he should stay away from any premises occupied by Dr. Braswell. The broad scope of the notice given to appellant is most clearly shown by Dr. Braswell’s testimony concerning her last conversation with appellant, which was even after appellant had received a probated sentence and a court-ordered admonition to stay away from her. In answer to a question concerning her last discussion with the appellant, Dr. Braswell was asked “where [she] told him to stay away from [her]?” Her answer was: “Everywhere. Because, you know, he seems to go — when he was banned from the school, he came on campus to my practice at Emory. When he was banned from the entire campus, he came to my home. When he was banned from my home, he came to my office. So, I — I saw this — I hate to use the word pattern, but that’s why I stated don’t come near me anywhere. Do not follow me. Do not call me. Do not anything.” (Emphasis supplied.)

Having received such notice from Dr. Braswell, appellant cannot reasonably contend that his entry into her Piedmont Road office had not been forbidden. To hold that such prior notice as appellant received is insufficient to authorize his conviction for criminal trespass would vitiate the enforceability of the statute in those very circumstances where the protection thereof is needed the most. The fact that Dr. Braswell’s admonition that appellant was to stay away from her “everywhere” would not necessarily authorize his conviction for criminal trespass on land or premises other than those in which she had a possessory interest does not otherwise demonstrate that Dr. Braswell’s admonition would not authorize appellant’s conviction for criminal trespass upon those lands or premises in which she did have a possessory interest.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Sognier and Beasley, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. I agree with appellant that the judgment should be reversed because the State did not prove an essential element of the crime, compliance with the statutory notice requirement.

OCGA § 16-7-21 (b) (2) provides that one “commits the offense of criminal trespass when he knowingly and without authority . . . [e]nters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner [or] rightful occupant . . . that such entry is forbidden.” (Emphasis supplied.) Inherent in the statutory notice requirement, which is an essential element that must be proven by the prosecution beyond a reasonable doubt, is “a requirement that notice be reasonable under the circumstances, as well as sufficiently explicit to apprise the trespasser what property he is forbidden to enter.” Rayburn v. State, 250 Ga. 657-658 (2) (300 SE2d 499) (1983). This court has recognized that “[c]riminal trespass is ... a location crime and its purpose is to keep the defendant off the property of others. . . . [T]he term ‘premises’ has varying meanings, but it is inclusive enough generally to mean land and the buildings thereon.” Williamson v. State, 134 Ga. App. 583 (215 SE2d 518) (1975). Given the plain language of the statute and the interpretations previously rendered, I am constrained to interpret the statute to require that in order to convict a defendant for a violation of OCGA § 16-7-21 (b) (2), the defendant must have been given notice that his entry into a specific place or places is forbidden. An admonition to avoid a specific person wherever he or she might be, unaccompanied by any reference to specific premises occupied by that person, simply does not satisfy the statutory requirement. See Rayburn, supra at 657-658 (2) (prior admonition to “ ‘stay away from the bus station’ ” was sufficient to authorize a trespass conviction for entry into the main lobby of the bus terminal); Wingfield v. State, 191 Ga. App. 800 (383 SE2d 180) (1989) (prior warning not to return to complainant’s “property” held sufficient to authorize the appellant’s conviction for entering the driveway of the complainant’s residence).

Decided December 5, 1990

Rehearing denied December 20, 1990

Michael J. Reily, for appellant.

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

In the case at bar, although Dr. Braswell warned appellant to stay away from her person, and he was admonished not to go to her house or the Emory campus, it is undisputed he was never told not to enter her dental office on Piedmont Road. Moreover, given that appellant obtained a regularly scheduled dental appointment with Dr. Braswell and was permitted to enter her office, even if Dr. Braswell’s prior admonitions could be considered to constitute sufficient notice, that notice was superseded by this acceptance of his request for an appointment. Accordingly, I agree with appellant that the earlier notices given by Dr. Braswell were insufficient to satisfy the statutory requirement of prior notice that his entry into her dental office was forbidden. Compare Rayburn, supra.

The statutory construction postulated by the majority conflicts with the Supreme Court’s holding in Rayburn that the notice given must include an “explicit” reference to the property the defendant is forbidden to enter. Further, the majority’s concern that victims in circumstances such as those presented here may go unprotected is unwarranted, for subparagraph (b) (3) of OCGA § 16-7-21 authorizes a criminal trespass conviction when one who has not previously been on notice to stay away from a specific place enters same and remains after being given notice from one in authority to depart. In addition, in appropriate circumstances a victim may seek issuance of a peace bond under OCGA § 17-6-90 or OCGA § 17-6-110.

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


author: Pope, Judge. Beasley, Judge,

text:
    A90A1450.
    FRENCH v. THE STATE.
    (401 SE2d 67)
   Pope, Judge.

Defendant Larry A. French was convicted and sentenced for driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1). He was also charged with and found guilty of violating OCGA § 40-6-391 (a) (4) but was not sentenced on that conviction. He appeals from the denial of his motion for new trial.

1. Defendant first challenges the sufficiency of the evidence. Construed so as to uphold the verdicts, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), the evidence adduced at trial showed the following: On March 5, 1988, the Gwinnett County DUI Task Force set up a roadblock on a two-lane portion of State Highway 141 to check for various traffic violations. Approximately a dozen officers were on the scene along with a “BAT-Mobile,” a van containing a mobile Intoximeter 3000 machine.

A car driven by defendant approached the checkpoint and an officer asked to see defendant’s driver’s license and proof of insurance. While talking with defendant, the officer noticed a very strong odor of alcohol coming from defendant’s breath. The officer asked defendant to submit to several field sobriety tests and defendant agreed. When asked to recite the alphabet, defendant appeared not to understand the request and then recited the alphabet very slowly. The officer asked him to submit to other tests to check balance and physical coordination. Prior to these tests, the officer asked defendant if he had any handicaps or physical disabilities which would impair performance of the tests and defendant responded in the negative. He was unable to perform the tests properly. In addition, his face was pale, his eyes were bloodshot and watery, and his speech was very slow. The officer administered an alco-sensor test which was positive for alcohol; the Intoximeter test showed a blood alcohol content of 0.13 percent.

Defendant admitted that he had consumed three 12-ounce bottles of beer.

The evidence, including the officer’s fact-based opinion that defendant was not a safe driver, see Fisher v. State, 177 Ga. App. 465 (1) (339 SE2d 744) (1986), was sufficient to enable the trier of fact to find defendant guilty of driving under the influence in violation of OCGA § 40-6-391 (a) (1) and (a) (4) beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Griner v. State, 192 Ga. App. 283 (1) (384 SE2d 398) (1989).

2. Defendant contends the roadblock in this particular case was illegal and unconstitutional under the Fourth Amendment. However, defendant did not make this constitutional objection below and may not now raise it for the first time on appeal. Tenant v. State, 151 Ga. App. 891, 894 (6) (262 SE2d 204) (1979).

3. Defendant argues that the State improperly placed his character in issue without his first having done so in violation of OCGA §§ 24-2-2 and 24-9-20 (b). The objected-to dialogue occurred during cross-examination when the State questioned defendant about how beer drinking affected him and about his ability to determine when he was intoxicated.

It is difficult to tell from the trial transcript whether or not this objection was adequately articulated below, as is required for appellate review. Shy v. State, 190 Ga. App. 370, 371 (2) (378 SE2d 920) (1989). Assuming it was preserved, it is without merit.

Just prior to such questioning, defendant had confirmed his direct testimony that at the time of the police stop he had consumed three bottles of beer. Therefore, the fact that defendant drank alcohol and drove was already in evidence. Moreover, much of the allegedly improper exchange was not testimony before the jury but rather colloquy among the court and counsel in a bench conference.

4. Defendant contends the trial court erred in charging the jury on both subsections (a) (1) and (a) (4) of OCGA § 40-6-391 “since it charged [him] twice for the same act.”

Again, it is difficult to ascertain from the record before us whether defendant adequately preserved this issue by making the objection now urged on appeal. Devoe v. State, 249 Ga. 499 (292 SE2d 72) (1982). In any event, “OCGA § 40-6-391 establishes one crime, driving under the influence, and subsections (a) (1) and (a) (4) merely set out two different methods of proving that same crime, [Cit.]” Kuptz v. State, 179 Ga. App. 150, 151 (4) (345 SE2d 670) (1986). The State was not required to elect to prosecute under one subsection or the other. Id.

5. Defendant contends the court erred in its instruction to the jury about direct evidence when it charged, from Volume 2 of the Suggested Pattern Jury Instructions for Criminal Cases, that direct evidence also included exhibits admitted during the trial. The exhibit he targets is the card bearing the implied consent warning. This enumeration does not present a preserved issue, Devoe, supra; it is merit-less anyway. OCGA § 24-1-1 (3).

6. Lastly, defendant contends that he was denied his right under the Federal Constitution to effective assistance of counsel in that retained trial counsel failed to adequately preserve for appellate review matters contained in his enumerations of error.

Defendant was sentenced on April 12, 1989. On that same day, trial counsel filed a motion for new trial based solely on the general grounds. Following a hearing, the trial court denied the motion on December 5. Trial counsel filed a notice of appeal on January 4. New counsel was retained to pursue the appeal.

“The ineffectiveness of trial counsel is raised for the first time in the context of this appeal, and consequently, the trial court has never had the opportunity to pass on this issue. Pursuant to the mandate of our Supreme Court, this Court is without power or authority to engage in an interpretation of this enumeration of error or otherwise to address its merits. Because ‘appellate counsel was retained for the first time during the pendency of the appeal,’ we are constrained to ‘remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel.’ Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). As the Supreme Court has recently held, ‘(i)n Smith, we established the practice of remanding to the trial court the claim of ineffective assistance, when such claim was raised only on appeal. The advantage of this procedure is that the claim can be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.’ Lloyd v. State, 258 Ga. 645 (fn. 1) (373 SE2d 1) (1988). See also Lloyd v. State, 257 Ga. 108 (355 SE2d 423) (1987).” Hutton v. State, 192 Ga. App. 239, 241 (5) (384 SE2d 446) (1989). See also Meders v. State, 260 Ga. 49, 50 (389 SE2d 320) (1990).

The dissent asks “Why remand . . . when the trial court’s determination [could only be a finding of no ineffectiveness as a matter of law].” This court, however, cannot presuppose what the trial court’s determination will be when this issue has never been presented to that court. “Our role, as an intermediate appellate court, is limited to correcting lower court errors of law. Ga. Const. 1983, Art. VI, Sec. V, Par. Ill; Byrd [v. State, 171 Ga. App. 344, 345 (3) (345 SE2d 117) (1984)].” Whiteley v. State, 188 Ga. App. 129, 131 (1) (372 SE2d 296) (1988). “This court is not a trial court and not a factfinder. The Court of Appeals is a court for the correction of errors below; it is not a court of original jurisdiction. [Cits.]”.Barnes v. State, 157 Ga. App. 582, 589 (278 SE2d 916) (1981). Consequently, remand is not only the better course in this case, it is also the one mandated by law.

Judgment affirmed and case remanded with direction.

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

Beasley, Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 1 through 5 but depart from the position taken in Division 6 and perceive no reason to remand for hearing and further ruling.

It is true that under circumstances where new appellate counsel has not had the opportunity to raise the issue of ineffectiveness of counsel before the trial court, such as via an amended motion for new trial or an extraordinary motion for new trial, remand may be appropriate. Meders v. State, 260 Ga. 49, 55 (10) (389 SE2d 320) (1990). See Weems v. State, 196 Ga. App. 429 (395 SE2d 863) (1990); Seabolt v. State, 190 Ga. App. 244 (378 SE2d 416) (1989); Hightower v. State, 189 Ga. App. 553, 554 (3) (376 SE2d 717) (1988). Remand was directed even though new appellate counsel had opportunity for remedial action prior to the filing of the appeal.

Remand is not appropriate here because what appellant complains about neither requires a hearing nor constitutes ineffective assistance inasmuch as we have considered the merits of the issues appellant wished to have reviewed in every instance except Division 2. As to the substance of the roadblock issue raised there defendant has not demonstrated that the circumstances of the roadblock ran afoul of the Federal Constitution. See State v. Golden, 171 Ga. App. 27, 29 (2) (318 SE2d 693) (1984). See also Michigan Dept, of State Police v. Sitz, _ U. S. _ (110 SC 2481, 110 LE2d 412) (1990). Consequently, the facts as to all the alleged instances of ineffectiveness are not in dispute and the law is settled.

Under the two-prong test of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), appellant must show not only deficiency in counsel’s performance but also that the deficiency prejudiced the defense, that is, that there was a reasonable possibility that the outcome of the proceedings would have been different, without counsel’s deficiency. See Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988).

The nature of appellant’s claim of ineffectiveness is that trial counsel failed to preserve for appellate review the aforementioned enumerated errors. While it is true that lack of objection in such instances results in waiver, review of the merits has shown them to be ill-based nevertheless. See Divisions 3, 4, and 5 of the majority opinion and the examination of the roadblock issue above. Therefore, trial counsel’s not excepting to what we have examined and found to be meritless claims of error, could not have prejudiced appellant in that he has not been denied review of these issues and a proper preservation would not have gained a reversal of the conviction. Thus appellant could not show ineffectiveness of counsel under Strickland, as a matter of law. Why remand it when the trial court’s determination could not be otherwise?

I am authorized to state that Presiding Judge Deen, Presiding Judge Banke, and Judge Cooper join in this opinion.

Decided December 5, 1990

Rehearing denied December 20, 1990

William M. Warner, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.


text:
    A90A0932.
    WILLIAMS v. THE STATE.
    (400 SE2d 638)
   Pope, Judge.

Defendant Samuel Hopkins Williams was convicted of child molestation, and appeals. We affirm.

1. Defendant first challenges the sufficiency of the evidence. However, our review of the transcript shows that the evidence adduced at trial was more than sufficient to authorize defendant’s conviction of the offense of child molestation under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Smith v. State, 193 Ga. App. 196 (387 SE2d 571) (1989); Brown v. State, 192 Ga. App. 864 (1) (386 SE2d 734) (1989).

2. Defendant also contends there was a fatal variance between the acts charged in the indictment and the proof offered at trial. The indictment charged that defendant committed the offense of child molestation “by placing his male sex organ near, on and into [the victim’s] anus and female sex organ. . . .’’As defendant contends on appeal the evidence at trial showed the acts of molestation involved only the six-year-old victim’s anus, not her vagina. “ ‘When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. (Cits.) Inasmuch as the evidence showed the defendant had molested the child in one of the ways alleged, [the guilty verdict was authorized and reversal is not required.] (Cit.)’ Henry v. State, 154 Ga. App. 120 (1) (267 SE2d 653) (1980).” Castillo v. State, 178 Ga. App. 312 (1) (342 SE2d 782) (1986).

3. Defendant also contends, for the first time on appeal, that he received ineffective assistance of counsel at trial. The record shows that appellate counsel was appointed to represent the defendant on January 17, 1990, and that the court entered an order allowing defendant to file an out-of-time appeal on January 23, 1990. Defendant’s out-of-time notice of appeal was filed on that date. “ ‘[Defendant] did not raise the ineffectiveness issue when he originally sought an out-of-time appeal nor was the issue later raised in the trial court before the present appeal was brought. . . . (Therefore), pursuant to the authority of Bell v. State, (259 Ga. 272 (381 SE2d 514) (1989)), we are constrained to hold that [defendant] has waived the right to raise the ineffectiveness issue in the context of the present appeal.’ Smith v. State, 192 Ga. App. 246, 247 (2) (384 SE2d 451) (1989).” Ponder v. State, 194 Ga. App. 446, 450 (10) (390 SE2d 869) (1990). Cf. Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990), cert, denied, October 18, 1990.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 2 but I reach the result in Division 3 by another route.

Appellant Williams was sentenced on December 12 and the judgment was filed on December 13. He sent two notices of appeal to the court from the jail. One is made up of two enumerations of error, neither of which complains of trial counsel. Both notices are dated January 9 and, although there is no filing date, they were apparently sent January 13, the date of a postmark on an envelope in the record. Had they been sent on Tuesday, January 9, and filed when received, they most likely would have been filed on time, as the 30th day was Friday, January 12. They were not officially filed by the clerk at all because, as stated on a handwritten note on one of them: “1-17-90 [Deputy Clerk] said to put this in file That Pub Def Ofc should file an appeal -”

In two documents dated January 10 and again never marked “filed” and dated by the clerk but apparently mailed January 12, the jailed Williams asked for appointment of a public defender for appeal and stated his grounds for reversing the conviction. The grounds related to sufficiency of the evidence and newly discovered evidence, and not to ineffective assistance of trial counsel.

The court appointed the public defender “to represent the defendant in this matter” of appeal, by order filed January 17. A form “Out-of-Time Notice of Appeal” and pauper’s affidavit were filed by counsel on January 23 and, although no formal motion was made or served on opposing counsel, the court granted an “Out-of-Time Appeal,” having found “[g]ood and sufficient reason” without stating what it was.

The first notice of appeal submitted by defendant pro se was sufficient in content so that the second one filed by counsel was superfluous. Since the first was late for a reason not explained in the record (and assuming it was actually filed at some point because it is part of the record), the order should rightly apply to it.

The question is thus this: when a defendant appeals pro se from a conviction following a trial in which he is represented by counsel, and there is no motion for new trial, and defendant’s out-of-time appeal is allowed, and the public defender appointed after the time for a new trial motion and for timely appeal has passed, can the claim of ineffective assistance of trial counsel be raised on appeal? The answer is no, because there has been a realistic opportunity for the matter to be raised in,the trial court. Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987).

Defendant was represented at trial by retained counsel but thereafter represented himself, apparently due to indigency, until the public defender was appointed over 30 days following the judgment. Defendant was advised of the right to sentence review if timely sought and presumably advised of the right to appeal within 30 days, as he attempted to achieve the latter. But the record does not show that he knew that he could move for a new trial or that it provided a mechanism to challenge counsel’s representation. Nor is it likely that he knew, considering that he did list his complaints in the documents accompanying his pro se notice of appeal and this was not one of them. Although there is no right to be advised of the availability and breadth of the motion for new trial procedure, I cannot conclude under the circumstances of this case that defendant waived the ineffectiveness issue by not making a motion for new trial and therein raising it when he was representing himself.

However, counsel appointed shortly after the 30-day period had run could have filed such a motion, and ask that it be treated as an extraordinary motion for that reason. The law provides for such in OCGA § 5-5-41. Or, according to Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989), he could have raised it in the motion for out-of-time appeal. Since appellant’s aborted pro se appeal was not recognized, we do not have the situation in which the filing of a notice of appeal divests the trial court of jurisdiction. See Housing Auth. of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984).

“It is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment.” Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). The question is, when was “the earliest practicable moment” that the issue could have been raised? Appointed counsel had that opportunity at the trial level but chose to wait until the appeal was before us, thereby waiving the ground for a reversal of the conviction and sentence in this direct appeal.

Examining the particular instances of alleged deficient representation, they are not of a type which are subsumed within other enumerations of error and thus arguably could be reached despite the failure to raise them below. Cf. French v. State, 198 Ga. App. 210, 212 (401 SE2d 67) (1990), dissenting opinion.

Decided November 8, 1990

Rehearing denied December 20, 1990

Steven W. Reighard, Kenneth Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Patsy Y. Porter, Carl P. Greenberg, Assistant District Attorneys, for appellee.


author: Beasley, Judge. Pope, Judge,

text:
    A90A1415.
    BUTLER v. THE STATE.
    (401 SE2d 43)
   Beasley, Judge.

Butler appeals the denial of his motion for new trial after his conviction of child molestation, OCGA § 16-6-4.

He was a shoe salesman working on commission when he was arrested on July 12, 1987. He was unable to make bond for 33 days, losing his job as a result. On August 6, 1987, he applied for appointed counsel and the Cobb circuit defender’s office determined that he met the eligibility standards and appointed an attorney for him. Defendant never met or talked with this attorney.

When he was released on bond, defendant returned to work, but only part-time work was available. While defendant was incarcerated, he was evicted from his residence and all his belongings placed on the curb, from which most disappeared. He therefore had to expend most of his part-time income for essentials.

Because he now had income, the circuit defender’s office determined he no longer met the eligibility standards for appointed counsel, and the attorney assigned was removed by court order of October 27, 1987.

After he was denied an attorney, he went to an attorney listed on the defender’s qualified list. He was told a $5,000 retainer was necessary, which he was unable to pay.

At the motions hearing on December 10, 1987, defendant appeared pro se and was asked if he had an attorney. He responded that he was unable to afford one but had gotten a job and could “maybe” afford one later.

At the calendar call on January 18, 1988, defendant advised the court that he had been told he was not eligible for appointed counsel and that he had tried to retain counsel but was financially unable to do so. The court suggested he speak with the prosecutor, after which the case was taken off the calendar to give him an opportunity to get an attorney. On March 1, 1988, defendant again applied for appointed counsel, but was found ineligible by the defender’s office. No inquiry was made of him regarding his efforts to retain an attorney and his inability to pay the required retainer.

Defendant appeared at the April calendar call, again without an attorney, although’ this was not addressed by either defendant or the court.

At the trial of the case on November 1, 1988, defendant appeared without counsel and the issue was not further addressed. He conducted the voir dire himself, asking only minimal questions of a few potential jurors.

After the jury was empaneled and excused for lunch, defendant returned to court with an attorney who advised the court he represented defendant. He had been observing trials and had watched defendant conduct voir dire. At the lunch break, he approached defendant and told him he needed an attorney and he would represent defendant if he gave him a retainer. Defendant gave him a quarter as a retainer, which he then borrowed to make a phone call. The attorney, a member of the bar since 1981, had never tried a criminal case or assisted in trying one. His only civil experience was representing himself when he sued the bar examiners, contending the exam was unfair. Although he had applied to be placed on the circuit defender’s list of qualified attorneys, he had not been accepted.

After conviction, trial counsel withdrew on December 30, 1988. On January 20, 1989, an order was entered adjudging defendant an indigent and counsel representing him on appeal was appointed.

New counsel filed a motion for new trial, asserting the general grounds, Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988). The motion was amended to include newly discovered evidence, failure to appoint counsel in violation of OCGA § 17-12-4 and USCR 29, and “ineffective assistance of counsel.”

1. (a) Defendant first contends the trial court erroneously failed to appoint counsel, although he was indigent and had requested one, thereby depriving him of effective assistance of counsel in violation of Ga. Const. 1983, Art. I, Sec. I, Par. XIV, OCGA § 17-12-4, and implementing rules.

During this time, Cobb County provided a local indigent defense program, as contemplated by OCGA Title 17, Chapter 12, Article 1 and implemented by USCR 29.1 et seq.

USCR 29.4 provides that the court or its designee shall determine the financial eligibility of an accused for appointed counsel and that “[t]he court may appoint counsel in cases where the defendant does not qualify and cannot be provided counsel [as provided in the rules.]” See OCGA §§ 17-12-2 (5) and 17-12-10 (a) regarding indigency vel non.

USCR 29.5 further provides that “[t]he court may appoint counsel for representation for any accused person who is unable to obtain counsel due to special circumstances such as emergency, hardship, or documented refusal of the case by members of the private bar because of financial inability to pay for counsel.” The Cobb defender’s guidelines repeat this provision, but specify that three attorneys must decline representation.

Defendant was not advised there was any possibility he could obtain appointed counsel even if he did not meet the financial baseline, nor were the “special circumstances” inquired into as of the time of trial. There was a failure to comply with OCGA § 17-12-4 and implementing rules which effectively denied defendant counsel.

These failures resulted in the volunteering of trial counsel, who then advised the court he needed a continuance in order to prepare. Art. I, Sec. I, Par. XIV provides that “Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel.”

“ ‘[Art. I, Sec. I, Par. XIV] . . . guarantees such person who is unable to employ counsel the right to have counsel appointed for him by the court. . . .’ That benefit of counsel is not an empty right has been emphasized time and time again. . . . That reasonable time is necessary for the right to be truly a substantial one has been recognized in many cases. ‘The constitutional guaranty amounts to nothing, unless the counsel selected by the accused or appointed by the court are [sic] given a reasonable time to ascertain what is the character of the case that the accused is called upon to defend.’ Nick v. State, 128 Ga. 573 (58 SE 48). . . . [Cits.] While the time for preparation of such a case is generally a matter for the discretion of the trial judge, reviewing courts, when called upon, have to review the exercise of that discretion.” Fair v. Balkcom, 216 Ga. 721, 725-726 (119 SE2d 691) (1961).

Denial of the requested continuance after an attorney volunteered to assume the representation was denial of counsel. Smith v. Greek, 226 Ga. 312, 317 (175 SE2d 1) (1970); Fair, supra; Lowrance v. State, 183 Ga. App. 421, 422 (1) (359 SE2d 196) (1987) (physical precedent); see Walker v. State, 194 Ga. 727, 733 (22 SE2d 462) (1942).

(b) There is another impediment to the validity of the process used here. Having repeatedly requested appointed counsel, defendant never waived his right to one.

Until representation was afforded, defendant never specified whether he was relying on the federal Sixth Amendment right to counsel or that provided by Art. I, Sec. I, Par. XIV of the Georgia Constitution.

Under either, however, the standard for waiver requires an intentional relinquishment or abandonment of a known right or privilege, and the “ ‘constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’ Johnson [v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE2d 1461) (1937)].” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). See Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184) (1988); Singleton v. State, 176 Ga. App. 733 (337 SE2d 350) (1985).

“(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). See Moss v. State, 196 Ga. App. 81 (395 SE2d 363) (1990). Here, the record reflects only defendant’s request for an attorney or silence. There was not an adequate waiver. Stapp v. State, 249 Ga. 289 (1) (290 SE2d 439) (1982); Strozier v. State, 187 Ga. App. 16, 17 (1) (369 SE2d 504) (1988).

The judgment must be reversed, since a review of the record shows that counsel did not render “reasonably effective assistance.” Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974). See Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985).

2. Consideration of the remaining enumerations is not necessary in light of the holding in Division 1.

Judgment reversed.

Birdsong and Cooper, JJ., concur. Carley, C. J., and Sognier, J., concur in the judgment only. Been, P. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

Pope, Judge,

dissenting.

1. I cannot agree with the conclusion that the trial court failed to comply with OCGA § 17-12-4 and the implementing rules. Said statute requires all trial courts of the state to provide a procedure for determining a defendant’s eligibility for appointed counsel and to appoint counsel in cases where a defendant is determined to be indigent. The record shows the Superior Court of Cobb County does have such a procedure. Rule 29.5 of the Uniform Superior Court Rules requires each superior court to determine income level for eligibility for appointed counsel. The record shows the Superior Court of Cobb County had established such an eligibility scale and that defendant in this case was reviewed on several occasions by the appropriate administrative officer to determine if he met the requirements for appointed counsel. Repeatedly it was determined that defendant’s income exceeded the standard.

Rule 29.5 provides the court “may,” in special circumstances, appoint counsel even for one who does not otherwise meet the eligibility standard where, inter alia, there is “documented refusal of the case by members of the bar because of financial inability to pay for counsel.” The record shows the eligibility rules adopted by Cobb County also provide the public defender “may” accept a client for representation due to “refusal of the case by three members of the private bar.” I find no requirement in the statutes or applicable rules that a defendant be advised of this rule permitting, though not requiring, appointment of counsel when the defendant is refused representation by the private bar. Therefore, I cannot concur with the majority opinion that a failure so to advise the defendant that he might otherwise qualify for appointed counsel even if he exceeded the income guidelines constitutes a failure to comply with the applicable statutes or rules.

Nor can I agree that the trial court in this case erred in failing to appoint counsel for defendant under the special circumstances provisions. In this case, at the preliminary motions hearing on December 10, 1987, four months after he was released from jail, defendant reported to the judge he had been rehired to his job and “now I can maybe afford an attorney.” The trial judge declined to rule on defendant’s motion for a continuance but informed defendant he could have until the scheduled trial date, January 18, 1988, to obtain an attorney and prepare for trial. When the case was called in January defendant explained to the judge that he had not obtained counsel because he first had to purchase new clothes and personal belongings to replace those stolen when he was evicted from his apartment while in jail and had talked to several attorneys who required payment of between $2,500 and $5,000 to take his case, which defendant could not afford. Although the State announced ready, the record shows the case was again continued. Again defendant applied to the public defender’s office for counsel and again he was found to be ineligible. The case was not reached for trial until November 1, 1988, over one year from defendant’s release from jail during which time defendant was employed and earning income in excess of the indigent defense guidelines for the county. Defendant announced ready to commence the trial.

At the hearing on defendant’s motion for new trial defendant admitted he was granted several continuances to afford him the opportunity to obtain counsel but defendant held to the belief that the case might be dismissed for lack of evidence. The record shows the trial court heard the evidence which arguably supports defendant’s claim for appointed counsel under the special circumstances provision of the rules and nevertheless, in its discretion, denied defendant’s request for appointed counsel. Thus, I cannot agree with the conclusion of the majority that defendant’s “special circumstances” were not appropriately considered. In my opinion, neither the evidence presented prior to trial nor the evidence presented at the hearing on defendant’s motion for new trial requires the trial court, as a matter of law, to appoint counsel to defendant under the “special circumstances” provision of the rules for determining eligibility for appointed counsel. Both Rule 29.5 and the guidelines adopted by Cobb County leave the decision to appoint counsel under special circumstances to the discretion of the trial court. A decision left to the discretion of the trial court will not be overturned on appellate review unless the record shows an abuse of discretion. I find no such abuse in this case and therefore believe we should hold the trial court did not err in denying defendant’s request for appointed counsel.

2. Neither do I believe the trial court erred in denying the motion for new trial on the ground defendant’s attorney failed to provide effective assistance of counsel. Defendant points to three alleged errors to support his claim of ineffective assistance of counsel: his attorney’s lack of adequate opportunity to prepare for trial, the attorney’s failure to object to certain testimony and the attorney’s mistake in raising the issue of defendant’s prior criminal record, thus opening the door to the introduction of harmful character evidence by the prosecutor. Because, as I conclude, the defendant was not entitled to appointed counsel, the attorney’s lack of an adequate opportunity to prepare for trial is due to defendant’s own failure to retain counsel prior to the commencement of trial. Defendant’s second argument for showing ineffective assistance of counsel is also meritless. The testimony of certain witnesses concerning statements made to them by the victim is admissible pursuant to OCGA § 24-3-16 and the attorney’s failure to object on the ground such testimony impermissibly bolstered the victim’s testimony does not show attorney error. Finally, the testimony of defendant’s trial attorney at the hearing on defendant’s motion for new trial shows the attorney’s decision to question defendant about his prior criminal record was not based solely on a lack of understanding that such testimony would permit the prosecution to present prejudicial character evidence but also on defendant’s own misrepresentation to the attorney that he had no prior criminal record as an adult. Error which is induced by the defendant proyides no basis for appeal. See Edwards v. State, 235 Ga. 603 (2) (221 SE2d 28) (1975).

Decided December 4, 1990

Rehearing denied December 20, 1990

Larry W. Yarbrough, for appellant.

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

Gary R. Pelphrey, amicus curiae.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray and Presiding Judge Banke join in this dissent.

       It is open to question whether the court’s designee may specify how many members must refuse representation before this clause is activated, since the rule says “members,” indicating only a number more than one.


text:
    A90A1447.
    TYLER et al. v. PEPSICO, INC.
    (400 SE2d 673)
   Cooper, Judge.

Appellant Claudette Tyler brought this action to recover damages for personal injuries she sustained while attempting to open the aluminum cap on a two liter bottle of Pepsi-Cola with a nutcracker. When the jaws of the nutcracker were squeezed and the cap was turned, the cap exploded from the bottle striking appellant in the eye. The complaint was based on theories of strict liability, negligence and fraud, and a loss of consortium claim was subsequently added. Appellants charged that the threads on the aluminum cap were inadequately formed at the point of manufacture; that the threads were too shallow; that when the cap was turned, the pressure from the carbonated beverage inside the bottle forced the cap from the bottle and that the labelling should have included a warning. The retail seller, the bottling company (“bottler”) which bottled and sold the product, the manufacturer of the aluminum cap and appellee, the franchisor/ licensor and manufacturer of Pepsi syrup, were named as defendants. The trial court granted appellee’s motion for summary judgment on all counts, and this appeal followed.

1. In their first enumeration of error, appellants contend the trial court erred in holding that appellee was not a manufacturer under OCGA § 51-1-11 (b). Appellants argue that because appellee had substantial control over the production, sale and distribution of the bottler’s products by virtue of the exclusive bottling agreement between appellee and the bottler, “for all intents and purposes” appellee is a manufacturer. The record shows that appellee manufactures syrup, which it sells to licensed bottling companies who mix it with other ingredients to produce Pepsi-Cola. Pepsi-Cola is then bottled and distributed to retailers by the bottling companies within their sales territories. In the instant case, appellee has no ownership interest in the bottler and is paid only for the syrup. The finished product is sold by the bottler for its own account. The exclusive bottling agreement provided that Pepsi-Cola would be the bottler’s only cola product; that sufficient amounts of syrup would be purchased to satisfy the demands of the bottler’s territory; that delivery trucks and route salesmen’s uniforms would bear appellee’s trademark; and that the bottler was authorized to purchase only those bottles, caps and cartons approved by appellee and was obligated to maintain a sufficient level of bottles to meet peak season demands. The agreement recites that “[i]n the use, handling and processing of Beverage concentrates, the bottling of the Beverage and the filling, crowning, labeling, packaging and selling of the Beverage the bottler [would] follow precisely the instructions of the Company given from time to time. ...” (The term “Company” referred to appellee.) Under the agreement, appellee was entitled to periodically suggest to the bottler the price per case and deposit charge, and the bottler was required to vigorously push the sale of the beverage throughout its territory to secure “full distribution up to maximum sales potential.” Additionally, the bottler agreed to actively cooperate in all advertising campaigns and product control programs and to allow appellee to conduct site inspections of the manufacturing and distribution processes. Finally, if the bottler failed to perform or comply with any of the terms of the agreement, appellee was authorized to terminate the agreement.

Finding no Georgia decision directly on point with the instant case, the trial court, in its order, provided an extensive review of authority from other jurisdictions on the issue of whether a licensor or franchisor may be liable for the acts or omissions of its licensee. While other jurisdictions have adopted a variety of theories to hold non-retailing, non-manufacturing entities liable based on their control over the production process, in Morgan v. Mar-Bel, Inc., 614 FSupp. 438 (N.D. Ga. 1985), the federal district court recognized that Georgia had not addressed the issue and refused to adopt any of those theories in the absence of Georgia authority. In Morgan, the court identified the “three situations in which an entity is deemed a manufacturer for the purposes of strict liability [in Georgia]:

(a) an actual manufacturer or designer of the product; or

(b) a manufacturer of a component part which failed and caused the plaintiff injury; or

(c) an assembler of component parts who then sells the item as a single product under its own trade name. [Cits.]” Id. at 440. The court determined that the defendant, who contracted with a manufacturer to design and construct a prototype of a piece of equipment and who inspected and tested the equipment during testing and offered suggestions, did not fit within any of the categories listed above and held that “[a]ny supervision or suggestions by [defendant] were not substantial enough to equate them with the manufacturers or designers of the product. [Cit.]” Id. at 441. Rejecting plaintiff’s argument that defendant’s control of specifications and quality standards of the item, which was constructed by another, was sufficient to impose liability, the court observed that Georgia courts had not given the term “manufacturer” such an expansive reading and determined instead that OCGA § 51-1-11 was to be strictly construed. Id.

The question of whether a franchisor might be liable as a manufacturer pursuant to OCGA § 51-1-11 (b) (1) is a matter of first impression in this state. The statute provides, “[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” (Emphasis supplied.) This court has previously recognized the need to control the use of a trade name in a franchise agreement authorizing such use, and even in those instances where the franchise agreement provides for compensation on a royalty basis, an agency relationship is not created. Frey v. Pepsico, Inc., 191 Ga. App. 585 (1) (382 SE2d 648) (1989). Frey involved a licensing agreement between PepsiCo, Inc., and a bottler, which was virtually identical to the agreement in the instant case, and the plaintiff in Frey argued that PepsiCo was vicariously liable for the negligence of a driver hired by the bottler to drive a Pepsi-Cola delivery truck on the theory that PepsiCo controlled the bottler’s operations. The court found that PepsiCo “retained a substantial amount of control over the Bottler’s manufacturing and packaging operations” by virtue of the licensing agreement, but declined to find PepsiCo vicariously liable. Id. at 586-587. The court determined there was “no basis for an inference that either the Bottler or its driver was acting as servants or instrumentalities of PepsiCo with respect to the operation of the delivery vehicle . . .” because PepsiCo had no supervisory authority to dictate the hiring and firing of route salesmen or the time, manner and method of their employment and because the evidence indicated that the bottler and PepsiCo were operating as distinct and independent entities. Id. at 586-587.

In the instant case, we likewise recognize the bottling agreement’s function of protecting the Pepsi trade name and find that despite the relationship created by the agreement, appellee is not a manufacturer as contemplated by OCGA § 51-1-11 (b), which is in derogation of the common law and “ ‘must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.’ [Cits.]” Daniel v. American Optical Corp., 251 Ga. 166, 167 (1) (304 SE2d 383) (1983).

In Ellis v. Rich’s, Inc., 233 Ga. 573 (212 SE2d 373) (1975) and its progeny Williams v. City Ice Co., 190 Ga. App. 744 (1) (380 SE2d 341) (1989); Thorpe v. Robert F. Bullock, Inc., 179 Ga. App. 867, 868 (348 SE2d 55) (1986)), the term “manufacturer” as used in OCGA § 51-1-11 has been interpreted to refer to the actual manufacturer of an item. Appellants rely upon Pierce v. Liberty Furniture Co., 141 Ga. App. 175 (233 SE2d 33) (1977) for the proposition that appellee, who is not the actual manufacturer, is liable as a manufacturer. In Pierce, the court held that “an entity which assembles component parts and sells them as a single product under its trade name is a ‘manufacturer’ within the meaning of [OCGA § 51-1-11].” Id. at 179. In the instant case, the bottler mixes the syrup with carbonated water and other ingredients to formulate Pepsi-Cola, which it bottles in two liter containers and secures with aluminum caps. Although appellee retained the right to periodically inspect the bottler’s operation and had the authority to discontinue supplying syrup in the event of a breach of the agreement, we do not find that this activity constitutes “assembly” as required by Pierce. In addition, contrary to appellants’ contention, “under OCGA § 51-1-11, the ‘manufacturer’ must sell the product. . . .” Barry v. Stevens Equip. Co., 176 Ga. App. 27, 28 (1) (335 SE2d 129) (1985). We recognize that “selling” does not require the exchange of title for payment as long as the manufacturer places the produce “in the stream of commerce,” that is “put[s] the product in the hands of and under the control of a consumer. . . .” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340) (1987). However, the bottler, not appellee, distributed and sold the bottle in this case, and the proceeds from the sale went exclusively to the bottler.

Appellants urge that the Second Restatement of the Law of Torts, § 400, which the court relied upon in Pierce, requires a finding that appellee was an “apparent” manufacturer. The Restatement provides, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” The courts in this state have applied the Restatement to sellers of products who appear to be the manufacturers, English v. Crenshaw Supply Co., 193 Ga. App. 354 (1) (387 SE2d 628) (1989); Moody v. Sears, Roebuck & Co., 324 FSupp. 844 (S.D. Ga. 1971), and have apparently defined the phrase, “puts out as his own product,” to mean supply to others. Since we have determined that appellee was not a seller and did not supply the bottled product to others, the Restatement is inapplicable in the context of this case, and appellants’ reliance on the Restatement is misplaced. Accordingly, we find the trial court did not err in finding that appellee was not a manufacturer under OCGA § 51-1-11.

2. Appellants next contend the trial court erred in holding as a matter of law that appellee was not negligent and owed no duty of care to appellants.

(a) Relying on appellee’s status as a manufacturer, appellants contend appellee breached a duty to warn of the danger of injury due to “weakly threaded closures” pursuant to OCGA § 51-1-11 (c). Inasmuch as we have determined that appellee is not a manufacturer, we find that the trial court was correct in granting summary judgment to appellee on the failure to warn claim.

(b) Appellants contend the trial court erred in finding that they were not third-party beneficiaries of the contract between appellee and the bottler. Appellants maintain that by reserving the right to inspect the bottler’s facilities, appellee had a contractual duty, or at least voluntarily assumed a duty, to insure the safety of the product in the hands of consumers. “A third-party beneficiary contract is one in which the promisor engages to the promisee to render some performance to a third person. [Cit.]” Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 753 (206 SE2d 857) (1974). “In order for a third party to have standing to enforce [such a contract] it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. [Cits.]” Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976). While appellee admits that product safety was one of the purposes of the inspections, there is no evidence that the contract was specifically intended to benefit appellants or that appellee voluntarily assumed a duty to appellants. The record also does not demonstrate any failure by appellee to exercise due care which increased the risk of harm or that appellee undertook the bottler’s duty to inspect. Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980). To the contrary, in response to interrogatories, the bottler admitted that it was responsible for the daily operation of its plant. Finally, there is no evidence that appellants relied on appellee’s inspections. Id. See generally Huggins v. Standard Fire Ins. Co., 166 Ga. App. 441, 442 (304 SE2d 397) (1983). This contention is without merit.

(c) Appellants argue that the trial court erred in finding that res ipsa loquitur did not apply. We disagree. “Res ipsa loquitur is a rule of evidence which permits an inference of negligence to arise when the necessary elements are present. [Cits.]” Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (3) (335 SE2d 708) (1985). In the instant case, there is a failure of proof of an essential element of res ipsa loquitur — the requirement that the injury result from “an agency or instrumentality within exclusive control of the defendant.” (Emphasis supplied.) Id.

Decided December 4, 1990

Rehearing denied December 20, 1990

W. Jan Jankowski, for appellants.

Painter, Ratterree & Connelly, Paul W. Painter, Jr., Brannen, Wessels & Searcy, David R. Smith, Carr, Tabb & Pope, W. Pitts Carr, Eric E. Huber, for appellee.

3. Appellants enumerate as error the trial court’s finding that their fraud claim was not supported by the evidence. Appellants contend appellee was aware of similar incidents and that the product was inherently dangerous and argue that the failure to warn constituted reckless disregard equivalent to fraud under OCGA § 51-6-2. The record does not reveal that appellee knew of prior accidents occurring in quite the same manner as in the instant case, i.e., the grasping of the aluminum cap with a nutcracker or similar vise and an ensuing explosion, that appellee was aware of past misapplication of the aluminum cap or misapplication in the instant case, nor does the record demonstrate that there was an intent to deceive. See generally Lively v. Garnick, 160 Ga. App. 591 (1) (287 SE2d 553) (1981). This claim is without merit, and the trial court did not err in granting summary judgment as to this count and all other claims against appellee.

Judgment affirmed.

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


text:
    A90A1393.
    In re JONES.
    (401 SE2d 278)
   Cooper, Judge.

Appellant, an attorney, appeals a criminal contempt citation issued against him by the trial judge, before whom appellant was trying a medical malpractice case. The events which led to the contempt citation occurred during the second trial of the case, the first trial having been declared a mistrial by the judge. During the pretrial conference on September 15, 1989, the judge, after discussing with the attorneys their handling of the press, defined an area outside the jury room in which the jurors would be allowed access during the trial, and identified a cutoff point beyond which the attorneys were not to have any discussions with the press about the case. On March 5, 1990, during a recess, the judge held a settlement conference with the attorneys in his chambers. The court stated: “And let me also say, this is on the record. But this is a settlement conversation, as I see it, which means it should not be published. This should not be in the paper. It’s fine to put this in the record so we have, for our purposes, a record of it. But this conversation, it seems to me, is not taking place in the courtroom for good reason, because this is not an open conversation and should not be broadcast in the Daily Report or anywhere else. If anybody has a disagreement with that, I’d like to hear it.” Appellant responded: “Fine.” The settlement conference concluded with the judge asking attorneys for both sides to confer with their respective clients and report back to him separately regarding their clients’ proposals for settlement. Approximately two hours later, during a meeting with the attorneys for both parties, the judge stated that he had received a report from his sheriff that while the judge was discussing settlement with attorneys for the defendants, appellant was having a discussion with the press in the presence of jurors, in the area which had been restricted by the court. When asked by the judge what the conversation was about and why it was being conducted in front of the jury, the following colloquy occurred between the judge and appellant: “[APPELLANT]: Your honor, I was unaware that we weren’t supposed to be standing in that area. The conversation was just general small talk. It didn’t have anything to do with the case. And I was very careful to see that no jurors could hear any of it. [THE COURT]: When you say the conversation didn’t concern the case, what do you mean? [APPELLANT]: Well, it was about mostly unrelated subject matters. I mean, they were interested in what was going on, and I said, well, you know, there were some settlement discussions going on, we’re not supposed to talk to you about it, period. Other than that, that’s about all that was said about the case.” Attorneys for the defendants informed the court at that meeting that they had received information that appellant was holding a press conference; that appellant mentioned certain testimony that had been excluded; that appellant discussed the RICO claims made in the lawsuit; and that appellant discussed those matters in the presence of jurors. Appellant responded that he told reporters settlement discussions were going on but that he could not talk about them; that he did not remember mentioning the RICO claim; that although he may have mentioned that a certain doctor’s testimony was excluded, he did not have any substantive discussion about any of the evidence; and that no juror heard anything that was said. The judge then interviewed the reporters privately, after which the following proceedings took place in open court: The defendants moved for a dismissal of the RICO claims pursuant to OCGA § 9-11-41 (b), on the grounds that appellant had failed to comply with a court order. Before the judge ruled on the motion, appellant filed with the court a dismissal without prejudice. The judge, after relating certain findings of fact, found appellant to be in direct criminal contempt of court and fined him $500.

1. Appellant contends that the trial court erred in its summary adjudication of contempt because appellant’s conduct did not occur in the presence of the judge. A direct criminal contempt is one involving conduct committed in the presence of the court or so near thereto as to obstruct the administration of justice and the court has the power to punish such contempt summarily and without a hearing. OCGA § 15-1-4 (a); Martin v. Waters, 151 Ga. App. 149 (1) (259 SE2d 153) (1979). The judge found three acts of contumacious conduct in this case. First, appellant talked to reporters in the presence of jurors about the case and the fact that settlement discussions were taking place almost immediately after being instructed by the judge that no such conversations were to take place; second, appellant spoke with reporters about the case in an area where the judge had previously restricted such conversations because of the presence of jurors; and third, appellant was untruthful with the judge when asked about the nature of his conversation with the reporters. “During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Dowdy v. Palmour, 251 Ga. 135, 141-142 (2) (304 SE2d 52) (1983). Appellant spoke with reporters in an area immediately surrounding the courtroom and within which the judge had a right to restrict access in order to assure the parties a fair trial. The record reflects that when the judge discovered that some jurors may have overheard appellant discussing the case, the judge questioned appellant about it and appellant was untruthful with the judge, thus hindering the judge’s ability to assure a fair trial. We conclude that each act of contumacious conduct either took place in the presence of the court or so near thereto as to obstruct the administration of justice so as to constitute a direct contempt and that summary adjudication of contempt was an appropriate sanction.

2. In his second enumeration of error, appellant contends that he was entitled to a hearing because the judge did not punish him immediately after the contumacious conduct. We disagree. Upon discovering the contumacious conduct, the judge, after hearing appellant’s version of the events, ordered a recess to speak with the reporters involved. When he returned to the courtroom that same afternoon, the judge rendered his decision. This is not a case where the court finds an attorney in contempt and delays the punishment until after the trial of the case. See Dowdy v. Palmour, supra; In re Bryant, 188 Ga. App. 383 (1) (373 SE2d 74) (1988). The judge in this case did not delay his decision, but announced his decision at the first available opportunity upon returning to the bench. Although appellant dismissed the case prior to the judge’s decision, it is clear from the record that the judge intended to announce his ruling before proceeding with the case. We find appellant’s second enumeration of error to be without merit.

3. In his third enumeration of error, appellant contends that the trial court erred in not appointing another judge to preside over the contempt hearing. Since the record does not reflect that appellant’s contumacious conduct was directed toward the judge or that the judge reacted in such a manner as to become involved in the controversy (see Dowdy v. Palmour, supra), we find this enumeration of error to be without merit.

4. Even if we conclude, as appellant argues in his fourth enumeration of error, that the court’s orders were not sufficiently definite so as to find him in wilful violation of them, we cannot conclude that appellant’s untruthfulness to the court was not wilful and unintentional. We find that the court properly exercised its contempt power under OCGA § 15-1-4.

5. In his fifth enumeration of error, appellant contends that the trial court erred in relying on the testimony of reporters in finding appellant guilty of contempt. Inasmuch as the judge cited specific examples of appellant’s untruthfulness which were committed directly in his presence, the record does not support appellant’s argument.

6. We further find that appellant’s actions in talking about the case and the settlement in the presence of jurors, while the trial was underway, and his subsequent untruthfulness with the court about his conversation created a “clear and present danger to orderly administration of justice. [Cit.]” Garland v. State, 253 Ga. 789, 790 (2) (325 SE2d 131) (1985). Specifically, the conduct of appellant interfered with the trial judge’s attempt to assure that the litigants received a fair trial. Accordingly, appellant’s sixth enumeration of error is also without merit.

7. Appellant contends that the trial court erred in failing to make findings of fact and conclusions of law. However, findings of fact and conclusions of law are not required in criminal contempt cases. PBJ Dev. Co. v. Holben, 259 Ga. 594 (1) (385 SE2d 658) (1989). However, because the record does not reflect that the trial court applied the reasonable doubt standard, we must affirm on the condition that the trial court state whether it applied the correct standard. “If the court states that it did not apply the correct standard, then the trial court is to proceed to apply the correct standard. If the trial court then concludes the evidence is sufficient under the correct standard, the [appellant is] entitled to no further appeal.” PBJ Dev. Co. v. Holben, supra at Division 3.

Judgment affirmed on condition.

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

Decided November 6, 1990

Rehearings denied December 20, 1990

Jones, Brown & Brennan, Rebecca A. Copeland, The Garland Firm, Edward T. M. Garland, Donald F. Samuel, Kathleen V. Duffield, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.