author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A0201.
    In re SPRUELL.
    (407 SE2d 451)
   McMurray, Presiding Judge.

Appellant Billy L. Spruell, attorney, appeals an order holding him in direct criminal contempt of court. Appellant was representing a client upon the trial of certain misdemeanor traffic offenses.

After voir dire, as counsel used the “silent strike” process customarily used for misdemeanor criminal cases in the DeKalb County State Court, the trial judge explained the procedure and other administrative matters to the jury panel. Thereafter, the following colloquy ensued: “MR. SPRUELL: Your Honor, may we approach the bench? THE COURT: Yes. (Whereupon, a sidebar conference was held off the record.) MR. SPRUELL: Judge, we are not getting it — THE COURT: Mr. Spruell, I said we would get it on the record after we pick the jury. Have a seat, Mr. Spruell, and take the strike. Have a seat, Mr. Spruell. MR. SPRUELL: Your Honor — THE COURT: Would you like to re-adjust your strikes? MR. SPRUELL: I have to go back and restrike the jury if this is the way — THE COURT: If you need time to re-adjust the strikes that you have already exercised, the Court will give you time to do that. MR. SPRUELL: All right. Judge, we were clearly told that I had four strikes and one strike — THE COURT: Excuse me, Mr. Spruell. I do not hear argument in the presence of the jury as you well know. I’m giving you extra time to re-adjust your strikes. You have approximately one minute to exercise your strike or you will forfeit that strike. Since you have five strikes, I will give you five minutes to re-adjust your strikes. (Whereupon, the strike process continued.)

“THE COURT: All right. Members of the panel, as I call your name it means that you have not been selected to serve as a juror during the trial of this particular case and because it is one day, one trial, you are released for the week. You do not have to phone in. If anyone has misplaced or used your parking ticket, please let me know and I can give you one because you do have to pay $2.00 if you leave the parking deck before six o’clock. Kim Wieloch, juror number seven, you are excused. Thank you very much for coming up. Robert Sherill, juror number ten, you are also excused. Thank you very much. Don’t forget to let me know if you need a parking pass. Mike Daniel, juror number 12, thank you very much. Eric Grant, number three, thank you. You are excused. Chris Davis, number five, you are excused, Ms. Davis. Thank you very much. Mr. Willie Martin, juror number six, you are excused. Thank you very much. Shirley Engel, juror number 13, you are excused and Kathryn Locklin is excused. Thank you, Ms. Locklin. All right. That means that Carol Bell will be the alternate in this case. Let me ask Ms. Bell to have a seat in the jury box with the rest of the panel. I’m going to give you an oath and then I’m going to find out if you need to use the phone and I’m going to take a brief recess.

“MR. SPRUELL: Your Honor did not ask if this is the jury we picked and I would like to be heard on that. THE COURT: Mr. Spruell, if you will please have a seat, I’m going to impanel the jury. I do not hear argument in the presence of the jury panel. I’m going to take a brief recess. Anything you would like to get on the record, we will get on the record at that time. Let me ask the members of the panel to stand for the oath that will impanel you as a member of this particular jury. (WHEREUPON, the oath was administered to the jury panel.)

“THE COURT: All right. Please be seated. Members of the panel is there anyone who needs to make a phone call? I’m going to take about a ten-minute recess. Let me ask that you take the recess outside of the courtroom. The bailiff will let you know when to come back into the courtroom. There is a phone in my office that my secretary can direct you to for making phone calls. (WHEREUPON, the jury panel was escorted out of the courtroom and the following proceedings took place outside of their presence.)

“THE COURT: All right. Let the record reflect that the jury has left the courtroom. Now, Mr. Spruell, before we get started we need to set some ground rules, and I didn’t feel this was necessary because you have been in my courtroom before, but I will tell you once again. As you know, I do not hear legal argument in the presence of the jury. Anytime you have legal argument or a motion to make, the proper procedure is to inform the Court that you have a motion to make or an objection to make outside of the presence of the jury. I am not going to tolerate your continually interrupting the Court or interrupting these procedures as has been your practice on numerous occasions in my courtroom. I’m only going to warn you once, Mr. Spruell, but you are bordering on contempt. I am not going to tolerate your taking over this case, repeatedly interrupting these procedures. If you have an objection to make on the record, you can state it at this time. MR. SPRUELL: Your Honor, we are generally asked — the defendant is generally asked whether or not that is the jury that he picked and that indeed was not the jury that we struck. The Court — and the record will clearly reflect this. The Court instructed both counsel for the defense, counsel for the State and the jury — of course, there was no need to discuss it with the jury but the Court saw fit to discuss it with the jury that — THE COURT: Mr. Spruell, just a minute. I’m not going to tolerate your spurious remarks indicating what the Court saw fit to discuss. What I discuss is within my discretion and control. You are the one who stood up in the presence of the jury and attempted to make legal argument. Now, as to the alternates, the Court has the discretion to allow either counsel or both counsel to use your total number of strikes in any manner in which you see fit, not only against the alternates. The Court may have indicated that you could use them against the set of alternates, but when it was brought to my attention that the State had used theirs against the main panel, I allowed defense counsel that same opportunity to use their five strikes in any manner that you saw fit. I even gave defense counsel an additional what amounted to ten minutes to re-adjust your strikes, and you utilized that time and you re-adjusted your strikes, and you used your five strikes in any manner in which you saw fit. It is within my sound discretion whether or not I require the attorneys to use their strikes only against the main panel or to use them as divided up among the alternates. Now, you can perfect the record but you were given ample opportunity to re-adjust your strikes and use them in any manner that you saw fit which you did. MR. SPRUELL: May I finish my objection now, please? THE COURT: Yes, sir. MR. SPRUELL: As I was saying, the Court saw fit to instruct counsel and the defense, the defendant and also in the presence of the jury to inform the jury as to how the striking was supposed to take place. The Court clearly instructed both counsel that we had four — that the defense has four strikes on the panel of 12 and the State has two, and that we would have an extra strike for the alternate jurors. The State used their alternate juror strike — after using all of their strikes on the panel of 12, they used their alternate strike on the main panel of 12, and it is clearly, clearly not allowed under the law. THE COURT: State your legal authority for that position. MR. SPRUELL: Well, I’m simply — there is legal authority for it no question about it. THE COURT: Please state it for the record. MR. SPRUELL: The statute sets out — THE COURT: Please state the statute. MR. SPRUELL: — the number of strikes that we should have. THE COURT: Well, I’m familiar with the number of strikes and the number of alternate strikes that the Court can allow, and the number of alternate strikes and the number of alternates to select is a matter within my discretion. But state for the record the code section that requires that the strikes as to the alternates be used only against the alternates and that states that the trial judge has no discretion as to how the strikes can be used. MR. SPRUELL: You want me to state some authority that says that you only use the alternate strikes — THE COURT: State it for the record, Mr. Spruell. MR. SPRUELL: That are only used — THE COURT: Or sit down. State it for the record or sit down. MR. SPRUELL: I’m being interrupted, Judge. I’m trying to tell you — THE COURT: Mr. Spruell, you are in contempt. I’m going to fine yoU $500.00 for being contemptuous in front of the Court, for interfering with the administration of justice. Have a seat.

“MR. SPRUELL: Let me respond, please. THE COURT: Have a seat or I’m going to have the deputy take you away. MR. SPRUELL: Judge, you have to — THE COURT: This contempt was in the presence of the Court and I asked you to state for the record, and you stood there, laughed at the Court, asking me — MR. SPRUELL: I’m not laughing, Your Honor. THE COURT: Let the record reflect that Mr. Spruell is laughing, Your Honor. MR. SPRUELL: The record must reflect that I’m not laughing. THE COURT: Deputy, will you please take Mr. Spruell into custody. I think the law requires that I can fine you $500.00 and sentence you to 20 days in jail and at this time I’m going to have the deputy take you into custody and I am going to sentence you to 20 days in custody. You can take him away right now.

“MR. SPRUELL: Can I get my papers? May I call my lawyer? May I call my lawyer? THE COURT: I’m not your attorney, Mr. Spruell. You seem to have enough information to tell the Court what to do and I will reduce that order to writing posthaste, Sergeant Young. SERGEANT YOUNG: Thank you very much. MR. SPRUELL: Your Honor, my client wants to inquire as to what might happen to him in my absence, and I have to make that inquiry on his behalf. I’m not trying to be contemptuous, of course, but I need to make that inquiry. THE COURT: Well, obviously, Mr. Spruell, we are not going to proceed with the jury trial with your client’s attorney in jail. Ms. Elmore, was there anything that the State wanted to add or offer or suggest? MS. ELMORE: No. Thank you, Your Honor. MR. SPRUELL: I would like to have a copy of the record as soon as possible. THE COURT: I don’t type up the transcript. (WHEREUPON, Mr. Spruell was escorted out of the courtroom.)

“THE COURT: Mr. Foody, is there some reason you are smiling? Do you find this procedure funny? THE DEFENDANT: No. No, ma’am. THE COURT: Why don’t you have a seat? THE DEFENDANT: Not at all. THE COURT: Why don’t you have a seat? MS. ELMORE: I was just going to have somebody get notice so he could sign for the date, next date of the court. THE COURT: What I think I will do is bring the jury in and tell them we will no longer need them in this particular case and excuse them, and I suppose we will have to declare a mistrial because of Mr. Spruell’s actions, and we will — let me see when his 20 days will be up. Okay. I’m going to specially set it for trial on Monday, October the 15th. MS. ELMORE: At nine o’clock, Your Honor? THE COURT: Eight-thirty. MS. ELMORE: Eight-thirty. THE COURT: All right. Mr. Turner, could you bring the jurors in?”

The following day, the trial court entered its written order finding appellant in direct criminal contempt. In the interest of clarity, we set forth the trial court’s entire order:

“ORDER FINDING ATTORNEY BILLY L. SPRUELL IN DIRECT CRIMINAL CONTEMPT OF COURT

“The above-styled criminal case came regularly before the Court for jury trial on Monday, September 24, 1990. The State was represented by Assistant Solicitor Ann Elmore. The Defendant [Michael John Foody] was represented by Attorney Billy L. Spruell.

“During the course of the trial and specifically during the voir dire examination and the jury selection process, the Court finds that attorney Billy L. Spruell conducted himself in a contemptuous and insulting manner in the immediate view and presence of the Court, such behavior totally obstructing the orderly administration and proceedings of the Court, necessitating the Court to declare a mistrial after a lengthy jury selection process. The Court makes the following findings of facts and conclusions of law:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW

“To facilitate the trial of the above-styled case, the Court, in its discretion, directed the Clerk of Superior Court, to send additional jurors to the courtroom to be designated as ‘alternate jurors.’ OCGA § 9-11-47 (b).

“The Court further finds that in misdemeanor criminal cases in the DeKalb County State Courts, it is the custom and practice of the State Courts to conduct a ‘silent strike’ process, whereby the attorneys do not have to announce in open court those jurors who are being excused from service. In misdemeanor criminal cases, the State is allowed two peremptory challenges and the defense is allowed four peremptory challenges. The Court granted both the State and the Defense one additional strike each for purposes of selecting an alternate juror.

“The Court finds that while the attorneys were conducting the silent strike, the Court, in an effort to make the jury feel more at ease, and to familiarize the jury with the process that was taking place, attempted to explain the jury selection process in a conversational manner to the jury.

“The Court further finds that while talking with the jury, the Court indicated that there would be an alternate juror used during the jury trial, and, explained to the panel that the attorneys had been given additional strikes for that purpose to use against the panel of alternates.

“The Court finds that at no time did the Court ever direct the attorneys that the additional strikes could only be used against the panel of alternates. The Court notes that as a matter of custom and practice in the local state courts, it is customary for each individual judge to make a determination, within her discretion, as to whether or not the additional strikes can be used against the entire panel, or, only against the panel of alternates.

“OCGA § 9-11-47 (b) provides that: ‘. . . the additional peremptory challenge (s) may be used only against an alternate juror, and the other peremptory challenges allowed by law shall not be used against the alternates.’

“The code section, by its own terms, does not mandate that the additional peremptory challenges be used only against the alternate jurors. By inserting the word ‘may,’ the code impliedly leaves that determination to the discretion of the trial judge.

“The Court finds that after the State had exercised its third and final strike, and after the defense had exercised four of its five strikes, a bench conference was held whereby attorney Billy L. Spruell brought it to the Court’s attention that the State had exercised its third additional strike against the panel of twelve, as opposed to using the State’s third strike against the panel of three alternates.

“Because the Court had never directed the attorneys that they could not use their additional strike against the entire panel as opposed to only using the additional strike against the panel of alternates, the Court informed Mr. Spruell at the bench that the Court, within its discretion, would allow each attorney to use their additional strike in any manner in which they chose.

“The Court further finds that at that point, attorney Billy L. Spruell became belligerent and began to raise his voice at the Court, while leaning on the Court’s bench and glaring at the Court in a menacing manner. Attorney Spruell then informed the Court that he would have to re-strike the jury because he had used his four strikes against the entire panel and had not intended to use his additional strike in the manner that the Court had provided.

“The Court then informed attorney Spruell that the Court would give him additional time to reorganize his strikes and to use them in any manner he saw fit; including using all five strikes against the entire panel. At that point, attorney Billy Spruell again raised his voice at the Court and refused to lower his voice during the bench conference. The Court had to repeatedly ask Mr. Spruell to have a seat at counsel table, indicating that the Court would give attorney Spruell plenty of opportunity to perfect the record and make his objections as soon as the Court was able to recess the jury for a brief break.

“The Court finds that attorney Spruell still refused to have a seat at counsel table and began to raise his voice at the Court and glare at the Court in a menacing manner, such actions on behalf of attorney Spruell causing the Court to feel physically threatened by his actions. At that point, the Court requested that Court Services send a deputy to the courtroom for assistance.

“The Court further finds that members of the jury panel had also noticed Mr. Spruell’s behavior and his demeanor and the tone of his voice, and the jury panel began to look at the Court with expressions of shock and dismay on their faces. The Court further finds that only until the Court sternly admonished Mr. Spruell to be seated did counsel have a seat at his table.

“The Court finds that after the strike process was completed and Mr. Spruell had readjusted his strikes, the jury was recessed in order for attorney Spruell to perfect the record.

“During the recess, Mr. Spruell indicated to the Court that the Court’s decision to allow both the State and the defense to use their strikes against the entire panel was a violation not only of the case law but of statutory law. The Court and the State requested that Mr. Spruell cite his authority for the record. Mr. Spruell refused to do so.

“The Court then asked Mr. Spruell to cite any authority that he had to support his position for the record. At this point, Mr. Spruell began to openly laugh in the presence of the Court in a derisive and mocking manner. As the Court continued to ask Mr. Spruell to state his authority for the record, Mr. Spruell waved his hands in the air, continued to laugh in the presence of the Court, turned his back on the Court, and refused to respond to the Court’s questions.

“When attorney Spruell refused to respond to a direct question of the Court, and continued to mock the Court and laugh in the presence of the Court, the Court asked attorney Spruell to be seated. Attorney Spruell refused to be seated and only with the assistance of the sheriff’s deputy was the courtroom restored to order.

“The Court finds that Mr. Spruell was given an opportunity to address the Court, but refused to do so, and through his contemptuous manner, totally obstructed the administration of justice and the orderly conduct of the trial. The Court finds that the only statements attorney Spruell chose to make to the Court after his arrest for criminal contempt, were if he would be allowed to call his attorney and could he have a copy of the transcript. The Court finds, that at no time, did attorney Spruell ever attempt to apologize to the Court for his behavior in open Court.

“Based on the foregoing, the Court finds that the actions and manner and behavior of attorney Billy L. Spruell constituted a direct criminal contempt that involved misbehavior in the presence of the Court or so near thereto as to obstruct the administration of justice. OCGA § 15-1-4 (a) (1). The Court further finds, that attorney Spruell treated the Court with disrespect, ridicule and mockery in open Court, in the presence of the jury, in the presence of the State’s attorney, and in the presence of those persons seated in the audience of the courtroom. The Court further finds that the acts and behavior complained of were contemptuous and insulting acts in the immediate view and presence of the Court, which necessitated that the Court declare a mistrial, as the Court was unable to proceed with the trial of the case based on attorney Spruell’s disruptive behavior.

“Direct summary criminal contempt which arises in the presence of the Court and tends to scandalize it and hinder or obstruct the orderly processes of the administration of justice, the preservation of order and decorum in the Court, etc., is exempt from the due process requirements of notice and hearing. Spruell v. The State, 148 Ga. App. 99 [250 SE2d 807] (1978). It is not an abuse of the trial court’s discretion in refusing to allow a defendant a hearing under such circumstances. Such a refusal does not deprive appellant of his due process rights guaranteed by the State and Federal Constitutions. Id., Garland v. The State, 99 Ga. App. 826 [110 SE2d 143] (1959).

“A trial judge may, for a direct criminal contempt committed in the presence of the Court, hold the offender in contempt without a hearing and impose punishment, acting on the trial judge’s own knowledge of the facts. Spruell v. The State, 148 Ga. App. 99[, supra,] (1978).

“The Courts of this state have held that ‘contempt may consist in manner and tone as well as by affirmative act of speech. A Court may be insulted by the most innocent words uttered in a peculiar manner or tone. Words used may or may not be contemptuous according to the manner in which they were spoken. The Court to which the language is addressed is necessarily, in such a case, the Judge in this respect, and its conclusion once formed is conclusive upon every other Court.’ Id.

“The Court therefore finds that not only were attorney Spruell’s actions and behavior in open Court in direct criminal contempt, but, the Court also finds that the tone and demeanor and manner of attorney Spruell’s addressing the Court, and attorney Spruell’s actions of openly laughing at the Court, and glaring at the Court, leaning on the Court’s bench in a threatening and menacing manner, refusing to be seated, also constitute a direct criminal contempt of court.

“The Court also finds that attorney Spruell was given an opportunity to address the Court, and to speak in his own behalf, but he chose to continue to laugh mockingly in the presence of the Court, turn his back on the Court, and continued to refuse to have a seat or respond to any of the Court’s questions. Dowdy v. Palmour, 251 Ga. 135 [304 SE2d 52] (1983). Whereupon, attorney Billy L. Spruell was found in direct criminal contempt of Court, and he was summarily sentenced to twenty (20) days to serve in the DeKalb County Jail.

“The Court finds that even assuming arguendo that attorney Spruell’s position was technically correct, protection of a client’s rights is no excuse for contumacious conduct. Farmer v. Strickland, 652 F2d 427 (5th Cir. 1981), cert. denied, 455 U. S. 944, 102 S. Ct. 1440, 71 LEd2d 656 (1982).

“Once an objection has been made by an attorney and the court has made its considered ruling, subsequent contumacious conduct will not be excused merely for the fact that it was committed by an officer of the court during court proceedings in an attempt to protect the rights of the attorney’s client. Id.

“BASED ON THE FOREGOING COMPLAINED OF ACTS OF ATTORNEY BILLY L. SPRUELL, THE COURT FINDS THAT ATTORNEY BILLY L. SPRUELL CONDUCTED HIMSELF IN A CONTEMPTUOUS AND INSULTING MANNER IN THE IMMEDIATE VIEW AND PRESENCE OF THE COURT, SUCH BEHAVIOR TOTALLY OBSTRUCTING THE ORDERLY ADMINISTRATION AND PROCEEDINGS OF THE COURT, NECESSITATING THE COURT TO DECLARE A MISTRIAL IN THE PROCEEDINGS. THE COURT FURTHER FINDS THAT ATTORNEY BILLY L. SPRUELL COMMITTED A DIRECT CRIMINAL CONTEMPT OF COURT AND SHALL BE SENTENCED TO SERVE TWENTY (20) DAYS IN THE DEKALB COUNTY JAIL.

“SO ORDERED THIS THE 25TH DAY OF SEPTEMBER, 1990, NUNC PRO TUNC TO SEPTEMBER 24, 1990.”

Held:

1. Appellant’s motion to strike from the record a two-page handwritten document, which is apparently a statement by a deputy who was involved in the courtroom incident, is denied. This document was filed subsequent to the trial court’s order being appealed, and has not been introduced in evidence or served upon appellant. Nonetheless, the document’s lack of evidentary value does not compel that it be stricken from the record.

2. “During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his [or her] presence and observed by him [or her] 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., supra at 141-142 (2). “ ‘ “It is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according, to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.” ’ White v. George, 195 Ga. 465, 469-470 (24 SE2d 787) (1943).” Smith v. Adams, 161 Ga. App. 820 (1) (288 SE2d 775).

“[T]he standard of proof in criminal-contempt cases is the beyond-reasonable-doubt standard.” In re Crane, 253 Ga. 667, 669 (2), 670 (324 SE2d 443). “[0]n appeal of a criminal contempt conviction the appropriate standard of appellate review is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cits.]” In re Irvin, 254 Ga. 251, 256 (328 SE2d 215). It follows that the trial court’s contempt order must be supported by the record on appeal and that the trial court is not authorized to base its finding of contempt on facts not in the record. In re Bryant, 188 Ga. App. 383, 384 (373 SE2d 74); In re Hayes, 185 Ga. App. 818, 819 (1) (366 SE2d 204); In re Sykes, 151 Ga. App. 233, 234 (2) (259 SE2d 215).

“The essential elements of criminal contempt of court have been ‘variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court, but “it also includes the interruption of the proceedings. . . .” (Cit.)’ In re Bergin, 178 Ga. App. 454, 455 (343 SE2d 743) (1986). Cases of contempt in facie curiae are distinguished from those involving out-of-court statements. A court’s power to impose punishment for out-of-court statements is limited to those cases in which there is a ‘clear and present danger to the administration of justice,’ while the power to punish for in-court actions involves the inherent power of courts ‘ “to maintain order in their courtrooms and to assure litigants a fair trial. . . .” (Cit.)’ Crudup v. State of Ga., 106 Ga. App. 833, 837 (129 SE2d 183) (1962). Since the occurrence we are reviewing took place in court, the maintenance of order standard applied.” In re Bryant, 188 Ga. App. 383, 384-385 (2), supra.

A comparison of the record and the trial court’s order shows that the record fails to support a significant portion of the findings of fact, as to appellant’s conduct, which are stated as predicates for the finding of contempt. Some of the trial court’s unsupported findings of fact are that appellant was glaring at the trial court in a menacing manner, appellant’s refusal to lower his voice during bench conferences, and those refusals of appellant to take his seat at counsel table which preceded the trial court’s initial announcement finding appellant to be in contempt of court. Furthermore, we find that the trial court’s finding, that appellant refused to respond to the trial court’s questions, is not only unsupported, but also clearly contradicted by the record. The record shows that appellant was adamantly asserting the position that the trial court had erred in its construction of the statutes governing the allocation of peremptory strikes of jurors. (Whether the appellant’s position on that point of law was correct is irrelevant to the contempt conviction. Farmer v. Strickland, 652 F2d 427, 435, supra).

There is some suggestion on the record by the trial court that appellant was laughing at the court. However, we note that this statement, made after the trial court announced that it was holding appellant in contempt was immediately and vehemently denied by appellant. It also appears that after the contempt announcement, appellant failed to immediately take his seat when so directed, but instead attempted to respond to the trial court’s finding of contempt and deny the trial court’s statement that he was laughing. However, since these events followed the trial court’s announcement of its decision to hold appellant in contempt and have not been made the basis of a separate second contempt judgment, this evidence offers no support to the finding of contempt being appealed.

Applying the proper standards to the facts shown by the record in the case sub judice, we conclude that the evidence was not sufficient for any rational trier of fact to find beyond a reasonable doubt that appellant was guilty of contempt. The trial court erred in holding appellant in contempt.

We also note that a review of the record in this case reveals that Spruell was not given an opportunity to speak in his own behalf as mandated by Dowdy v. Palmour, 251 Ga. 135, 142, supra. This amounts to a failure to extend to Spruell the minimum requirements of due process and provides a second basis for the reversal of the judgment of contempt. Taylor v. Hayes, 418 U. S. 488, 496-500 (II) (94 SC 2697, 41 LE2d 897).

Judgment reversed.

Sognier, C. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

While I concur fully with Division 1 of the majority, and the judgment rendered, I cannot fully concur that all that is said in Division 2 is necessary to the decision, and would rely solely on the following premise.

Attorney Billy L. Spruell appeals an order holding him in direct criminal contempt of court. Spruell was representing a client upon the tried of certain misdemeanor traffic offenses.

During jury selection there were several sharp exchanges between Spruell and the trial judge, which culminated in the judge holding Spruell in contempt, sentencing him to 20 days in jail and declaring a mistrial. The next day, a written order was entered finding the following behavior of Spruell contemptuous: “became belligerent”; “raised his voice at the Court”; “leaning on the Court’s bench”; “glaring at the Court in a menacing manner”; “refused to have a seat at counsel table”; “began to openly laugh in presence of the Court in a derisive and mocking manner”; “waved his hands in the air”; “continued to laugh”; “turned his back on the Court”; “refused to respond to the Court’s question”; “treated the Court with disrespect, ridicule and mockery.”

“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.” (Emphasis supplied.) Dowdy v. Palmour, 251 Ga. 135, 141 (304 SE2d 52) (1983).

A review of the record in this case reveals that Spruell was not given an opportunity to speak in his own behalf as mandated by Dowdy. In addition to the due process implications of this requirement, it serves another essential purpose. “[T]he standard of proof in criminal-contempt cases is the beyond-reasonable-doubt standard.” In re Crane, 253 Ga. 667, 670 (324 SE2d 443) (1985). “[0]n appeal of a criminal contempt conviction the appropriate standard of appellate review is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cits.]” In re Irvin, 254 Ga. 251, 256 (328 SE2d 215) (1985). Thus, a practical problem is created where, as here, conduct is involved which is not reflected on the trial transcript. Given the state of the record in this case, no meaningful review may be had.

Decided June 27, 1991.

Brian M. Dubuc, Steven H. Sadow, for appellant.

Billy L. Spruell, pro se.

Albert Sidney Johnson, Lisa A. Foster, for appellee.

Accordingly, the judgment of contempt should be reversed and the case remanded to the trial court for a retrial in accordance with this opinion.

       “As a practical matter, notice in a summary proceeding amounts to a verbal recounting of the conduct the court experienced as offensive and interfering, followed by a challenge to show cause why the conduct should not be held contemptuous.” Johnson and Reaves, “Contempt of Court in Georgia,” 23 Georgia State Bar Journal 66 (1986).

       The procedural posture of the case on retrial will be different from the original proceeding. See Dowdy, supra.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A91A0545.
    FOODY v. THE STATE.
    (407 SE2d 469)
   McMurray, Presiding Judge.

On October 3, 1990, appellant filed his motion for disqualification or recusal of the trial judge. Appellant’s motion was predicated on a number of events which occurred on September 24, 1990, including the trial judge having caused appellant’s counsel to be jailed for direct criminal contempt. (See In re Spruell, 200 Ga. App. 218 (_ SE2d _).) The trial judge proceeded pursuant to Rule 25.2 of the Uniform Rules for the Superior Courts, also applicable in the State Courts, to consider the timeliness of the filing of appellant’s motion and the legal sufficiency of the affidavit accompanying the motion. The motion to recuse was denied as untimely filed and because the affidavit set forth insufficient grounds for recusal. We granted this interlocutory appeal in order to review the denial of appellant’s motion. Held:

Rule 25.1 of the Uniform Rules for the Superior Courts, also applicable in the State Courts, requires that all motions to recuse or disqualify shall be filed and presented to the judge “not later than 5 days after the affiant first learned of the alleged grounds for disqualification, unless good cause is shown for failure to meet such a time requirement.” See Mills v. State, 187 Ga. App. 79 (1) (369 SE2d 283). Computed in accordance with OCGA § 1-3-1 (d) (3), the fifth day following September 24, 1990, was October 1, 1990, therefore appellant’s motion was not timely.

Decided June 27, 1991.

Billy L. Spruell, pro se.

Brian M. Dubuc, for appellant.

Ralph T. Bowden, Jr., Solicitor, Ann M. Elmore, Assistant Solicitor, for appellee.

Appellant contends that the incarceration of his attorney is good cause to allow the late filing of his motion to recuse. However, appellant’s counsel was released from jail on September 25, 1990, and even if the five-day time limit is viewed as beginning upon the release of the attorney, it would end on October 2, 1990, and the appellant’s motion would remain untimely. Thus, we find no reason to conclude that good cause existed for a delay beyond five days after release of appellant’s attorney. We agree that there was no good cause shown for the untimely filing of plaintiff’s motion. As it was not timely filed, there was no error in the denial of appellant’s motion. Mills v. State, 187 Ga. App. 79 (1), supra. The remaining enumerations of error are moot.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A91A0366.
    MURRELL v. THE STATE.
    (407 SE2d 460)
   Pope, Judge.

Defendant James Arthur Murrell and his sister, Arlene Wright Woods, were jointly indicted and tried for the offense of trafficking in cocaine. Defendant was found guilty of the charges against him and Woods was acquitted. Defendant appeals from the denial of his motion for new trial.

1. Defendant first argues the evidence presented at trial failed to show he was in actual possession of the contraband. At the time of defendant’s arrest, OCGA § 16-13-31 (a) (1) had been amended by Ga. L. 1988, pp. 420-424 to authorize a conviction for trafficking in cocaine upon proof of either actual or constructive possession of 28 or more grams of cocaine. However, in defining the crime of trafficking to the jury the trial court charged that “[a]ny person . . . who is knowingly in actual possession of 28 grams or more of cocaine . . . commits the offense of trafficking in cocaine.” (Emphasis supplied.) The court then defined actual possession for the jury and also charged that they “would be authorized to convict only if they should find beyond a reasonable doubt that the defendant knowingly had actual possession, either alone or jointly with other.” (Emphasis supplied.) The State offered no objection to the charge. Thus the question in this case is whether the evidence was sufficient to show that defendant was in knowing, actual possession of the contraband. Because we find the evidence was not sufficient, we must reverse defendant’s conviction.

Woods testified at trial that defendant, her brother, had asked her to drive him from Atlanta to his home in Tifton, Georgia. Woods, her two-year-old grandchild, and the defendant left Atlanta in her car around 5:30 a.m. on the morning of August 24, 1989. Woods drove for a short distance then turned the driving over to defendant so she could take care of the child. Woods testified that they made two stops, one at a rest area and one at a house after they got off at the Sylvester exit on Interstate Highway 75. According to Woods, her brother entered the house first and then invited her and her grandson to come in. A man and woman were in the house and the man gave her brother a telephone number. They then left the house and got back on the Interstate. Woods testified she had dozed off to sleep when she realized the car was slowing and that they were being stopped by a State Patrol officer.

The officer testified he stopped defendant because he was weaving; he also testified that at the time of the stop defendant and Woods were traveling north on Interstate 75, although Woods testified she thought they were still traveling south. Because the occupants of the car appeared nervous, and gave somewhat inconsistent stories about their destination, the officer asked permission to search the vehicle. Both defendant and Woods consented to the search. Woods testified she started to get out of the car with her purse and the officer told her he also needed to search her purse. Both the officer and Woods testified she agreed to the search of her purse. The search of Woods’ purse revealed two “cookies” of what was subsequently identified as crack cocaine wrapped in foil, and both Woods and the defendant were arrested. A subsequent search of the vehicle revealed no other contraband. Woods testified she did not know the cocaine was in her purse and could offer no explanation on how it was placed there. She also testified she had been asleep for most of the trip and that her purse had been open during the trip and was placed on the floorboard on the left side of her left leg on the passenger side of the automobile.

Based on the trial court’s instructions, the jury was authorized to convict the defendant only if they found he was in actual possession of the contraband found in Woods’ purse. “ ‘A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.’ ” (Citation omitted.) Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). Clearly, defendant did not have physical control of the contraband in this case. “The ‘actual possession’ [formerly] required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.” Barrett v. State, 183 Ga. App. 729, 736 (360 SE2d 400) (1987). Here, the evidence was not sufficient to show defendant’s participation in the possession of contraband found in his sister’s purse. “[Mere] presence near hidden contraband [is] not enough to support a criminal conviction requiring actual possession. See In the Interest of C. A. A., 187 Ga. App. 691, 693 (371 SE2d 247) (1988) .” Ramirez v. State, 190 Ga. App. 889, 890 (1) (380 SE2d 323) (1989) . “ ‘ “[Even a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.” (Cit.) . . . Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.’ Shirley v. State, 166 Ga. App. 456, 457 (304 SE2d 468) (1983).” Llaguno v. State, 197 Ga. App. 789, 790-791 (399 SE2d 564) (1990). Consequently, defendant’s conviction must be reversed. See Llaguno, supra; Haxho v. State, 186 Ga. App. 393 (1) (367 SE2d 282) (1988); Oldwine v. State, 184 Ga. App. 173 (1) (360 SE2d 915) (1987); Denham v. State, 144 Ga. App. 373 (1) (241 SE2d 295) (1977); cf. Ramirez, supra; Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989).

Decided June 27, 1991.

Steven Harrell, for appellant.

Edward D. Lukemire, District Attorney, Robert E. Turner, Assistant District Attorney, for appellee.

2. Because of our holding in Division 1, it is unnecessary for us to address defendant’s remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A91A0599.
    LOMAX v. THE STATE.
    (407 SE2d 462)
   Beasley, Judge.

Following Lomax’s plea of guilty to theft by receiving stolen property, OCGA § 16-8-7, the trial court ordered that Lomax pay restitution to the owner of the stolen 1964 Chevrolet Malibu. Lomax contends that the amount was not supported by the evidence and seeks a rehearing on the issue of restitution.

Lomax’s testimony was that for two or three days he had observed the car, which had already been stripped, just sitting in the area where he lived. He was on his way to the store and saw a man in a truck with a tow bar looking at the car. Lomax pretended to own the car and sold it to the man for $50.

The owner of the stolen car testified that at the time of the theft the car had been fully restored except for a paint job. The car was stripped when the owner recovered it from the salvage yard. The owner submitted a victim impact statement which detailed the parts and costs for restoration after recovery as well as other claimed damages. He also offered photographs of the car’s engine prior to the theft. As restitution, the owner sought $5,309.18 for parts, $770 for labor (22 hours at $35 per hour), $50 for telephone calls about the car and the prosecution, $100 for gasoline for trips to check on the car (since at the time he lived out of state), $25 for photographs of the car, and $2,400 for three months of lost wages because of lack of transportation to start a new job.

The court allowed recovery for parts and labor, which amounted to $6,079.18, along with the cost of the telephone calls, photographs, $50 for gas, and $400 for lost wages, for a total of $6,604.18 in restitution. The court did not deduct a projected $3,750 in insurance reimbursement inasmuch as no insurance proceeds had been paid to the owner.

The parties agree that Lomax’ actions in selling the car to a third party constituted an act of conversion for purposes of civil suit and thus, under OCGA § 17-14-2 (2), conversion damages are all that can be ordered as restitution. Lomax argues that inasmuch as his testimony was that the car was already a stripped shell when he obtained possession of it he should not be responsible for another’s damage to the car prior to his own act of conversion.

The enforcement of restitution to victims by those found guilty of a crime is public policy in Georgia. OCGA § 17-14-1. “The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. “ ‘ “Damages” means all damages which a victim could recover against an offender in a civil action.’ OCGA § 17-14-2 (2). ‘(T)he statutory scheme requires the court to determine what type of civil action could be maintained by the victim, and to determine what the proper measure of damages would be in such a civil action.’ [Cit.]” Sutton v. State, 190 Ga. App. 56, 57 (2) (378 SE2d 491) (1989). As trier of the facts, the court discounted appellant’s testimony as to the condition of the car when he converted it and accepted the victim’s testimony. See Lee v. State, 166 Ga. App. 485, 486 (2) (304 SE2d 446) (1983).

“In an action for conversion [in which the plaintiff elects a money judgment], a plaintiff ‘may recover the value of the property at the date of the conversion . . . with a reasonable hire from that date to the date of trial. . . .’ [Cit.]” General Fin. Corp. of Ga. v. Henderson, 160 Ga. App. 242 (286 SE2d 454) (1981). “ ‘ “The market value of goods is the price at which the owner of the goods, or the producer, holds them for sale; the price at which they are freely offered in the market to all the world; such price as dealers in the goods are willing to receive, and purchasers are made to pay, when the goods are bought and sold in the ordinary course of trade. . . .” ’ [Cit.]” Garrett v. State, 175 Ga. App. 400, 404 (2) (333 SE2d 432) (1985).

Decided June 27, 1991.

John O. Ellis, Jr., for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Barbara B. Conroy, Assistant District Attorneys, for appellee.

The victim was seeking a money judgment inasmuch as what remained of the recovered car was merely the unpainted shell. There was no evidence of reasonable hire, nor any evidence of the car’s value either at the time of its theft or after it was stripped. There was no opinion testimony in this regard from the victim/owner, see Ford Motor Credit Co. v. Spicer, 156 Ga. App. 541, 542 (6) (275 SE2d 116) (1980), or anyone else. The photographs were only of the car’s engine. The owner’s itemization of costs of parts and labor projected to restore the car following its recovery did not establish the car’s actual market value prior to or after conversion. Cost price must be coupled with other evidence in order to show value. See Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988).

The ordered damages extraneous to the “specific items of the car,” i.e., gas, telephone calls, photographs, and wages were not recoverable as conversion damages or, hence, as restitution. Even if they were considered part of punitive damages, they would have to be excluded because restitution in the criminal case precludes punitive damages. See Garrett, supra at 404 (2).

There being insufficient evidence of the stolen car’s value and no provision in law for the collateral damages, there was no legal basis for the restitution awarded. The court’s order of restitution must be vacated in its entirety and the case remanded to the trial court to set an amount of restitution based on competent and relevant evidence and existing law. See Lovell, supra at 313 (3).

Judgment vacated and case remanded.

Banke, P. J., and Carley, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0609.
    ATLANTA JOURNAL & CONSTITUTION et al. v. SIMS.
    (407 SE2d 464)
   Sognier, Chief Judge.

Regenia Sims sought workers’ compensation benefits after she was injured in a December 1989 automobile collision that occurred while she was delivering newspapers in the course of her part time employment with the Atlanta Journal and Constitution. The administrative law judge awarded income benefits based on an amount the parties agreed was Sims’s average weekly wage, but rejected her claim that the amount paid to her each week for mileage expense reimbursement should be included in the calculation of her average weekly wage. Sims sought de novo review by the State Board of Workers’ Compensation, which adopted the findings of fact and conclusions of law made by the ALJ. Upon appeal to the Superior Court of Cobb County, the court reversed and remanded for a new hearing on a portion of the ALJ’s findings and conclusions. We granted the application of the Journal and Constitution and its self-insurance administrator for discretionary appeal.

The portion of the ALJ’s order at issue addressed appellee’s claim for inclusion of the mileage reimbursement in the average weekly wage computation. The ALJ considered whether the reimbursement was encompased within Rule 260 (a) of the Rules and Regulations of the State Board of Workers’ Compensation, which provides that “[computation of wages shall include, in addition to salary, hourly pay, or tips, the reasonable value of food, housing, and other benefits furnished by the employer without charge to the employee which are listed as earned income on employee’s Federal Form W-2 for federal income tax purposes.” Having found that the mileage reimbursement was treated by appellant as a reimbursable expense, not as earnings; that the reimbursement was calculated based on the number of miles actually driven by each employee; that no federal or state taxes were withheld on the amount paid as reimbursement; and that appellant did not report such reimbursements on its employees’ W-2 forms, the ALJ ruled that “[sjince the mileage reimbursement was not included in [appellee’s] taxable income . . ., under Board Rule 260 the reimbursement should not be included in her average weekly wage.” (Emphasis supplied.) The superior court found this ruling to be “incomprehensible” because the ALJ referred to “taxable income,” whereas Rule 260 (a) (which the superior court stated was ambiguous) referred to “earned income.” Appellant has enumerated as error the superior court’s remand for a new hearing to interpret “earned income” and “taxable income,” contending the meaning of the Board’s award is clear, while appellee maintains remand was proper because the Board’s award was inconsistent with the principle set forth in Little Suwannee Lumber Co. v. Fitzgerald, 172 Ga. App. 144 (322 SE2d 347) (1984), and the ruling in Lumbermen’s Mut. Cas. Co. v. Babb, 67 Ga. App. 161, 165 (19 SE2d 550) (1942).

Rule 260 was promulgated to set forth what employer payments should be included in the computation required by OCGA § 34-9-260, which provides for payment of workers’ compensation benefits based on the employee’s “average weekly wages” at the time of the injury, but does not define “wage.” Paragraph (a) of Rule 260 was amended in 1988 and 1989 to add the phrase defining “benefits” as those “listed as earned income on employee’s Federal Form W-2.” The superior court correctly noted that this amendment to Rule 260 (a) contains an ambiguity in that under the federal tax code, the W-2 form is intended for reporting wages and certain other compensation paid by the employer, 26 USC § 6051 (a), with “wages” defined, with certain exceptions, as “all remuneration ... for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash,” 26 USC §§ 3401 (a), 6051 (a) (3); see 26 USC § 3121 (a), while the term “earned income” is defined only in the context of employee stock ownership plans. See 26 USC § 401 (c) (2). Given that the federal income tax code does not define “earned income” for purposes of inclusion on the W-2 form, we must interpret the term “earned income” in Rule 260 (a) using the general principles of statutory construction.

It is well established that all enactments are to be “ ‘construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts,’ [cits.]” Wigley v. Hambrick, 193 Ga. App. 903, 905 (389 SE2d 763) (1989), and that we should “look diligently for the intention of the General Assembly, keeping in view . . . the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). Applying these rules of construction, we note that the workers’ compensation law is a humanitarian measure to be construed liberally, Fitzgerald, supra at 145, and its purpose is to provide “ ‘compensation for an injured employee in proportion to his loss [of future earnings] on account of the injury.’ ” St. Paul-Mercury Indem. Co. v. Idov, 88 Ga. App. 697, 699 (77 SE2d 327) (1953). No reported appellate decision has established a comprehensive definition of “wage” as used in OCGA § 34-9-260, although past decisions of this court have interpreted the term to include tips (Employers Comm. Union Ins. Co. v. Bryant, 130 Ga. App. 596, 597 (2) (203 SE2d 896) (1974)); bonuses (USF&G Co. v. Branch, 178 Ga. App. 853, 854-855 (2) (344 SE2d 714) (1986)); and “all payments the employer makes to the employee.” Fitzgerald, supra. Other jurisdictions have determined that the wage calculation should include “ ‘not only wages and salary, but any thing of value received as consideration for the work . . . constituting real economic gain to the employee.’ [Cit.]” Bosworth v. 7-Up Distrib. Co., 355 SE2d 339, 340-341 (Va. Ct. App. 1987) (quoting 2 A. Larson, Workmen’s Compensation Law, § 60.12 (a) (1986), which was cited with approval in Bryant, supra at 597 (2)). Accord Moorehead v. Industrial Comm., 495 P2d 866, 868 (Ariz. Ct. App. 1972); Scyphers v. H & H Lumber, 774 P2d 393, 394 (Mont. 1989).

These holdings set forth the principle that any monetary payment or noncash benefit received by the employee in consideration of labor or services performed that constitutes a net economic gain to the employee should be included in the calculation of the average weekly wage. We find that, given the purpose of the Georgia workers’ compensation law, which is to compensate the employee fully for lost future earnings, St. Paul-Mercury Indem. Co., supra, the term “wage” in OCGA § 34-9-260 means any payment by the employer to the employee for services rendered in the course of employment that constitutes a net economic gain to the employee. Rule 260 (a), which includes in the wage calculation, inter alia, “food, housing, and other benefits furnished by the employer without charge to the employee” that are listed on the employee’s W-2 form, conforms to this definition because an employee’s receipt of such benefits, whether in cash or another form, constitutes real economic gain to the employee resulting from the employment. Accordingly, we will interpret the term “earned income on employee’s Federal Form W-2” as used in Rule 260 (a) to mean not the narrow, unrelated definition in the federal tax code, but instead to encompass all payments or noncash benefits required to be reported on the employee’s W-2 form as income earned by the employee because they constitute real economic gain to the employee and thus are part of the employee’s “wage” within the meaning of OCGA § 34-9-260. Similarly, although the term “taxable income” used by the ALJ in the award at issue has a specific meaning for federal tax purposes (gross income minus standard or itemized deductions, 26 USC § 63 (a)), it is clear from the ALJ’s analysis that he included in the wage computation only those payments that constituted real economic gain, and that he rejected the mileage payment because appellant treated it as an expense reimbursement, not as reported income.

However, the ALJ did not fully address the question whether any portion of the mileage payments constituted real economic gain to appellee. Although the ALJ did determine that the amount paid as reimbursement was based on the number of miles actually driven by appellee (which distinguishes this case from Babb, supra at 165, wherein the employee was paid a flat monthly rate without calculation of actual mileage), the ALJ did not consider whether or to what extent the payments exceeded appellee’s actual driving expenses. See Bosworth, supra at 341; see also Scyphers, supra at 394-395. If the payments were greater than the automobile expenses she actually incurred during the time she was using her automobile in the course of her employment, the differential constituted real economic gain to appellee and should be included in the average weekly wage calculation. Fitzgerald, supra, is factually distinguishable and thus does not require a contrary result, for in that case we held that the employer would not be permitted to deduct from an employee’s wage for the purpose of the average weekly wage calculation an amount it had considered as wages for the purpose of computing workers’ compensation premiums.

Decided June 27, 1991.

Swift, Currie, McGhee & Hiers, George L. Pope, Jr., Jodi B. Ginsberg, for appellants.

Kenneth C. Pollock, for appellee.

Accordingly, we affirm the superior court’s order remanding the case for a new hearing, but direct the superior court to require that the issue on rehearing be limited to comparison of appellee’s actual mileage expenses with the amount paid by appellant as reimbursement for those expenses.

Judgment affirmed with direction.

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


author: Andrews, Judge.

text:
    A91A0714.
    BOWDEN et al. v. RUSSELL et al.
    (407 SE2d 467)
   Andrews, Judge.

Bowden and others, as trustees for BancBoston Financial Company, were granted the right to bring this interlocutory appeal from the trial court’s denial of BancBoston’s motion to dismiss the third-party complaint brought against it by Nancy and Jeff Russell.

After The Russell Corporation failed to pay for petroleum products sold and delivered to it by Phibro Energy, Inc., Phibro sued Nancy and Jeff Russell on the guaranty agreement by which the Russells personally guaranteed the debt owed by The Russell Corporation to Phibro. The Russells filed a third-party complaint against BancBoston claiming that The Russell Corporation’s failure to pay Phibro, which triggered the Russells’ liability under the guaranty agreement, was caused by BancBoston’s breach of an agreement to lend money to The Russell Corporation for use in its business operations.

In its motion to dismiss the third-party complaint, and now on appeal, BancBoston argues that: (1) under OCGA § 9-11-14 (a), it is not “a party to the action who is or may be liable to [the Russells] for all or part of [Phibro’s] claim against [them]”; (2) the Russells have no standing to assert the claims they make in the third-party complaint on behalf of The Russell Corporation.

1. The third-party complaint states a separate and independent claim based on BancBoston’s alleged liability for breach of a lending agreement with The Russell Corporation, rather than a claim based on BancBoston’s secondary liability for all or part of any recovery by Phibro under the Russells’ guaranty of the debt at issue in the main action. Under OCGA § 9-11-14 (a), a defendant may bring a third-party complaint only against one “who is or may be liable to him for all or part of the plaintiff’s claim against him.” The alleged liability of BancBoston for breach of an independent lending agreement with The Russell Corporation is not dependent upon the outcome of the main action on the debt owed to Phibro and guaranteed by the Russells. Michaels v. Kessler, 191 Ga. App. 103, 104 (381 SE2d 103) (1989); Owens v. Citizens Trust Bank, 190 Ga. App. 501, 502 (379 SE2d 594) (1989). The third-party complaint here is not an attempt by the Russells to pass onto BancBoston all or part of the unpaid petroleum bill asserted against them by Phibro, but states a separate and complex lender liability claim for the wrongful termination by BancBoston of a lending arrangement and withdrawal of credit, involving not only The Russell Corporation’s account with Phibro, but the company’s entire business operation. “A defendant cannot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant (but not to tender the third-party as a substitute defendant).” (Citations and punctuation omitted.) Knapp v. Lolley, 177 Ga. App. 786, 787-788 (341 SE2d 306) (1986).

2. Moreover, the Russells unconditionally guaranteed the debt of The Russell Corporation, and, according to the terms of the guaranty, “promise[d] to pay all such sums due the Guaranteed Companies promptly on demand, without deduction for any claim or set-off or counterclaim (whether made by or on behalf of [The Russell Corporation] or Guarantor). ...” Having agreed to this contractual language, the Russells waived any right to assert defenses or claims of The Russell Corporation in discharge of the guaranty, and therefore lacked standing to pursue a third-party complaint on behalf of the corporation. See Bobbitt v. Firestone Tire &c. Co., 158 Ga. App. 580, 581 (281 SE2d 324) (1981); Dunlap v. C & S DeKalb Bank, 134 Ga. App. 893, 896 (216 SE2d 651) (1975).

Decided June 27, 1991.

Trotter, Smith & Jacobs, Kenneth L. Millwood, Scott K. Tippett, for appellants.

Holt, Ney, Zatcoff & Wasserman, David S. O’Quinn, Decker & Hallman, James B. Johnson, Jr., for appellees.

For the above reasons, the trial court erred by denying BancBoston’s motion to dismiss the third-party complaint.

Judgment reversed.

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


text:
    A91A1015.
    WESTBROOK v. THE STATE.
    (407 SE2d 469)
    Decided June 27, 1991.
    Bobby Westbrook, pro se.

      David E. Perry, District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant Westbrook was convicted of the offenses of criminal attempt to commit rape and burglary and sentenced to confinement in the State Penal System. The judgment of the trial court was filed on November 15, 1990. On February 28, 1991, defendant filed a notice of appeal in the Superior Court of Turner County. Held:

Examination of the record fails to reflect that defendant filed a motion for new trial. The record indicates that the instant appeal was filed more than 30 days after the trial court’s judgment was filed. See OCGA § 5-6-38 (a). The record before this Court fails to disclose any request for an extension of time. See OCGA § 5-6-39. Consequently, this Court has no jurisdiction over the appeal and it must be and is hereby dismissed. Baker v. State, 195 Ga. App. 424 (394 SE2d 801).

Appeal dismissed.

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


author: Carley, Judge.

text:
    A91A0184.
    ROBERTS v. ALC FINANCIAL CORPORATION.
    (407 SE2d 429)
   Carley, Judge.

Appellee-plaintiff repossessed certain items of personalty and, after selling them, brought the instant deficiency action against appellant-defendant. Appellant appeals from the grant of summary judgment in favor of appellee.

Decided June 18, 1991

Rehearing denied June 28, 1991

Lucinda Stevens, for appellant.

Michael B. Perry, Robert S. Devins, for appellee.

1. The denial of appellant’s motion to dismiss for lack of service of process and insufficiency of service of process is enumerated as error.

Appellant was personally served by a special process server who had been previously appointed by the trial court pursuant to OCGA § 9-11-4 (c). However, the trial court’s order of appointment was not actually filed until sometime after appellant had been served. Appellant urges that the order of appointment was not valid until it was actually filed and that the service upon him before such filing was, therefore, invalid.

By its terms, OCGA § 9-11-4 (c) does not expressly provide that the validity of the appointment of a special process server is dependent upon the filing of a written order. See generally Sapp v. State, 184 Ga. App. 527, 529 (5) (362 SE2d 406) (1987). Compare Cheely v. State of Ga., 251 Ga. 685 (1) (309 SE2d 128) (1983). Even if the filing of a written order was necessary, there was “substantial compliance” in the instant case. Cheely v. State of Ga., supra at 686 (1). “ ‘ “When the appointment is made (the appointee) is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment.” (Cit.)’ [Cit.]” Sapp v. State, supra at 530 (5). Accordingly, the trial court did not err in denying appellant’s motion to dismiss.

2. Appellant’s remaining enumerations of error relate to the trial court’s failure to grant two motions for a continuance. It appears, however, that in neither instance did the motion state a valid ground for the grant of a continuance. “Moreover, there has been no showing of prejudice to appellant by the denial of a continuance. . . .” MARTA v. Partridge, 187 Ga. App. 637, 638 (3) (371 SE2d 185) (1988).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0547.
    MOORE v. NEBB et al.
    (407 SE2d 411)
   Beasley, Judge.

Elise Powers, as administratrix of the estate of her husband Thomas Powers, sued to recover benefits under an insurance policy on his life. Teresa Moore, daughter of Thomas Powers and the designated beneficiary under the policy, was substituted as the sole plaintiff.

Defendant Life Insurance Company of Virginia prepared a policy on the life of Thomas Powers as a result of his application. Defendant Nebb, an insurance agent, delivered the policy to Powers on November 10,1987. Powers took the policy but no payment was made. Powers was killed in an automobile accident on November 15.

It was alleged by plaintiff that Powers accepted the policy, that he and Nebb agreed that Nebb would return two days later to receive the first premium, that immediate payment was waived, and that although Powers was ready and able to pay the premium, Nebb negligently failed to return for it.

Nebb and Life of Virginia admitted that a policy was delivered to Thomas Powers but defended on the premise that the policy was not an executed contract but was merely a counteroffer which was only physically loaned to Powers while he decided whether to accept it by payment of the premium. Summary judgment to them is appealed from.

Moore’s contentions are fraught with insurmountable legal obstacles. OCGA § 33-24-33 (d); Bedgood v. Woodmen &c. Society, 191 Ga. App. 644 (382 SE2d 421) (1989); Thomas v. Union Fidelity &c. Co., 168 Ga. App. 267, 268 (1) (308 SE2d 609) (1983). Thompson v. Pate, 193 Ga. App. 418 (388 SE2d 30) (1989); Sutker v. Penn. Ins. Co., 115 Ga. App. 648, 653 (155 SE2d 694) (1967); Saddler v. Cotton States &c. Ins. Co., 101 Ga. App. 866, 869 (115 SE2d 398) (1960). Even if this were not so, the portion of the record Moore cites as sustaining her theory instead conclusively negates her right to recover. The proof shows that Powers declined to pay the premium when he was offered the policy, sought to retain it for the purpose of examination by a consultant, and requested that Nebb attempt to obtain another policy with a lower premium.

The only testimony that even remotely related to a purported agreement between Nebb and Powers was given by Elise Powers in deposition. She stated that sometime after Thomas Powers’ death, Nebb told her “he was supposed to pick up a check on Thursday [November 12].” But Thomas Powers never executed a check for the premium. Nebb explained that on November 12 he sought again to encourage Powers to pay the premium, offering to come by and pick up a check, but Powers refused. Nothing in the record shows that a duty was placed on Nebb to obtain a check from Powers.

Under the evidence the policy never was consummated. Saddler, supra. Summary judgment for defendants was demanded.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided May 28, 1991

Rehearing denied June 28, 1991.

Blank & LaChance, A. Russell Blank, for appellant.

Bouhan, Williams & Levy, James M. Thomas, Peter D. Muller, for appellees.


author: Cooper, Judge.

text:
    A91A0053.
    HALL v. THE STATE.
    (407 SE2d 470)
   Cooper, Judge.

Appellant was indicted for one count of possession of cocaine with intent to distribute and one count of misdemeanor possession of marijuana. He was convicted by a jury on both counts and appeals from the denial of his motion for new trial. Appellant’s sole enumeration of error is the denial of his motion for directed verdict of acquittal made at the close of the State’s case.

The evidence viewed in the light most favorable to the jury verdict reveals that Officer Harrington and three other members of the City of Atlanta Red Dog Anti-Drug Task Force, having received information that illegal drug sales were taking place at a certain apartment, positioned themselves outside the apartment. A female confidential informant, known by one of the officers to be reliable, went to the apartment under surveillance, and when she exited, gave the officers a plastic bag of suspected crack cocaine which she told the officers she had purchased from a man in the apartment. The informant agreed to return to the apartment to purchase another bag of cocaine. The informant went back to the apartment, accompanied by Officer Harrington, who stood behind her out of the view of anyone who opened the door. The informant knocked on the door, and when a man opened the door, the informant said “I need another one” and handed the man a ten dollar bill. When the man reached out to hand the woman what appeared to be a bag of crack cocaine, Officer Harrington pushed the informant out of the way, put his foot in the doorway and tried to grab the man, subsequently identified by Officer Harrington as appellant. As Officer Harrington tried to push his way inside the apartment, appellant’s co-defendant, Robert Mann (“Mann”), appeared over the top of appellant and pointed a gun in Officer Harrington’s face. Officer Harrington dove to the ground, abandoning his attempt to get inside the apartment. The four officers positioned themselves at the front and rear of the apartment and approximately 15 minutes later, appellant and Mann came out of the apartment and were placed under arrest. Mann stated that it was his apartment and consented to its search during which, the officers found a mixture of suspected marijuana and cocaine. The white powder contained in both the bag taken from the informant and the mixture found in the apartment was positively identified as cocaine, and the other substance in the mixture was positively identified as marijuana. At trial, the State introduced into evidence the bag of cocaine recovered from the informant when she first came out of the apartment and the mixture of cocaine and marijuana found in the kitchen of Mann’s apartment. However, the bag of suspected cocaine which appellant handed to the woman in exchange for $10 was not recovered and consequently not introduced at trial. Officer Harrington testified that the bag which he saw appellant hand the informant appeared similar to the bag which the informant previously purchased at the apartment. Appellant maintained at trial that he was merely a visitor at the apartment and that he was in the bathroom during the time that Officer Harrington was at the door.

Decided June 28, 1991.

Mary E. Erickson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Sylvia A. Martin, Assistant District Attorneys, for appellee.

“The direction of a verdict of acquittal is proper only where ‘there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.’ [Cits.] If there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. (Cit.)” Ross v. State, 194 Ga. App. 285 (2) (390 SE2d 429) (1990). The officer who accompanied the informant testified that he saw the informant give appellant $10, after which appellant attempted to hand the informant a packet which looked the same as the packet of crack cocaine earlier taken from the informant. Based on the officer’s testimony, a rational trier of fact could have found appellant guilty of the offense charged beyond a reasonable doubt; thus, the trial court did not err in denying appellant’s motion for directed verdict of acquittal. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Garmon v. State, 192 Ga. App. 250 (384 SE2d 278) (1989).

Judgment affirmed.

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


text:
    A91A0298.
    THOMASON et al. v. GOLD KIST, INC. et al.
    (407 SE2d 472)
   McMurray, Presiding Judge.

On October 14, 1988, Mary Ellen Thomason, Richard Thomason, Charlie Paul Hicks, Vicki Mae Thomason Pressley and other members of the Thomason family (plaintiffs) brought an action against Gold Kist, Inc., individually and d/b/a Farmers Mutual Exchange of Gainesville, (“Gold Kist”), alleging that Gold Kist sold plaintiff Mary Ellen Thomason the toxic pesticide Chlordane Emulsifiable Concentrate (“Chlordane”) for the wrongful purpose of killing roaches in the Thomason house and that plaintiffs suffered damages (loss of consortium, property damage and personal injury) as a result of Chlordane poisoning. Plaintiffs also included Stephenson Chemical Company, Inc. (“Stephenson”) as a defendant and alleged that Stephenson negligently tested their home for Chlordane contamination and inaccurately reported that the Thomason house does “ ‘not currently have a problem with regard to exposure to chlordane or other chlorinated hydrocarbon termiticides.’ ” Gold Kist and Stephenson denied the material allegations of the complaint and subsequently filed separate motions for summary judgment. The pertinent undisputed evidence reveals the following:

In July 1982, plaintiff Mary Ellen Thomason purchased the pesticide Chlordane from Gold Kist and periodically used the chemical in her house to kill “roaches.” Mrs. Thomason stopped using the Chlordane in 1986 when she and her daughter became ill after spraying the Chlordane. She contacted the “Poison Control Center” and discovered that her use of Chlordane may be the cause of recurrent medical problems of members of the Thomason household. Mrs. Thomason then contacted the “Environmental Protection Agency” and discovered that Chlordane was not for household use, but that it was only to be used underground.

On August 27, 1986, Mrs. Thomason contacted Stephenson Chemical Company and requested that Stephenson test for the presence of Chlordane in the Thomason house. On October 7, 1986, Stephenson collected an air sample from the Thomason house and, in a letter to Mrs. Thomason dated November 19, 1986, Stephenson reported that “[y]ou do not currently have a problem with regard to exposure to chlordane or other chlorinated hydrocarbon termiticides.”

Between March 24, 1988, and February 21, 1990, a physician examined medical evidence from the bodies of “Mary Thomason, Richard Thomason, Vicki M. Pressley, Vanessa Thomason, Vandora Thomason and Charlie Paul Hicks [and concluded that they] all suffer from cyclodiene toxicity producing a variety of symptoms which are directly attributable to past exposure to the pesticide chlordane.”

The trial court granted summary judgment to Gold Kist on the personal injury claims of plaintiffs Mary Ellen Thomason, Richard Thomason, Charlie Paul Hicks and Vicki Mae Thomason Pressley, finding that these plaintiffs failed to file suit within two years after they suspected that Chlordane was the cause of their alleged injuries. In a separate order, the trial court held that “the case against [Stephenson] must be dismissed” because of the two-year personal injury limitation period of OCGA § 9-3-33. Plaintiffs filed this appeal. Held:

1. “Actions for injuries to the person shall be brought within two years after the right of action accrues. . . .” OCGA § 9-3-33. “ ‘A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.’ [Raymond v. Ely Lilly & Co., 117 N.H. 164, 170-171 (317 A2d 170)].” King v. Seitzingers, Inc., 160 Ga. App. 318, 320 (287 SE2d 252).

In the case sub judice, plaintiffs Mary Ellen Thomason, Richard Thomason, Charlie Paul Hicks and Vicki Mae Thomason Pressley contend the trial court erred in granting summary judgment to Gold Kist, arguing that the two-year statute of limitation did not begin to run against them until after March 24, 1988, when they were diagnosed with symptoms consistent with Chlordane poisoning. This argument is without merit.

The test for determining when the statute of limitation began to run against plaintiffs is not when they were diagnosed with symptoms consistent with Chlordane poisoning, it is when they suspected that their alleged injuries “ ‘may have been caused by [Gold Kist’s] conduct.’ [Raymond v. Ely Lilly & Co., 117 N.H. 164, 170, 171, supra].King v. Seitzingers, Inc., 160 Ga. App. 318, 320, supra. See Boyd v. Orkin Exterminating Co., 191 Ga. App. 38, 41 (3) (381 SE2d 295). Compare Andel v. Getz Svcs., 197 Ga. App. 653, 654 (1) (399 SE2d 226). Nonetheless, plaintiffs Mary Ellen Thomason, Richard Thomason, Charlie Paul Hicks and Vicki Mae Thomason Pressley argue that genuine issues of material fact remain as to the time when the statute of limitation began to run on their personal injury claims.

“ ‘ “When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made, but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. (Cits.) The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time, the opposing party must come forward with rebuttal evidence or suffer judgment against him. (Cit.)” (Cit.)’ Jenkins v. Roper Corp., 185 Ga. App. 219 (363 SE2d 625) (1987).” Wheat v. First Union Nat. Bank, 196 Ga. App. 26, 27 (2) (395 SE2d 351).

(a) Plaintiff Mary Ellen Thomason gave a deposition and testifled that she started using Chlordane in July of 1982 and that she and other members of her family “got sick right after [she] started spraying [the chemical].” Mrs. Thomason further testified that she stopped using Chlordane in 1986 when she and her daughter (plaintiff Vicki Mae Thomason Pressley) became ill after spraying Chlordane. Mrs. Thomason testified that she contacted “The Poison Control Center” and was informed that “she wasn’t suppose to spray the house with it” and that Chlordane “could cause you to have all kinds of problems.” Mrs. Thomason testified that she then contacted the Environmental Protection Agency and was informed that Chlordane was not for household use, but that it was only to be used underground. Plaintiff admitted that she placed a telephone call to Gold Kist on August 19, 1986, and she testified in her deposition that she talked to a man at Gold Kist “[a]fter [she] found out [Chlordane] was bad. . . .” Business records of “the National Pesticide Telecommunications Network” show that on August 21, 1986, Mrs. Thomason admitted to a representative of that agency that her medical problems and the medical problems of the Thomason children seemed to be related to the Chlordane she purchased from Gold Kist. Mrs. Thomason also admitted that she contacted a physician on August 21, 1986, and discussed having her children tested for Chlordane poisoning. An agent for Stephenson filed an affidavit and deposed that on “August 27, 1986, [plaintiff] Mary Ellen Thomason called Stephenson Chemical Company, Inc. [and] asked for an air test of her home specifically for Chlordane.”

(b) Plaintiff Richard Thomason gave deposition testimony that his health started deteriorating (headaches, rash, dizziness, excessive perspiration, cramping feet and sinus problems) after 1982; that he suspected Chlordane to be the cause of his problems “about three years . . .” before May 12, 1989; that his wife (plaintiff Mary Ellen Thomason) talked to him “about calling the EPA and the Poison Control Center[; that] she [told him] what she learned” and that he submitted to a blood test in August of 1986 “[b]ecause we had sprayed [with Chlordane] and we [were] trying to find out what was wrong with us.” Mr. Thomason also testified that he was present when Stephenson tested his home on October 7, 1986, and that he was then aware that the test was “[t]o see how much Chlordane was in it.”

(c) Plaintiff Charlie Paul Hicks gave deposition testimony that he resided with his sister (plaintiff Mary Ellen Thomason) between 1982 and 1986; that he helped spray the Thomason house for bugs “two or three times ...” during 1983 and 1984 and that he became ill (headaches, vomiting, dizziness and diarrhea) shortly after spraying a chemical insecticide. Mr. Hicks further testified that he was present on October 7, 1986, when Stephenson tested the Thomason house for the presence of Chlordane and that he then suspected Chlordane to be the cause of his physical deterioration.

Decided June 28, 1991.

Simmons & Toliver, A. Leroy Toliver, James C. Simmons, for appellants.

(d) Plaintiff Vicki Mae Thomason Pressley gave deposition testimony that she resided with her parents (plaintiffs Mary Ellen Thomason and Richard Thomason) until her marriage in 1984; that she started having recurrent physical problems (dizziness, diarrhea, nausea, miscarriage and migraine headaches) after her mother sprayed Chlordane in the Thomason house and that in “June or July” of 1986 she was informed by her mother that “there was a health hazard [in the Thomason house] as a result of spraying the [insecticide].”

The above evidence is not rebutted and it proves that plaintiffs Mary Ellen Thomason, Richard Thomason, Charlie Paul Hicks and Vicki Mae Thomason Pressley suspected that Chlordane was the cause of their injuries more then two years before the October 14, 1988, complaint against Gold Kist. Consequently, the trial court did not err in granting summary judgment in favor of Gold Kist on these plaintiffs’ personal injuries claims.

2. Plaintiffs contend the trial court erred in dismissing the case against Stephenson based on the two-year limitation period of OCGA § 9-3-33.

Plaintiffs filed their complaint on October 14, 1988, less than two years after Stephenson sent plaintiff Mary Ellen Thomason the November 19, 1986, letter wherein it was reported that the Thomason house has no “problem with regard to exposure to chlordane or other chlorinated hydrocarbon termiticides.” Consequently, plaintiffs’ claim that they relied on this report to their detriment is not barred by the two-year limitation period of OCGA § 9-3-33. Further, Stephenson has not pierced the allegation that its report to plaintiff Mary Ellen Thomason was inaccurate and that plaintiffs relied on the report to their detriment. Consequently, the trial court erred in granting Stephenson’s motion for summary judgment and dismissing plaintiffs’ claims against Stephenson. See Bishop v. Mongol Bhai Enterprises, 194 Ga. App. 874 (2) (392 SE2d 535).

Judgment affirmed in part and reversed in part.

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

McGinn, Webb & Warner, James H. Webb, Jr., Richard P. Lindsey, Alston & Bird, Jay D. Bennett, Richard R. Hays, for appellees.

       Mrs. Thomason explained that she experienced sinus infections; that her daughters (plaintiffs Vicki Mae Thomason Pressley and Vanessa Marie Thomason) experienced ear infections, throat problems and upper respiratory infections and that her husband (plaintiff Richard Thomason) experienced sinus problems and headaches.


text:
    A91A0452.
    BROCKWAY STANDARD et al. v. HARPER.
    (407 SE2d 475)
   Cooper, Judge.

We granted appellant’s application for discretionary appeal in this workers’ compensation case to consider whether the full board erred in its application of OCGA § 34-9-351 (1) and its denial of appellants’ claim for reimbursement from the Subsequent Injury Trust Fund.

The record demonstrates that Janice Harper was employed by Brockway Standard, Inc. and covered by its workers’ compensation insurer, Liberty Mutual Insurance Company, appellants in this appeal. In 1982, Harper suffered an injury at work which required surgery for a herniated lumbar disc in her lower back. Although she was able to return to work following the surgery, Harper had a permanent impairment rating of 8-12 percent and a permanent partial disability of 15 percent. In 1987, she underwent a second surgery for a herniated cervical disc which resulted from another work-related injury. Following the second surgery, Harper developed severe pain in the neck and arm and never returned to work. In a deposition, the physician who performed both surgeries testified that after the second injury Harper’s disability was 20 percent. Appellants paid temporary, total disability benefits to Harper and sought reimbursement from the Subsequent Injury Trust Fund upon the belief that the injuries merged pursuant to OCGA § 34-9-351 (1). The Subsequent Injury Trust Fund denied appellants’ claim, and appellants made application to the State Board of Workers’ Compensation for relief. At the hearing before the ALJ, the sole issue was whether or not there was a merger of the injuries. The ALJ denied reimbursement on the grounds that appellants failed to establish a merger under OCGA § 34-9-351 (1) (A), which requires a finding that the subsequent injury would not have occurred, if the preexisting injury had not been present. The ALJ did not apply subsection (B), which states that a merger exists when “[t]he disability resulting from the subsequent injury in conjunction with the preexisting permanent impairment is materially, substantially, and cumulatively greater than that which would have resulted had the preexisting permanent impairment not been present, and the employer has been required to pay and has paid compensation for that greater disability.” On appeal to the board, the findings and conclusions of the ALJ were adopted. However, in addition, the board concluded that in order to prove a merger, the requirements of both subsections (A) and (B) must be met and that inasmuch as appellants failed to meet the requirements of subsection (A), it was unnecessary to consider subsection (B). The board’s award was appealed to the superior court where it was affirmed by operation of law. On appeal to this court, appellants contend the board erred in finding that the causation requirements of OCGA § 34-9-351 (1) (A) must be met before there can be a merger and in failing to consider whether there was a merger under OCGA § 34-9-351 (1) (B).

Decided June 28, 1991.

Tillman, McTier, & Coleman, George T. Talley, Edward F. Preston, for appellants.

Willis H. Blacknall III, Newton, Smith, Durden, Kaufold & Mc Intyre, Richard S. Thompson, K. Prabhaker Reddy, for appellee.

As we review OCGA § 34-9-351 (1), it is readily apparent that the statute does not prescribe the application given by the ALJ or the board to the evidence adduced in the hearing. The statute provides that merger can be established by any one of three independent alternative tests joined by the co-ordinating conjunction, “or,” and does not require the satisfaction of any combination of the provisions. The language is plain and unambiguous, and “ ‘[w]hen a statute “is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” ’ [Cit.]” Mansfield v. Pannell, 194 Ga. App. 549, 551 (390 SE2d 913) (1990). In our view, the board erred in construing the statute to require that merger be established first under subsection (A) as a condition precedent to determining the existence of a merger under subsection (B) and in failing to consider subsection (B).

Appellee argues that any legal error made in applying OCGA § 34-9-351 (1) was harmless error because there was no evidence to authorize a contrary result, i.e., the finding of a merger under subsection (B). We disagree. While this court, in workers’ compensation cases, has no authority to substitute itself as a fact finding body in lieu of the board (Sanders v. Ga. Pacific Corp., 192 Ga. App. 439 (1) (385 SE2d 101) (1989)), there is relevant evidence in the record relative to subsection (B) which the board failed to consider due to its erroneous application of OCGA § 34-9-351 (1). We, therefore, remand this case to the board. See Mansfield Enterprises v. Warren, 154 Ga. App. 863 (270 SE2d 72) (1980).

Judgment reversed and remanded for further findings consistent with this opinion.

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


text:
    A91A0523.
    WINGSTER v. HUNTLEY’S JIFFY STORES, INC.
    (407 SE2d 481)
    Decided June 28, 1991.

      Charles W. Bell, for appellant.

      Karsman, Brooks & Callaway, Edward M. Hughes, for appellee.
   Cooper, Judge.

Following his acquittal by a jury on charges of armed robbery, appellant brought an action for malicious prosecution against appellee. The trial court, citing Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), granted summary judgment to appellee, and this appeal followed.

In two enumerations of error, appellant contends that the trial court erred in granting appellee’s motion for summary judgment. At the conclusion of appellant’s criminal trial, appellant’s attorney moved for a directed verdict of acquittal and the trial court denied the motion. “In Monroe, the Supreme Court held that one of the essential elements of an action for malicious prosecution, the lack of probable cause (see OCGA § 51-7-40), cannot be established as a matter of law if in the preceding criminal action the court denied the claimant’s motion for directed verdict of acquittal and that ruling stands unreversed and untainted by fraud or corruption. [Cit.]” Davis v. Trusthouse &c. Worldwide, 195 Ga. App. 768 (1) (395 SE2d 235) (1990). Appellant argues that by denying his motion for acquittal, the trial judge in his criminal trial found that the in-court identification was sufficient but made no finding on the merits of the case. Therefore, appellant argues, the trial judge in his malicious prosecution case erred in applying Monroe v. Sigler. We disagree. This case is directly controlled by the holding in Monroe v. Sigler, and “[g]iven that Monroe established a mandatory inference to be drawn under the circumstances here, we affirm the trial court’s grant of summary judgment to appellees.” Davis, supra at 770.

Judgment affirmed.

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


text:
    A91A0645.
    MOSS et al. v. THE STATE.
    (407 SE2d 477)
   Cooper, Judge.

Appellants, Wayne Douglas Moss, Ronnie David Moss and Charles F. Ethier, Jr., were indicted for the offenses of robbery and armed robbery, and a jury trial was commenced on June 20, 1990. Testimony at trial revealed that the two victims, George Janiewicz and Roger Smith, had been eating dinner and drinking beer at a restaurant in Union City. After leaving the restaurant in their automobile, the victims were followed on the interstate by a vehicle which they believed to be a patrol car; however, when the victims got out of their automobile upon reaching Roger Smith’s apartment complex, the vehicle pulled up alongside them. Three or four individuals jumped out of the vehicle and surrounded the victims. Roger Smith was thrown to the ground and robbed, and George Janiewicz was robbed at gunpoint.

The first witness at the trial called by the State was George Janiewicz, who identified appellant, Wayne Douglas Moss, as the driver of the vehicle and as the individual who had approached him earlier in the evening at the restaurant. George Janiewicz also testified as to his prior identification of Wayne Douglas Moss during a pre-trial photographic display.

Following lunch recess, the trial court inquired of the attorneys whether there was any matter that needed to be taken up outside the presence of the jury, and after both attorneys responded in the negative, the trial proceeded.

Roger Smith was called by the State, and he identified the three appellants sitting at the defense table as the individuals who had jumped from the vehicle and robbed him. He also testified as to his prior identification of the appellants during a pre-trial photographic display. On cross-examination, appellants’ counsel asked Roger Smith whether he was certain that the driver of the vehicle was the individual seated at the defense table. Roger Smith responded twice that he was certain.

After Roger Smith concluded his testimony, a police officer sitting in the courtroom informed the prosecutor that the individual seated at the defense table, who was identified as Wayne Douglas Moss and was wearing the same clothes that Wayne Douglas Moss had worn during the morning portion of the trial, was not, in fact, Wayne Douglas Moss. Defense counsel admitted that during the lunch break, he had intentionally and with appellants’ consent, substituted the brother of Wayne Douglas Moss, Robert Moss, in Wayne Douglas Moss’ stead. Wayne Douglas Moss was outside the courtroom, in the witness room, without the trial judge’s knowledge or consent. Thereafter, the State moved for a mistrial based upon appellants’ counsel’s conduct.

Following the grant of the State’s motion for mistrial, the case was called for trial again on June 25, 1990, at which time appellants filed their plea in bar of prosecution based on former jeopardy grounds. The motion was denied and this appeal followed. Appellants argue as their sole enumeration of error that appellants’ plea of former jeopardy should have been granted because the trial court improperly granted a mistrial.

“ ‘Once the jury has been impaneled and sworn, jeopardy attaches. (Cits.) However, where a mistrial is thereafter declared over the objection of a criminal defendant, a retrial is not barred where there is manifest necessity for the declaration of a mistrial or the ends of public justice would be defeated by allowing the trial to continue. (Cits.)’ [Cits.]” Phelps v. State, 187 Ga. App. 236 (369 SE2d 506) (1988). “The trial court has as much authority to grant a mistrial where injustice is caused to the State as where injustice is caused to the defendant. . . .” State v. Abdi, 162 Ga. App. 20, 22 (288 SE2d 772) (1982).

“A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb such ruling in the absence of a manifest abuse of that discretion which threatens the defendant’s right to a fair trial. [Cits.]” Weaver v. State, 178 Ga. App. 91 (2) (341 SE2d 921) (1986). “This is especially true when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice. [Cit.]” Abdi v. State of Ga., 744 F2d 1500, 1503 (11th Cir. 1984). See also Abdi v. State, 249 Ga. 827 (294 SE2d 506) (1982).

A mistrial in this case was declared after defense counsel contrived the substitution of appellant, Wayne Douglas Moss, for his brother, who was dressed in the same clothes as the appellant and sat at the defense table representing himself to be the appellant. The trial court concluded that appellants’ representation to the Court by implication that Robert Moss was, in fact, Wayne Douglas Moss was impermissible, improper and unfairly prejudicial to the State’s case.

Citing OCGA § 17-8-75, appellants argue that only statements made by the prosecutor of prejudicial matters not in evidence are grounds for the granting of a mistrial. We disagree. OCGA § 16-1-8 (e) (2) (B) provides that if the termination of a trial for “[p] rejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant,” then a retrial of a defendant will not be barred. (Emphasis supplied.) Moreover, “[t]he state has just as much right to proceed to trial ‘without injustice’ as doeis the defendant. [Cit.]” McGarvey v. State, 186 Ga. App. 562, 563 (1) (368 SE2d 127) (1988). Therefore, OCGA § 16-1-8 (e) (2) (B) clearly authorized a mistrial based upon appellant’s wrongful conduct in the courtroom.

Decided June 28, 1991.

Wood, Odom & Edge, Arthur B. Edge IV, for appellants.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

Appellants also argue that a mistrial was not appropriate because the trial court could have provided curative instructions to the jury or taken other action to resolve the problem which the trial court believed to exist as a result of the defense counsel’s actions. We disagree. “The manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial. [Cit.]” Abdi v. State of Ga., supra at 1503. See also Burleson v. State, 259 Ga. 498 (384 SE2d 659) (1989). The transcript of the trial clearly reveals that immediately after the State’s motion for a mistrial, the trial court took a recess to consider the matter, including alternatives to a mistrial. Only after due consideration did the trial court conclude that it could not see how the State could do anything to remedy the situation. Accordingly, appellants’ plea in bar of prosecution based on former jeopardy grounds was properly denied.

Judgment affirmed.

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