text:
    76356.
    THE STATE v. SMITH et al.
    (370 SE2d 15)
   Benham, Judge.

Appellees Barnette, Causey, and Smith were indicted on charges of trafficking in cocaine, violating the Georgia Controlled Substances Act, possessing a firearm during the commission of a crime, and possessing a firearm as a convicted felon. The original indictments were filed on September 26, 1986, and were subsequently amended by re-indictments filed on October 17, 1986, and November 19, 1987. On November 20, 1987, a fourth indictment was filed, the purpose of which was to correct substantial errors in the three previous indictments. The appellees filed numerous motions in response to the various indictments, and on November 25, 1987, the trial court held a hearing to dispose of the various motions and to arraign the defendants on the fourth indictment. At that hearing appellees Smith and Causey contended they were confused about which indictment would be heard first, and after some discussion about the effect a nol pros would have on the State’s ability to revive the earlier indictments, the State moved to dismiss the first three indictments. The trial court granted the State’s motion and signed a consolidated order to enable trial to proceed on the fourth indictment. Appellee Smith then filed a plea in bar to the prosecution of the fourth indictment, pursuant to OCGA § 17-7-53.1 (Ga. L. 1987, p. 529), and appellee Causey moved to dismiss the fourth indictment pursuant to the same Code section. The trial court, interpreting the statute in appellees’ favor, granted the motions and the State appeals. We reverse.

OCGA § 17-7-53.1, which became effective July 1, 1987, states: “If upon the return of two ‘true bills’ of indictments or presentments by a grand jury on the same offense, charge or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge or allegation.” Section 2 of the law, which was not codified by the General Assembly, provides that the Code section applies to indictments and presentments returned on or after July 1, 1987. Relying on Isaacs v. State, 257 Ga. 798 (364 SE2d 567) (1988), the State contends that the trial court erroneously applied the statute to the indictments returned before the effective date of the statute. We agree. In deciding whether Isaacs’ plea in abatement pursuant to OCGA § 17-7-53.1 should have been granted, the Supreme Court applied the uncodified section of the Act and held that “[s]ince the indictments quashed were all returned before [July 1, 1987], appellant is not within the group of defendants who may claim the benefit of the statute.” Isaacs at 799. That same analysis holds true in the case before us, in spite of the fact that one of the quashed indictments was returned after July 1, 1987. Under the codified portion of the statute, if there have been two separate true bills of indictment for the same offenses returned after July 1, 1987, and both indictments are quashed after that date, further prosecution of the defendant for the offenses charged in those indictments is barred. In appellees’ cases, there has only been one indictment returned and quashed after the effective date of the statute, and so the further prosecution of those offenses is not barred. Therefore, we must conclude that the trial court erred in granting appellees’ plea in bar and motion to dismiss. However, if the remaining indictments against appellees prove to be insufficient and are quashed, no further prosecution can be pursued on those charges. We note that one of the appellees contends that the State did not raise at the trial level the issue of the applicability of the uncodified portion of the statute, but our review of the transcript shows that the issue was raised by the State during the motion hearing.

Decided May 25, 1988.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellant.

Bobby Lee Cook, Harl C. Duffey III, Charles G. Price, Wayne W. Gammon, for appellees.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    76165.
    BANTA v. QUIK-THRIFT FOOD STORES, INC. et al.
    (370 SE2d 3)
   Sognier, Judge.

Linda A. Banta filed a malicious prosecution action against QuikThrift Food Stores, Inc., Joe Belcher, Charles Hollingshed, and James Barlowe to recover damages resulting from her incarceration on warrants sworn out by Belcher charging Banta with writing bad checks to Thrift-Mart. The trial court granted summary judgment against Banta, and this appeal ensued.

1. Although appellant enumerates as error the trial court’s failure to make findings of fact and conclusions of law in its order granting summary judgment in favor of appellees, her “failure to present either argument or citation of authority on this issue compels us to treat the enumerated error as abandoned. Court of Appeals Rule 15 (c) (2); [cit.]” Brown v. Diaz, 184 Ga. App. 409 (1) (361 SE2d 490) (1987). We note, however, that OCGA § 9-11-52 (b) specifically exempts motions from its ambit.

2. In her remaining four enumerations of error, appellant contends the trial court erred by granting appellees’ motion for summary judgment on the ground that the statute of limitations had run prior to appellant’s filing this action. Appellant argues that dismissal by the prosecutor’s office was not sufficient to terminate the prosecution against her, and therefore the statute of limitations for bringing this action did not begin to run at the time of that dismissal, but only when the time had expired, pursuant to OCGA § 17-3-1, during which she could have been prosecuted. We agree and reverse.

“The applicable statute of limitations, as the parties acknowledge, is OCGA § 9-3-33, which provides in pertinent part as follows: ‘Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues. . . .’” Daniel v. Ga. R. Bank &c. Co., 255 Ga. 29, 30 (334 SE2d 659) (1985). “A cause of action for malicious prosecution does not accrue until the underlying criminal prosecution is ended. [Cits.] Hence a suit for malicious prosecution must be brought within 2 years after the underlying criminal prosecution terminated in plaintiff’s favor. [Cit.]” Id. at 31. The issue for determination, therefore, is when, if ever, the prosecution terminated in appellant’s favor.

The record reveals that appellant was arrested pursuant to warrants issued on December 30, 1982 by a justice of the peace concerning checks issued in November 1982. The record further establishes that on February 25, 1985, these warrants were “dismissed” by the district attorney’s office. It has long been the law that warrants such as the ones sworn out in the case sub judice “may be ‘abandoned’ but [they] cannot be ‘dismissed’ in the technical sense without the concurrence of a judicial officer. Such concurrence may be conclusively established from a docket entry or other such record made by a clerk of the court, even though it may not be a court of record.” Smith v. Embry, 103 Ga. App. 375, 380 (5) (119 SE2d 45) (1961). In Grist v. White, 14 Ga. App. 147, 149 (1) (80 SE 519) (1914), this court said: “While, under the Code, an arrest under process of law will give rise to an action for damages, if the arrest be made with malice and without probable cause, still there must have been a judicial ascertainment of the fact that the arrest was unlawful, evidenced by an order dismissing the warrant or vacating the process under which the arrest was made. [Cit.]” (Emphasis supplied.)

While we do not agree with appellant that the “dismissal” in this case may be characterized as merely an interoffice memorandum, neither do we agree with appellees that the specific holdings in Bailey v. Gen. Apt. Co., 139 Ga. App. 713 (229 SE2d 493) (1976), or Daniel, supra, have any application to the facts of this case since, unlike the case at bar, the prosecutions in those cases had been terminated by nolle prosequi. As a nolle prosequi may be entered only after an examination of the case in open court, and with the consent of the court, see OCGA § 17-8-3, such entry naturally satisfies the requirement of “judicial ascertainment.” In the case sub judice, the evidence proffered by appellees in support of their motion for summary judgment did not establish that there had been a “judicial ascertainment” of the fact that the prosecution against appellant had been dismissed. No order had been entered, and the record does not indicate any filing with the court. In fact, there would have been no bar to a subsequent carrying on of the prosecution at any time until November 1986, when the statute of limitations had run for the offense with which appellant was charged. See OCGA § 17-3-1 (c). Accordingly, appellees did not establish that the statute of limitations for this cause of action began running on the date the warrants were dismissed by the district attorney’s office, nor was any other act or occurrence shown to have triggered the running of the statute of limitations prior to November 1986.

Decided May 9, 1988

Rehearing denied May 26, 1988

Richard F. Otonicar, for appellant.

Donald M. Fain, Mark D. Belcher, for appellees.

The prosecution on the bad check charges was terminated in appellant’s favor in November 1986, when the statute of limitations on the criminal charges expired without her having been prosecuted. At that point, appellant’s right to bring this action accrued. On February 27, 1987, the date on which appellant filed this action, only three months had expired of the two-year period allowed for commencing this action, and there is thus no question that appellees were not entitled to judgment as a matter of law on the ground that the statute of limitations had run. The trial court’s judgment must therefore be reversed. See Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987).

Judgment reversed.

Deen, P. J., and Carley, J., concur.


author: Benham, Judge.

text:
    75999.
    DAUGHTRY v. COHEN.
    (370 SE2d 18)
   Benham, Judge.

Daughtry filed a medical malpractice action against Dr. Cohen and others for failing to diagnose and notify Daughtry of the presence of gall stones in her system. Cohen moved to dismiss the suit, claiming that he had not been properly served with process before the statute of limitation had run. The trial court granted the motion, finding that Daughtry did not exercise due diligence in serving Cohen, and thus the statute of limitation barred the action as to him. Daughtry appeals the judgment entered thereon, and we affirm it.

1. Appellant argues that the statute of limitation did not run on March 19, 1986, two years after she was examined by Cohen, but extended to September 1986, two years after her condition was diagnosed by another physician. Based on that premise, she contends that the service on Cohen, which was not perfected until June 3, 1986, was still timely. We cannot accept appellant’s contention. Her suit is based on Cohen’s alleged failure to diagnose her condition, to review diagnostic test results, and to advise her of her condition at a time when he should have become aware of it. Obviously, he should have become aware of it either at the time of examination, March 19, 1984, or at the time that the ultrasound report became available to him, March 22, 1984. Therefore, the statute of limitation expired no later than March 21, 1986. OCGA § 9-3-71 (a). We see no connection between Cohen’s alleged negligence in March and the subsequent diagnosis by an independent physician in September that would justify extending the statute of limitation for that period of time. Under appellant’s analysis, Cohen’s alleged negligence still continued after September 1984, since he had still not notified her of her condition.

2. In her second and third enumerations of error, Daughtry takes the position that she exercised due diligence in attempting to serve Cohen and that she substantially complied with the requirements of service, relying on Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986) , and Roberts v. Bienert, 183 Ga. App. 751 (360 SE2d 25) (1987) . In Brim, the plaintiff made numerous efforts to locate the defendant, whose “location was constantly shifting” between counties in this and other states. This court held that the trial court erred in dismissing the complaint for insufficient service of process in light of the fact situation presented. In Roberts, it was held that the plaintiff did not meet the diligence requirement as applied in Brim. The Roberts court found that even though service was accepted by Bienert’s longtime business partner and “apparent agent,” who passed the papers on to Bienert but made no attempt to notify the marshal that Bienert had a new place of business, the appellants were not justified in relying on the sheriff’s return of service once they received Bienert’s responsive pleading, which raised the defenses of no service, insufficient service, and improper venue.

Our review of the record in the case before us leads us to conclude that the result reached in Roberts, not Brim, is the appropriate one here. Appellant filed her complaint on March 18, 1986. The Fulton County marshal filed the entry of service regarding Cohen on March 21, stating that service was not perfected because there was no such street address, and that more information regarding the address was needed within 30 days. Appellant received notice of the lack of service on March 25, but did not make an attempt to have appellee served again until April 28, when she attempted service at appellee’s office address in Cobb County. Appellee’s office manager was served with the papers at that time, and the return of service appellant received on May 1 indicated that fact. Although appellant’s counsel states in his affidavit that he “immediately proceeded” to have the clerk of court prepare another “second original” of the summons and complaint, those papers were not delivered to the Cobb County sheriff’s department for service until May 29, 1986, one day after appellee filed an answer to the complaint. Appellee’s answer was apparently filed in response to the process received by his office manager, and raised the defenses of the statute of limitation, insufficiency of process, and personal jurisdiction. Appellee was finally personally served on June 3, 1986. Appellant gives no reasons for the 30-odd days that intervened between each attempt to perfect service on Cohen, and we find no justification for it in the record. “The burden is on the plaintiff ... to show diligence in attempting to insure that proper service has been made as quickly as possible. [Cits.]” Jarmon v. Murphy, 164 Ga. App. 763, 764 (298 SE2d 510) (1982). Appellant’s assertion that she exercised due diligence is not supported by the record. “ ‘ “The trial court was authorized to exercise its discretion in determining whether under the facts presented to it the delayed service constituted laches so as to warrant dismissal where the statute of limitation had run before the service was belatedly perfected.” ’ ” Id. at 764. Given the facts of this case, we see no abuse of that discretion.

3. In her final enumeration of error, Daughtry argues that Cohen’s motion to dismiss should have been denied because he was personally served on June 3, and did not respond to that service or otherwise amend the answer he filed on May 28. She takes the position that his failure to respond a second time should be treated as a waiver, estoppel, or default, but offers no statutory or judicial authority for such a proposition. We consider this argument in light of Kiplinger v. Oliver, 244 Ga. 527 (260 SE2d 904) (1979), in which it was reaffirmed that one who pleads to the merits of a case and does not raise any defense of lack of personal jurisdiction, defective process, or improper venue thereby waives any objection he may have had under the CPA; and in light of OCGA § 9-11-55 (a), which states that a case in which an answer has not been timely filed automatically becomes in default. Conversely, since appellee did file a timely answer to the first copy of appellant’s complaint he received, and did raise the proper defenses, he thereby preserved them. It would be unduly burdensome to require that a defendant refile such a responsive pleading once he is properly served, particularly when the improper service was not a result of any deliberate action on his part.

Decided May 26, 1988.

Charles L. Day, Michael C. Ford, for appellant.

Sidney F. Wheeler, Jerry L. Gentry, Robert D. Roll, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76006.
    MARLOWE v. THE STATE.
    (370 SE2d 20)
   Sognier, Judge.

Appellant was convicted of rape and he appeals.

1. Appellant contends the trial court erred by charging the jury that every person is presumed to be of sound mind and discretion. Appellant argues that the charge deprived him of an important mitigating circumstance he was attempting to prove, namely, that because he was severely retarded, he had a diminished capacity to know what he was doing. Appellant also argues that a jury instruction that creates a mandatory presumption violates the due process clause of the United States Constitution by relieving the State of the burden of persuasion on an element of the offense charged. These arguments are without merit.

The court charged the jury as follows: “[E]very person is presumed to be of sound mind and discretion, but this presumption might be rebutted.” In regard to appellant’s argument concerning his alleged mental retardation, a mental abnormality, unless it amounts to insanity, is not a defense to a crime. Wallace v. State, 248 Ga. 255, 262 (8) (282 SE2d 325) (1981); Hudson v. State, 171 Ga. App. 181, 184 (4) (319 SE2d 28) (1984). Further, insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence. Harris v. State, 256 Ga. 350, 353 (5) (349 SE2d 374) (1986). Thus, the court’s charge did not relate to an element of the offense of rape, and did not relieve the State of the burden of proving all elements of the offense charged. As to appellant’s argument that the charge relieved the State of the burden of persuasion on an element of the offense charged, thereby depriving appellant of his right to due process, this court has held that such a charge is not unconstitutionally burden-shifting. Thompson v. State, 178 Ga. App. 723, 724 (1) (344 SE2d 696) (1986).

2. Appellant alleges error by the court in allowing Dr. Lewis J. Jacobs to testify as to appellant’s capacity to voluntarily waive his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)), thereby violating appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States.

Not only did appellant not object to such testimony, but he himself called Dr. Jacobs as a witness at a hearing held outside the presence of the jury to determine the voluntariness of appellant’s statement to the police. Although there is some confusion as to whether appellant’s enumeration of error relates only to the testimony of Dr. Jacobs at the Jackson-Denno hearing, as stated in his brief, or whether his continuing objection to admission of his confession included the testimony of Dr. Jacobs on the merits, we will treat it as the latter. Treating the enumeration in this manner, we find appellant’s enumeration controlled adversely to his contention by Harris v. State, supra at 352 (3). In that case the court discussed Estelle v. Smith, 451 U. S. 454 (101 SC 1866, 68 LE2d 359), relied on by appellant, and stated that Estelle held there is no violation of a defendant’s Fifth Amendment rights against self-incrimination in a situation where the application of the psychiatrist’s findings was confined to a determination of the issue of competency. Since Dr. Jacob’s testimony related solely to appellant’s ability to understand his rights, it was not error to admit such testimony. Harris, supra.

3. Appellant contends it was error to admit his confession into evidence as he was incapable of understanding his Miranda rights. At a hearing outside the presence of the jury on this issue Terry Cooper, an investigator with the Jackson County Sheriff’s Department, testified that he advised appellant of his Miranda rights. Cooper first asked appellant his age and education, and determined that appellant could neither read nor write. Therefore, Cooper went into more detail than normal, by reading one sentence from the “rights” form, putting the sentence into simple terms, and asking appellant if he understood the sentence. After each sentence appellant indicated that he understood the sentence, and to make certain that appellant understood his rights, Cooper went through this entire procedure twice. At the conclusion of his explanation, Cooper asked appellant if he would waive his rights and talk to Cooper about the charge; appellant said yes, he would.

Dr. Jacobs was called as a defense witness at the hearing and testified that he is a psychiatrist who evaluated appellant, whose retardation is in the mild range of mental retardation. Dr. Jacobs testified that if each of the statements in the Miranda warnings were explained to appellant, as was done by Cooper, appellant would understand his rights, even though he might not understand specific words, such as “detrimental” and “waive.”

Decided May 26, 1988.

Jerry C. Gray, for appellant.

Reverend Henry Segrest was also called as a defense witness at the hearing and testified that he is the director of the New Dawn Training Center, a State facility for the care of mentally retarded persons, and had held that position for fourteen years. Appellant was a student at the center for over four years, and based on Segrest’s contact with appellant over that period of time, it was Segrest’s opinion that appellant would not understand his Miranda rights. Segrest also testified that appellant was a very passive person and in the presence of an authority figure would always do what an authority figure asked him to do or directed him to do. Segrest has no training in psychiatry or psychology; all of his training and education is in the field of theology-

Appellant argues that the testimony of Segrest showed clearly that appellant could not understand his Miranda rights. If Segrest had been the only witness on this issue, we might agree. However, another defense witness, Dr. Jacobs, testified that appellant’s mental retardation was in the mild range and appellant could understand all of his rights if they were explained to him, as was done by Cooper not once, but twice. Further, Cooper testified that appellant stated he understood his rights.

A mere showing that a person who confessed to a crime may have suffered from some mental disability is not a sufficient basis on which to exclude the statement. Corn v. State, 240 Ga. 130, 136 (3) (240 SE2d 694) (1977); Mitchell v. State, 162 Ga. App. 780, 781 (3) (293 SE2d 48) (1982). “A trial court may be authorized to find that an individual is capable of waiving his rights even though there is evidence to the effect that he is moderately retarded. [Cit.]” Moses v. State, 245 Ga. 180, 186 (5) (263 SE2d 916) (1980). The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by appellate courts unless clearly erroneous. Miller v. State, 240 Ga. 110, 112 (239 SE2d 524) (1977); Marshall v. State, 248 Ga. 227, 231 (3(9)) (282 SE2d 301) (1981). Considering all the evidence presented at the hearing on this issue, we find no error in the trial court’s ruling admitting appellant’s confession into evidence.

Judgment affirmed.

Been, P. J., and Corley, J., concur.

Timothy G. Madison, District Attorney, for appellee.


text:
    76041.
    76042.
    HOLCOMB v. PEACHTREE CITY et al. PEACHTREE CITY v. HOLCOMB.
    (370 SE2d 23)
   Sognier, Judge.

We granted appellant Holcomb’s application for discretionary appeal to review the order of the Superior Court of Fayette County granting her petition for writ of certiorari from the Peachtree City Municipal Court and remanding the case for retrial.

Appellant Robin Holcomb was convicted of furnishing alcohol to a minor in violation of Peachtree City Municipal Ordinance § 3-31. Holcomb was found guilty by the Peachtree City Municipal Court and appealed to the Superior Court of Fayette County by writ of certiorari. The superior court found, among other things, that the City had failed to prove an essential element of the offense charged and sustained the writ. However, it did not dismiss the charge for insufficiency of evidence, but remanded the case for another trial to give the City another opportunity to prove its case.

1. Appellant Holcomb contends the trial court erred by returning the case to the lower court for retrial, because such retrial is barred by the constitutional provision against double jeopardy.

Art. I, Sec. I, Par. XVIII, Const, of Georgia, 1983, provides: “No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.” In State v. Burroughs, 244 Ga. 288, 289-290 (2) (260 SE2d 5) (1979), reversed on other grounds, the court held: “Because conviction of violation of a municipal ordinance subjects a person to stigma and punishment by incarceration or fine, [cit.], a defendant prosecuted in a municipal court proceeding is in ‘jeopardy’ in the constitutional sense. [Cits.]”

OCGA § 16-1-8 (d) (2) provides, in pertinent part: “A prosecution is not barred within the meaning of this Code section if . . . (2) Subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, . . . unless there was a finding that the evidence did not authorize the verdict.” (Emphasis supplied.) Under this Code section (formerly Code Ann. § 26-507), “where a person is prosecuted and convicted, a subsequent prosecution is barred if subsequent proceedings (e.g. . . . appeal) resulted in a finding that the evidence did not authorize the verdict. . . . That is to say, unless the evidence at the first trial is sufficient to authorize the verdict of guilty, a second prosecution is barred.” Bethay v. State, 235 Ga. 371, 375 (1) (219 SE2d 743) (1975). See also Hall v. State, 244 Ga. 86, 93 (5) (259 SE2d 41) (1979).

Decided May 26, 1988.

M. Van Stephens II, for appellant.

James H. Webb, Jr., Carlton H. Jones III, for appellee.

Since the superior court found that the City’s evidence failed to establish an essential element of the offense, i.e., was insufficient to authorize the verdict, a retrial for the same offense was barred by the double jeopardy provision of the Georgia Constitution, supra. Because our decision on this issue is dispositive of the appeal, we need not address Holcomb’s first enumeration of error relating to entrapment.

Case No. 76042

2. In the cross-appeal the City alleges the trial court erred by remanding the case to Peachtree City Municipal Court because by raising a defense of entrapment, appellant Holcomb had to admit that she committed the offense charged. “The decision of the superior court on certiorari reversing the judgment of a municipal court convicting one of a violation of municipal ordinance is not subject to review by this court. [Cit.] Only the accused may appeal an adverse judgment in a criminal proceeding. [Cits.]” City of Winder v. Abner, 127 Ga. App. 61, 62 (192 SE2d 584) (1972). Accordingly, the City’s appeal is dismissed.

Judgment reversed in Case Number 76041. Appeal dismissed in Case No. 76042.

Deen, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    76218.
    LOVELL v. DEPARTMENT OF TRANSPORTATION.
    (370 SE2d 27)
   Carley, Judge.

Appellee-condemnor filed a declaration of its taking of a small strip of land from a large parcel which belonged to appellant-condemnee. Appellant was dissatisfied with the amount of estimated just and adequate compensation paid into the registry of the superior court by appellee and he filed a timely notice of appeal pursuant to OCGA § 32-3-14. Accordingly, a jury trial was conducted on the issue of the value of the property taken, and a verdict in the amount of $5,000 was returned. Appellant appeals from the judgment entered on the jury’s verdict.

In his sole enumeration, appellant contends that the trial court erred in giving one of appellee’s requests to charge. However, the only objection to the charge that is now raised by appellant on appeal differs from the objection to the charge that was raised by him in the trial court. “Review of a charge on appeal is limited strictly to the grounds of objection stated at the trial. [Cit.]” Revbar Corp. v. Marthaler, 180 Ga. App. 559, 560 (1) (349 SE2d 795) (1986). See also McChargue v. Black Grading Contractors, 122 Ga. App. 1, 4 (2) (176 SE2d 212) (1970). “In the trial court appellant did not make the objections to the charge which [he] raises on appeal. Finding no substantial error harmful as a matter of law, we reject [his] complaints concerning the charge. [Cit.]” Cassier v. Golden, 151 Ga. App. 618, 619 (2) (260 SE2d 750) (1979). See also McFarland v. Kim, 156 Ga. App. 781, 784 (5) (275 SE2d 364) (1980).

Decided May 26, 1988.

Ernest H. Woods III, for appellant.

John A. Dickerson, Michael J. Bowers, Attorney General, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    76573.
    BOX v. THE STATE.
    (370 SE2d 28)
   Deen, Presiding Judge.

Appellant Box was accused, tried, and convicted of violation of OCGA § 40-6-391 (a) (2), driving while under the influence of a drug to a degree which made him a less safe driver than he would have been but for having used the drug. He appeals from the judgment, enumerating as error the trial court’s denial of his motion that the results of the chemical tests administered to him pursuant to OCGA §§ 40-5-55 and 40-6-392 be ruled inadmissible because the crime laboratory report on the tests did not state on its face the exact numerical quantity of the drugs (marijuana or its metabolites and cocaine or its metabolites) found in his blood and urine. Held:

In Durden v. State, 187 Ga. App. 154 (369 SE2d 764) (1988), this court held, on facts virtually identical with those of the instant case, that the State had failed to comply with the requirements of OCGA § 17-7-211 in that the written scientific reports provided to defendant (identical in form to those provided to appellant Box) omitted the actual test results, and that the defense was prejudiced thereby. Durden is controlling on the issue raised, and we are therefore bound to reverse the judgment below.

Judgment reversed.

Carley and Sognier, JJ., concur.

Decided May 26, 1988.

Christopher P. Brooks, for appellant.

Kenneth Stula, Solicitor, Dean C. Broome, Jr., Assistant Solicitor, for appellee.


text:
    76672.
    DENNIS v. INDEPENDENT FIRE INSURANCE COMPANY.
    (370 SE2d 24)
   Deen, Presiding Judge.

On June 7, 1983, appellant purchased an insurance policy on her home from appellee. The premiums were due and payable monthly, and the contract provided for a thirty-day grace period. During the first week of the month, a representative of the company would collect the monthly premium at the appellant’s home. The policy was paid up to the end of January 1987. In the representative’s deposition, he states that he went by her home in February during the first week, as was his custom, to collect the premium, but she was not at home. Apparently, she was in the hospital. He called again the following week, but she was still not at home. He claims that he contacted her during the third week, but she stated that she did not wish to keep the policy because a recent rate increase was too high. Mrs. Dennis denied that he visited or spoke to her. He did not return, and she failed to pay any further premiums. Her house was destroyed by fire on April 24,1987. She brought suit to recover for the fire loss, alleging coverage under the policy. The insurance company moved for summary judgment, and the motion was granted. Mrs. Dennis appeals. Held:

Mrs. Dennis admits knowing that the company’s representative came by to collect the premium each month, but she did not leave any money with her daughter-in-law to pay the premium. She also admits that her daughter-in-law informed her that the representative had been by the house to collect the premium.

The policy provides: “Should our agent fail to call for any premium or fail to accept your tender of such premiums, you remain responsible for paying the premium when due at one of our offices.” The policy further provides: “If the premium due is not paid by the expiration of the grace period, your policy is no longer in force and no insurance coverage is provided.” Mrs. Dennis did not tender the February, March and April premiums until October 19, 1987, some three months after she filed suit.

Appellant’s sole argument on appeal is based on OCGA § 13-4-4, which states: “Where the parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.”

Decided May 26, 1988.

O. L. Crumbley, Jr., Charles R. Free, for appellant.

Walter E. King III, for appellee.

The evidence shows that the parties were abiding by the terms of the contract and that none of the terms were waived by the company. The agent called at appellant’s residence to collect the premiums, and she did not pay him or remit them to the company’s office. There was no mutual departure from the terms of the contract. Prudential Ins. Co. of America v. Nessmith, 174 Ga. App. 39 (329 SE2d 249) (1985).

Construing the evidence in favor of the party opposing the motion, Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981), we find that the contract clearly provided that if the agent should fail to call to collect the monthly premium the policyholder was responsible for paying the premiums when due at one of the company’s offices. Mrs. Dennis admitted that she was aware of the representative’s visit during the first week in February, but made no subsequent effort to pay the premium during the grace period. She also admitted having a copy of the policy, and that she could read.

We find no issues of fact requiring jury resolution.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76690.
    OWENS v. THE STATE.
    (369 SE2d 919)
   Deen, Presiding Judge.

The appellant, Willie Owens, pleaded guilty to a charge of burglary, and was sentenced to four years’ probation. In addition to the usual conditions of probation, as special conditions Owens was required to reimburse Lowndes County for the expenses incurred for his court-appointed attorney, and to make restitution in the amount of $2,265.22. On appeal, Owens contends that imposition of these two special conditions of probation was error.

Owens was indicted for burglary on September 18, 1987. On October 16, 1987, the trial court appointed counsel for Owens after finding that he was indigent. Prior to entry of the sentence on January 29, 1988, no further inquiry or findings were made as to Owens’ income, assets, or ability to pay for counsel. Also, no hearing or discussion on the matter of restitution was conducted prior to entry of the sentence. Held:

Decided May 26, 1988.

Richard J. Joseph, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

1. OCGA § 17-12-10 (c) allows for recoupment from a defendant of the costs incurred by the county in appointing counsel for that defendant, “[t]o the extent that a person covered under this Code section is able to provide for the employment of an attorney. . . .” As in Fowler v. State, 184 Ga. App. 177 (360 SE2d 918) (1987), the trial court inappropriately sentenced the indigent defendant to pay for the cost of his legal representation, where the record provides no basis for a determination that he was able to pay for the employment of the attorney. Accordingly, that portion of the sentence must be vacated.

2. Concerning the determination of whether restitution is appropriate, OCGA §§ 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court. Patterson v. State, 161 Ga. App. 85 (289 SE2d 270) (1982). OCGA § 17-14-10 provides that “[i]n determining the nature and amount of restitution, the ordering authority shall consider: (1) The present financial condition of the offender and his dependents; (2) [T]he probable future earning capacity of the offender and his dependents; (3) The amount of damages; (4) The goal of restitution to the victim and the goal of rehabilitation of the offender; (5) Any restitution previously made; (6) The period of time during which the restitution order will be in effect; and (7) Other appropriate factors which the ordering authority deems to be appropriate.” This was not done in this case, and the omission was not harmless error. Baker v. State, 183 Ga. App. 100 (357 SE2d 896) (1987). Accordingly, “[t]he case must be remanded to the trial court to reconsider the matter consistent with the statutes and the case law.” Id. at 101.

Judgment reversed and case remanded with direction.

Carley and Sognier, JJ., concur.


text:
    76699.
    BUICE GRADING & PIPELINE, INC. v. BALES.
    (370 SE2d 26)
   Deen, Presiding Judge.

On September 9, 1985, Buice Grading and Pipeline, Inc. (“Buice”), entered into a Contractor Base Agreement with MJB Corporation in which Buice agreed to perform certain grading work and to construct storm drains and sanitary sewers on property owned by MJB. Throughout the contract MJB is referred to as “BPI” or “Bales Properties, Inc.” The contract was executed by appellant and Donald C. Chapman, Jr., the secretary-treasurer of MJB. It was never executed by appellee, Charles C. Bales, Jr.

On October 16, 1986, appellant filed suit against MJB, Prospect Holding, Inc., Bales Properties, Inc., and Charles C. Bales, Jr., individually, contending that it had performed certain services under the contract and it had not been paid. Appellee Bales denied the allegations in the complaint and raised the defense of lack of privity of contract between himself and appellant. He then filed a motion for summary judgment, contending that he had not entered into a contract with appellant, he had not guaranteed any obligation in favor of appellant, and had not personally received any consideration for MJB’s or BPI’s entering into the Contractor Base Agreement. Buice Grading appeals from the grant of summary judgment in favor of Bales. Held:

Appellant contends that Bales, individually, was improperly excluded from the contract; that BPI and MJB were closely held by Charles Bales; that the document in question refers to them interchangeably; and that Bales manipulated the two corporations at will for his own personal benefit. He further contends that based on these facts a material issue of fact remained for jury trial as to Bales’ personal responsibility for payment. We find no evidence in the record to support his allegations that the corporations were manipulated by Bales. The contract itself provides that “this agreement is entered into by and between MJB Corporation hereinafter called ‘BPI’ and the Contractor whose name appears above.” This provision does not indicate that Bales was manipulating the two corporations.

In Paragraph 27 the contract further provides: “this agreement . . . shall constitute the entire written document and there are no other agreements, oral or written, by and between the parties hereto, except as to contractor warranties under any prior or contemporaneous Contractor Base Agreement with BPI which warranties are incorporated by reference herein for all purposes.”

Bales executed an affidavit in which he stated that he is the president of MJB, that he did not personally enter into a contract with Buice Grading, and that all payments made to Buice Grading were made by Bales Properties, Inc., to Danny Buice, individually. In his affidavit, Danny Buice contends that he was dealing with Charles Bales individually.

We find that appellant’s assertions that Charles Bales is individually liable under the contract are without merit. The parole evidence rule, OCGA § 24-6-1, provides: “[p]arol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.” See also Hayes Constr. Co. v. Thompson, 184 Ga. App. 482 (361 SE2d 865) (1987). Appellant does not contend that any part of the contract is ambiguous so as to require parole evidence to be admitted to aid in construing it. Parole evidence cannot, however, be admitted “to add to, take from, or vary the writing itself.” Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523) (1981). Indeed, the contract in question provides that it is the entire agreement between the parties.

Decided May 26, 1988.

Anthony O. L. Powell, for appellant.

Rollin E. Mallernee II, for appellee.

On a motion for summary judgment, once the moving party has carried its burden of showing the absence of any genuine issue of fact as to the existence of a contract between himself and appellee, individually, the responding party has a duty to show that there is a genuine issue of fact or suffer the grant of summary judgment against it. Levine v. First Bank of Savannah, 154 Ga. App. 730 (270 SE2d 20) (1980). Appellant failed to meet its duty of showing that there is a genuine issue of fact requiring jury resolution as to Bales’ individual liability.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Beasley, Judge.

text:
    75799.
    NEBBITT et al. v. THE STATE.
    (370 SE2d 1)
   Beasley, Judge.

Co-defendants Nebbitt and Fornlow appeal their convictions and sentences for burglary, OCGA § 16-7-1, and the denial of their motion for new trial.

Appellants and a third defendant, now deceased, were charged with the burglary of a used clothing store. On March 6, 1986, between approximately 6:30 p.m. and 9:00 p.m., the store was broken into and merchandise taken. Vinette, who lived in a building next to the store, left his apartment about 9:00 p.m. to get into his car and saw a man standing in front of the store. Vinette observed him walk back and forth and, while facing the inside of the building, make a signal which Vinette “took to be a signal for whoever it was inside the building to stay low.” After Vinette came around to the driver’s side of his car, he noticed a hole in the panel of the store’s door.

Vinette returned to his apartment and telephoned the police. While on the phone, he opened his street-side window and observed the same man down on the street with two other men. Vinette described the clothing of all three men to the police on the phone. After giving his name, address, and phone number to the police, Vinette went downstairs, opened the door, and followed the three men for about 75-100 yards until he flagged down a patrol car. While following the men, Vinette observed that “they were passing back and forth between them what appeared to be a bundle of clothing.”

The three were arrested and found in possession of a coat and jewelry with store tags still on many items. Vinette could identify the men, by their clothing, as those he had seen in front of the store and had followed.

Defendants denied the burglary. They claimed that Nebbitt found the coat with the jewelry inside against a pillar under a nearby interstate bridge. Fornlow testified that no one else was under the bridge.

1. Appellants contend that their case rested solely on circumstantial evidence and that the evidence was insufficient to support their convictions because it did not exclude every other reasonable hypothesis save their guilt; therefore, as a matter of law, the jury could not find them guilty of the charged burglary beyond a reasonable doubt.

It is inaccurate to characterize the case as one resting solely on circumstantial evidence. Vinette was an eyewitness to the men’s actions regarding the store, i.e., one signalling to someone inside the store and the three with a bundle outside the store shortly thereafter. Even though Vinette did not see the men’s faces, he was able to positively identify them.

Even assuming appellants’ characterization is appropriate, their evidentiary argument fails. “ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ OCGA § 24-4-6. ‘The term hypothesis as used refers to such reasonable inferences as are ordinarily drawn by men in the light of their experience in every day life.’ [Cit.] Whether the circumstances are sufficient to exclude every reasonable hypothesis save [the accused’s] guilt is generally a question for the jury’s determination. [Cit.] However, the jury’s finding may be disturbed when the verdict is unsupportable as a matter of law. [Cit.]

“Our review of the evidence is governed by the principle that it must be taken in a light most favorable to the verdict. [Cit.] On appeal, our review of the evidence is in the context of ascertaining whether the evidence supports the verdict, applying the Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), standard of proof. [Cits.]” Lewis v. State, 186 Ga. App. 349 (1) (367 SE2d 123) (1988).

Defendants were at the scene of the burglary during the time that the crime was committed and acted in a manner consistent with the criminal act. Once they left the site of the store, they were in constant view of one witness or another except for a gap of two to four seconds. Two of the defendants were seen passing back and forth fruits of the burglary. Taking into account every reasonable inference drawable by the jury in reaching the verdicts, the jury could have found that the evidence excluded every reasonable hypothesis save the guilt of the defendants for the burglary. Id. The evidence was sufficient under Jackson v. Virginia. See Wallis v. State, 170 Ga. App. 354 (1) (317 SE2d 331) (1984).

2. Appellants contend that inasmuch as their case rested solely on circumstantial evidence, the trial court erred in refusing to give their request to charge number four which provided in pertinent part, “the defendant is not to be convicted on mere suspicion or conjecture. The State has not met its burden where reasonable minded jurors must resort to conjecture or where the evidence is equally consistent with a theory of guilt as with the theory of the defendant’s innocence. If you must resort to conjecture or if the evidence is equally consistent with guilt or innocence, then I charge you that you must then return a verdict of not guilty for the defendant.”

The requested instruction was substantially covered in the court’s charge because the court instructed the jury about the presumption of innocence, the State’s burden including the explanation that “reasonable doubt” was “not a vague or a conjectural doubt. . . nor a fanciful doubt. . . not an imaginary doubt. . . [nor] a possibility that the defendants may be innocent . . . ,” and what was necessary to warrant a conviction on circumstantial evidence. It is not “ ‘necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court. [Cit.]’ [Cit.]” Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218) (1980).

3. Appellants further contend that the court erred in not charging their requests “on the lesser offenses of theft by taking and theft by receiving stolen property . . . thereby taking away . . . their sole defense” and that the failure to so charge was in direct contradiction to the holding in Anglin v. State, 182 Ga. App. 635 (356 SE2d 564) (1987).

First, “as a matter of fact or of law, theft by receiving is not a lesser included offense of burglary.” State v. Bolton, 144 Ga. App. 797, 798 (1) (242 SE2d 378) (1978). As to the question of theft by taking, Anglin held that the failure to give requested charges which form the basis of a sole defense effectively removes the issue from the jury’s determination and to that extent prejudices the defendant’s right to a fair and impartial trial. But this case presents quite a different situation. The defense here was not that defendants unlawfully took or, being in lawful possession, unlawfully appropriated the goods with the intention of depriving the owner of the goods so as to be theft by taking, OCGA § 16-8-2, but rather that defendants lawfully found the items. Therefore, if the jury believed defendants’ claim, under the indictment for burglary and under the instructions of the court, it was a complete defense to the burglary.

Decided May 4, 1988

Rehearing denied May 27, 1988.

John A. Pickens, for appellants.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

4. Lastly, appellants maintain that the trial court erred in denying their motion for mistrial on the basis of allegedly improper closing argument by the State.

The objected-to statements were: “your decision is simple. Burglary is a very serious crime in our community. We live in this community. We have to work in this community. We have to play in this community, and this community is not going to be safe as long as people think that they can commit crimes like this and come into court and the jurors in Fulton County are going to find them not guilty and send them back out the door again.”

“Appeals to convict for the safety of the community have been upheld. See Minor v. State, 143 Ga. App. 457 (2) (238 SE2d 582) (1977) and cits.” Whitaker v. State, 246 Ga. 163, 167 (11) (269 SE2d 436) (1980). Moreover, the State “ ‘may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.’ [Cit.]” Keys v. State, 156 Ga. App. 553, 554 (275 SE2d 128) (1980).

Judgment affirmed.

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


author: Pope, Judge.

text:
    76199.
    HARRISON v. THE STATE.
    (370 SE2d 7)
   Pope, Judge.

Clarence Harrison brings this appeal from his conviction and sentence of rape, robbery and kidnapping. Held:

1. The evidence was sufficient, when viewed in a light favorable to the verdict, to convince any rational trier of fact as to defendant’s guilt of the crime of rape beyond a reasonable doubt. See, e.g., Wooten v. State, 229 Ga. 409 (191 SE2d 838) (1972); Ford v. State, 180 Ga. App. 807 (1) (350 SE2d 816) (1986); Moore v. State, 151 Ga. App. 100 (1) (258 SE2d 915) (1979).

2. Defendant cites as error the trial court’s allowing a police investigator to relate hearsay to explain his conduct. In response to a question as to whether his canvassing the area of the crime had resulted in any clues as to the identity of the perpetrator, the investigator stated that an unidentified person “that I talked to there told me that... a guy that lived at 132 North Fourth Avenue that lived over in that area had a watch that he was trying to sell. And upon my investigation ... I found out that . . . was Clarence Harrison’s residence.” The investigator did not take any action “as far as arresting or anything” based upon this information. However, he later went to the residence and asked to speak with defendant, who was not at home at the time. The investigator was aware that a watch had been taken from the victim at the time of the crimes charged.

The defendant objected to the above testimony on the ground of hearsay, and on appeal he cites as supporting authority the holding in Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984), viz, the “admission of the testimony of the investigating officer relating his conversation with a third party ‘for the limited purpose of explaining the officer’s conduct in the continuing investigation of the [crime’ (cit.)] was error” as such information was neither material nor relevant, i.e., was not a matter concerning which the truth must be found. Id. at 536-537. The State countered defendant’s hearsay objection with the argument that this testimony explained the investigator’s “conduct in developing this defendant as a suspect, . . . the whole issue in this case [being] the identity of the defendant.” The trial court instructed the jury that the limited purpose of this testimony was to explain the investigator’s conduct in this matter.

We assume arguendo that under the circumstances in this case, the trial court erred in admitting the subject testimony. See Teague, supra; cf. Cody v. State, 124 Ga. 446 (1) (52 SE 750) (1905); Bettis v. State, 160 Ga. App. 109 (1) (286 SE2d 759) (1981); and Forbes v. State, 51 Ga. App. 465 (2) (180 SE 914) (1935), wherein it was material to explain how or why a search for property was made. Nevertheless, we find it highly probable that the error did not contribute to the judgment. The victim positively identified defendant as the perpetrator of the crimes; defendant was unable to establish an alibi for the time in question; the “guy” attempting to sell the watch at defendant’s residence was not identified; and the trial court gave appropriate limiting instructions. Any error under these circumstances was not harmful to defendant so as to require reversal of his convictions. See Griffin v. State, 170 Ga. App. 287 (3) (316 SE2d 797) (1984). See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

3. The victim was moved from place to place where she was repeatedly raped. We thus find no basis for concluding that the crimes of rape and kidnapping merge in this case as neither is included in the other as a matter of fact or as a matter of law. Ellis v. State, 181 Ga. App. 630 (5) (353 SE2d 822) (1987); Clark v. State, 166 Ga. App. 366 (2) (304 SE2d 494) (1983). The holding in Frederick v. State, 181 Ga. App. 600 (2) (353 SE2d 41) (1987), does not require a contrary result because in the case at bar the State did not use up all the evidence that defendant committed the crime of kidnapping in establishing the crime of rape.

Decided May 13, 1988

Rehearing denied May 27, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Elisabeth G. MacNamara, James W. Richter, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    75964.
    ORKIN EXTERMINATING COMPANY, INC. v. FLOWERS.
    (370 SE2d 29)
   Sognier, Judge.

George Flowers brought suit against Orkin Exterminating Company seeking damages for Orkin’s fraudulent concealment and negligent inspection in regard to a termite inspection report issued by Orkin. The jury returned a verdict of $1,150 in actual damages, $10,000 in attorney fees and $20,000 in punitive damages in favor of Flowers. Orkin appeals from the trial court’s denial of its motion for a new trial or judgment notwithstanding the verdict.

The evidence adduced at trial by appellee revealed that in 1982 appellant’s employee, Alfred Doucette, prepared a wood infestation inspection report or “clearance letter” on a house appellee had contracted to purchase. The clearance letter contained the statement “that a qualified inspector employed by this firm has conducted a careful visual inspection of the readily accessible areas” of the subject house. The findings in the clearance letter indicated no active infestations of any sort, but reported visible evidence of a previous infestation and structural damage caused by subterranean termites. A diagram, referenced by the clearance letter as being “an integral part of this report,” was attached to indicate “location of visible evidence of infestation and/or structural damage as keyed.” The diagram indicated old damage caused by subterranean termites at the bottom of a door frame. The diagram also pictured a box with six “x’s” but it is uncontroverted the “x’s” represented entry to the crawl space under the house, and not the existence of any termite damage there.

Appellee thereupon purchased the house and assumed the seller’s contract with appellant for prevention and treatment of the house. After living in the house for several years, appellee contracted to sell the house in 1986 and in preparation for the closing, obtained a second wood infestation inspection report from appellant. Although the 1986 clearance letter again revealed only that previous infestation and structural damage caused by termites was present in the house, the extent of the damage, as diagrammed in the attached graph, indicated far more extensive damage throughout the crawl space of the house than had been indicated on the 1982 clearance letter diagram. There was evidence that when appellee, thinking the more extensive damage had been caused between 1982 and 1986, sought to make a claim for the termite damage, an agent of appellant told appellee’s attorney that appellant could “get in line” with his claim. Subsequently, appellee learned that the damage reflected in the 1986 report had preexisted the 1982 report and indeed had existed prior to 1952, a fact known to appellant’s agents at the time the 1982 clearance letter was issued. Doucette, who made the 1982 report, testified that when he made the inspection, he was not a licensed termite technician, and that he had not examined any of the crawl space under the house, which both he and another witness testified was essential to proper inspection of a house. Although Doucette testified he had placed a note on the diagram stating he had not been able to inspect under the house, the evidence established that prior to the delivery of the clearance letter the note had been removed by appellant with no comparable notation to that effect anywhere else on the report. Doucette also testified that upon informing his supervisor of his inability to inspect under the house, his supervisor had urged Doucette to copy the diagram in the 1952 inspection of the house, which Doucette refused to do.

1. Appellant contends the trial court erred by denying its motions for a new trial and judgment n.o.v. because there was no evidence of fraudulent concealment to support the award of punitive damages, no evidence of bad faith or stubborn litigiousness to support the award of attorney fees, and no evidence to support appellee’s claim for negligent inspection. “In reviewing the overruling of motions for . . . judgment n.o.v., the appropriate standard to be utilized is the any evidence test. [Cits.]” Meadows v. Douglas County Fed. &c. Assn., 169 Ga. App. 150, 152 (5) (312 SE2d 169) (1983). “Further, as regards the review of an order from a motion for new trial, ‘(o)ur responsibility on appeal is not to weigh the evidence and give a de novo opinion on where the greater weight of the evidence lies but merely to determine if there is sufficient evidence to authorize the trial court’s judgment.’ [Cit.]” Ballenger Corp. v. Dresco &c. Contractors, 156 Ga. App. 425, 429-430 (274 SE2d 786) (1980). Under the facts set forth in detail above, we find there was more than sufficient evidence to support every aspect of appellee’s claim and thus the trial court did not err by denying appellant’s motions for a new trial or judgment n.o.v.

Decided May 27, 1988.

Richard P. Decker, Jay M. Barber, Ronald W. Self, for appellant.

Robert C. Martin, Jr., for appellee.

2. Since the record clearly reveals that the actual damages sought by appellee did not include any sums for the repair of the termite damage identified in the diagram of the 1982 clearance letter, we find no merit in appellant’s final enumeration of error.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76055.
    TONN & BLANK, INC. et al. v. D. M. ASPHALT, INC.
    (370 SE2d 30)
   Benham, Judge.

Appellant Tonn & Blank, Inc. (Tonn) was the general contractor for a shopping center construction project and appellant Hartford Fire Insurance Company (Hartford) was the surety on two construction bonds supplied by Tonn. Appellee D. M. Asphalt, Inc. (D. M.) filed a materialman’s lien against the improved property and its owners, and sued Tonn; Hartford; and Pond & Sand, Inc. (Pond), seeking to recover payment for asphalt D. M. had supplied to D. E. Smith, Inc. (Smith) for paving work performed in the course of the construction. Tonn sought summary judgment on the issue of its liability under the bonds, but the trial court denied its motion. We granted Tonn’s motion for interlocutory review.

1. In order to enforce the construction bond, D. M. must establish its rights both to its lien and foreclosure thereof, upon the recorded lien which the bond replaced. M. Shapiro & Sons v. Yates Constr. Co., 140 Ga. App. 675, 678 (231 SE2d 497) (1976). Relying on Georgia-Pacific Corp. v. Dan Austin Properties, 126 Ga. App. 191 (190 SE2d 131) (1972), Tonn contends that the trial court erred in denying its motion, arguing that it was undisputed that Smith was a supplier, not a subcontractor, and that since D. M. was a supplier to a supplier (Smith), D. M. is not entitled to claim a materialman’s lien as a matter of law. We disagree. Under OCGA § 44-14-360 (6), subcontractor “means, but is not limited to, subcontractors having privity of contract with the prime contractor.” In the absence of a clearer definition, we construe the word “subcontractor” to mean one who, pursuant to a contract with the prime contractor or in a direct chain of contracts leading to the prime contractor, performed services or procured another to perform services in furtherance of the goals of the prime contractor. The record reveals that the manager of D. M.’s operations, who was also the vice-president of Smith’s Georgia operations, testified on deposition that D. M. supplied asphalt to Smith, and that Smith actually performed the paving services pursuant to a contract it had with Pond, which had a contract with Tonn. Since there was evidence that Smith may have been a subcontractor, and not a supplier, it cannot be said as a matter of law that D. M. was a supplier to a supplier, and, therefore, the trial court did not err in denying Tonn’s motion for summary judgment. See OCGA § 44-14-361.

Decided May 27, 1988.

R. Peter Catlin III, for appellants.

Michael B. Perry, for appellee.

2. Under the terms of Tonn’s labor and material bond, a valid claim may be brought by “one having a direct contract with the Principal [Tonn] or with a subcontractor of the Principal for labor, material, or both . . .” Since D. M. had a contract with Smith, and there is evidence that Smith had a contract with a subcontractor of Pond, which had a contract with Tonn, there is a question of fact whether D. M. has a valid claim under the bond, based on the furnishing of the asphalt to Smith. There being no definition of subcontractor in the bond document, we again rely on our definition as applied in Division 1 of this opinion. Accordingly, Tonn’s contention that its motion should have been granted because there was no privity of contract between it and D. M. also has no merit. Compare Associated Distrib. v. De La Torre, 138 Ga. App. 71 (1) (225 SE2d 462) (1976), overruled on other grounds, Adair Mtg. Co. v. Allied &c. Enterprises, 144 Ga. App. 354 (1b) (241 SE2d 267) (1977). The trial court did not err in denying Tonn’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76083.
    IDEAL POOL CORPORATION v. HIPP et al.
    (370 SE2d 32)
   Carley, Judge.

Appellant-defendant contractor contracted with appellee-plaintiff homeowners to build a swimming pool on their property. The contract price was $14,500. The pool was to be constructed in accordance with specifications contained in the contract and its accompanying drawings. It is undisputed that the basic design of the pool was originally provided to appellant by appellees and that the design was then mutually modified by appellant and appellees. It is also uncontested that the design of the pool, as it was finally modified, was incorporated into a sketch which was signed by the parties prior to the finalization of the contract. The pool was constructed in substantial accordance with the specifications and it was not only usable but was also actually used by appellees. However, appellant refused to install a diving board, notwithstanding that the installation of such an item was a specification of the contract. Appellant based its refusal on reasons of safety. Due to the unique design of the swimming pool, the installation of the diving board would be in violation of the safety standards established by the National Swimming Pool Institute.

Appellees brought suit against appellant for breach of contract. The case was tried before a jury. Although at trial appellees offered evidence of other defects in the construction of the pool, it was the absence of the diving board that represented appellees’ primary objection to appellant’s contractual performance. The jury returned a $17,255 verdict in favor of appellees. Appellant appeals from the judgment that was entered on the verdict and from the denial of its motion for new trial.

1. Appellant enumerates as error the trial court’s failure to grant its motion for new trial based upon the insufficiency of the evidence to support the jury’s award of $17,255 as recoverable damages for the breach of the $14,500 contract to construct the swimming pool.

At trial, appellees presented evidence that there were remediable defects in the construction of the swimming pool, other than the absence of a diving board, which defects had been or could be repaired for approximately $2,000. This evidence was relevant and probative as to appellees’ damages attributable to appellant’s breach of contract. “Where the defects in the [swimming pool] as constructed may be remedied at a reasonable expense, it would be proper, we think, to deduct from the contract price the sum which it would cost to complete it according to the requirements of the plans and specifications. [Cit.]” Small v. Lee & Bros., 4 Ga. App. 395, 397 (61 SE 831) (1908). See also Ayers Enterprises v. Adams, 131 Ga. App. 12, 17 (3) (205 SE2d 16) (1974). However, appellees also presented evidence that the absence of the diving board could be safely remedied only by a complete redesign and reconstruction of the swimming pool at a cost of some $12,000 to $15,000. This evidence was not relevant and probative as to appellees’ recoverable damages for appellant’s breach of contract. “If the contractor has built a structure substantially adapted to the purposes for which it was built, and of which the owner is in the use and enjoyment, but the defects of the structure can not be made to conform strictly to the requirements of the contract, except by an expenditure which would deprive the contractor of adequate compensation for his labor and materials, justice and equity would require the adoption of another measure of damages.” Small v. Lee & Bros., supra. See also Spainhour v. Nolind, 97 Ga. App. 362, 364 (1) (103 SE2d 154) (1958).

This rule as to “another measure of damages” which is stated in Small v. Lee & Brothers, supra, “is correct whether the [structure] is ‘substantially adapted’ to its purpose and the owner is getting the benefit of it ... or whether it is allegedly ‘worthless.’ It has some value, if only for scrap ([cit.]), and that value may obviously be whatever it is worth as a result of the irremediable defects. The owner should not have the benefit of that value, however low, by recovering [more than] the entire contract price; the property’s value as diminished by irremediable defects should be deducted from the value of the [structure] as it should have been completed according to the contract.” Ray v. Strawsma, 183 Ga. App. 622, 623 (359 SE2d 376) (1987). Thus in a case such as that at bar, wherein an asserted nonconformity with the contract is not reasonably remediable, “the true measure of damage, and one which would not be unjust in its application to either party, would be the difference between the value of the [improvement] as finished and the [improvement] as it ought to have been finished. To require that the [improvement] should be [redesigned and] rebuilt, and that the contractor should pay the cost of rebuilding, or that the estimated cost of making the [improvement] conform to the contract should be allowed as damage, would be to give an unconscionable advantage to the owner, and would deprive the contractor of adequate compensation for his work and materials.” Small v. Lee & Bros., supra at 398. Accordingly, the proper measure of damages with regard to appellant’s failure to install the diving board, as a defect which was not reasonably remediable under the facts of this case, is the diminution in the value of the swimming pool as constructed when compared to its value had it been constructed in strict conformity with the contract. The uncontroverted evidence at trial was that the presence or absence of a diving board would have virtually no effect on the value of the completed swimming pool.

It is evident that the evidence as to an improper measure of damages attributable to the absence of the diving board greatly influenced the jury. The verdict returned for appellees greatly exceeded not only the contract price, but also exceeded the verdict which would have been authorized by other evidence which was relevant and probative of the damages attributable to the other defects in the swimming pool. However, the extent to which the jury was influenced by the consideration of the improper evidence as to the cost of redesigning and rebuilding the pool cannot be determined. Accordingly, this case cannot merely be remanded with instructions to the trial court that the judgment be amended by writing off such amount as is attributable to the recovery of damages for the diving board. Instead, the entire judgment must be reversed. See Lazenby v. Ware, 178 Ga. 463, 464 (6) (173 SE 86) (1934); Story v. Monteith, 180 Ga. App. 517 (349 SE2d 760) (1986). The verdict is not authorized under the relevant and probative evidence when reviewed in accordance with the proper measure of damages in a case of this type and the trial court erred in failing to grant appellant’s motion for new trial on that ground. Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640 (1) (278 SE2d 182) (1981). See also Accent Walls v. Parker, 162 Ga. App. 633 (1) (292 SE2d 509) (1982); Crawford & Assoc. v. Groves-Keen, 127 Ga. App. 646, 649 (1) (194 SE2d 499) (1972). Compare Piedmont Bldrs. v. Fullerton, 157 Ga. App. 126 (1) (276 SE2d 277) (1981).

Decided May 27, 1988.

Duane B. Jackson, for appellant.

Ronald F. Chalker, for appellees.

2. Remaining enumerations of error are not likely to recur at the retrial of this case and, therefore, they need not be addressed.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.


text:
    76289.
    WAITE v. HARVEY.
    (370 SE2d 34)
   Pope, Judge.

Plaintiff brings this appeal from the order of the trial court striking his medical malpractice complaint against defendant as sanction for wilful failure to respond to defendant’s discovery requests and the court’s previous order compelling the plaintiff to respond and pay attorney fees. The record shows defendant filed and properly served interrogatories and requests to produce documents on December 9, 1986. On June 19, 1987 defendant’s attorneys wrote plaintiff’s attorneys demanding a response to the earlier discovery, in compliance with Rule 6.4(B) of the Uniform State Court Rules. When plaintiff again failed to respond, defendant filed a motion to compel, which was granted August 28,1987. When plaintiff failed to comply with the court’s order, defendant filed a motion for sanctions requesting that plaintiff’s complaint be stricken. After a hearing on the motion for sanctions, the court entered an order on September 29, 1987 in which it found, inter alia, “despite his counsel’s repeated requests that he do so, plaintiff failed to provide information sufficient to answer and respond to defendant’s interrogatories and request for production of documents. ...” The court concluded plaintiff’s actions constituted wilful misconduct, ordered the complaint dismissed and assessed costs and $200 attorney fees against plaintiff.

Within thirty days after the order was entered, plaintiff filed a notice of appearance of new counsel. Plaintiff filed a motion for rehearing on defendant’s motion for sanctions supported by plaintiff’s affidavit attesting that in the first quarter of 1987 he received a copy of defendant’s discovery from his attorneys, provided his attorneys with handwritten responses to the interrogatories, met with a paralegal employed by his attorneys to prepare responses to defendant’s discovery requests, made himself available to his attorneys and never failed to provide his attorneys with any information sought by them. He claims he thought his attorneys had answered the discovery and he did not know the defendant’s discovery had not been answered or that the court had issued an order compelling him to respond and pay attorney fees. Plaintiff also filed a motion, pursuant to OCGA § 5-6-39, for extension of time for filing a notice of appeal from the order dismissing the complaint. Said Code section permits the trial judge to grant such a motion without prior notice to the opposing party. However, the record in this case indicates the motion was neither granted nor denied. Without obtaining a ruling on the motion for extension of time, plaintiff filed his notice of appeal.

No transcript or other record of the hearing on defendant’s motion for sanctions is contained within the record on appeal. Therefore, we must uphold the trial court’s findings of fact. Failure to cooperate with counsel so that discovery can be made is wilful misconduct sufficient to support the imposition of the sanction of dismissal. See Phillips v. Peachtree Housing, 138 Ga. App. 596 (3) (226 SE2d 616) (1976). “The result is the same even though the party may claim that it was counsel who failed to communicate with him. Carter v. Merrill Lynch &c. Smith, 130 Ga. App. 522 (3) (203 SE2d 766) (1974).” Thurman v. Unicure, Inc., 151 Ga. App. 880, 882 (261 SE2d 785) (1979). Both Thurman and Carter address the party’s responsibility to take action to see that a response is made to discovery. However, on motion for rehearing, plaintiff offered evidence he had taken action to respond to his attorneys’ requests for information and to see that defendant’s discovery was answered. Although it was not properly authenticated by sworn affidavit, plaintiff attached to his motion documents which appear to be a draft of both an answer to defendant’s interrogatories and a written response to defendant’s request for production of documents. They appear to have been prepared by one of plaintiff’s original attorneys of record and dated “This_day of January, 1987.” Assuming they were properly sworn to by plaintiff, it is possible these responses could have been filed within the thirty days from the date the discovery requests were served, as required by OCGA §§ 9-11-33 and 34, or at some other time prior to the filing of the motion for sanctions.

Decided May 27, 1988.

Gregory E. Bennett, for appellant.

I. Gregory Hodges, Thomas A. Withers, William F. Braziel, Jr., Murl E. Geary, Wendy W. Williamson, for appellee.

We remand this case to the trial court for action on plaintiffs motion for rehearing of defendant’s motion for sanctions. On rehearing, the court may receive testimony or other evidence which plaintiff claims will contradict the evidence presented by his original attorneys at the first hearing. Upon the contradictory evidence, if it is in fact contradictory, the trial court may then base its findings of fact and conclusions of law regarding defendant’s motion for sanctions. Defendant’s prayer for imposition of sanctions pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment reversed and case remanded with instructions.

McMurray, P. J., and Benham, J., concur.


text:
    76319.
    COWLEY v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF WARNER ROBINS et al.
    (370 SE2d 36)
   Benham, Judge.

Appellee First Federal Savings and Loan Association of Warner Robins (First Federal) sued Cowley on his guaranty of a promissory note. The suit was initially filed on October 9, 1986, and Cowley was served on October 14. Cowley obtained First Federal’s consent to three extensions of time to file his responsive pleadings, and as a result the time to answer was extended first to November 27, then to December 8, and finally to December 22, 1986. On that day, Cowley filed an answer and a third-party complaint impleading appellee Blanchard. In response to First Federal’s and Blanchard’s motions, the trial court ordered that Cowley’s pleadings be stricken from the record and that judgments be entered against him for his failure to comply with First Federal’s discovery requests. Cowley appeals the decision. We affirm.

On February 26, 1987, First Federal gave notice that Cowley’s deposition would be taken and certain documents were requested to be produced on March 17, 1987. At the request of Cowley’s counsel and by mutual agreement of counsel, the deposition date was postponed from March 17, and was tentatively scheduled for April 23. That date was postponed at the request of Cowley’s attorney, and May 6, 2:00 p.m., was set as a firm date for the discovery to take place. On that morning, Cowley’s counsel notified First Federal’s counsel that Cowley would not appear for the deposition because he had “boarded an airplane that morning to travel to California to undergo a medical examination.” Counsel’s response was that she intended to go forward with the deposition as scheduled, unless Cowley’s attorney secured a protective order. An emergency hearing was held before the trial court, in which hearing Cowley’s attorney sought a protective order for his client. The trial court granted Cowley’s motion, and ordered that Cowley appear for the taking of his deposition at his attorney’s office on May 20, 1987, at 10:00 a.m. On May 19, appellant’s counsel called First Federal’s attorney to confirm that his client was in better health and would appear for the deposition the next day. However, the next morning Cowley’s counsel said Cowley was confined to bed with neck and head pain and his doctor had requested that his deposition not be taken. In spite of a postponement until 2:00 p.m. that day, appellant did not appear for the discovery as he had been previously ordered. A second protective order was issued after a second emergency hearing, and the trial court ordered Cowley to appear for his deposition on May 22. On that morning, Cowley’s attorney again notified First Federal’s attorney that Cowley was on his sickbed and would not appear, but that the attorney would not again seek a protective order. Counsel for both parties appeared for the taking of the deposition, but Cowley did not appear.

On June 9, 1987, First Federal moved for the imposition of sanctions against Cowley, specifically seeking that the trial court strike Cowley’s responsive pleadings, pursuant to OCGA § 9-11-37 (d). Appellee Blanchard also moved for the imposition of such sanctions against Cowley. Cowley’s response was essentially that his inability to appear for the various scheduled deposition times was due to his medical condition, a “chronic, degenerative cervical disk disease, . . . which rendered him immobile [from May 19, 1987] through and including May 26, 1987. . . .” He also took the position that the attorney representing him at that time did not notify him personally that the May 20 deposition had been rescheduled for May 22, but only attempted to notify appellant at his office. Cowley argues that since he was not present at his office but was ill at home, he was unaware of the new date, and that had he known of it he could have furnished the court with proof of his infirmity. Cowley cited his offer to First Federal’s counsel on June 1 to pay for reasonable expenses incurred due to his failure to appear for the May 22 deposition as proof that his actions were not willful or in conscious disregard of the trial court’s orders. The trial court found otherwise, concluding that Cowley’s failure to appear on May 22 for his deposition “was both a deliberate and willful violation of this court’s order of May 20, 1987”; ordered that appellant’s pleadings be stricken from the record, and entered judgment in favor of First Federal and Blanchard and against Cowley on the complaint and third-party complaint respectively. On appeal, Cowley cites the imposition of those sanctions as error. We affirm.

Decided May 27, 1988.

John F. Doran, Jr., for appellant.

Susan L. Howick, Steven W. Ludwick, Timothy R. Brennan, for appellees.

“ ‘Under the discovery provisions of the Civil Practice Act, the trial judge is granted broad discretion. Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of such discretion in absence of abuse. [Cit.]’ ” Freeman v. Ripley, 177 Ga. App. 522, 523 (339 SE2d 795) (1986). The facts of this case support the trial judge’s decision to impose the sanctions under OCGA § 9-11-37 (d), appellant’s contentions notwithstanding. Appellant’s failure to maintain contact with counsel so that discovery could be made was willful misconduct in and of itself.” Thurman v. Unicure, Inc., 151 Ga. App. 880, 882 (261 SE2d 785) (1979); Phillips v. Peachtree Housing, 138 Ga. App. 596 (3) (226 SE2d 616) (1976). In the absence of the transcript of the hearing on First Federal’s motion for sanctions indicating some other reasons for appellant’s inaction, we decline to reverse the trial court. Nor are we persuaded by appellant’s argument that the motion should not have been granted as to the third-party defendant, Blanchard. The discovery sought by First Federal was relevant to the case as a whole, and Blanchard made the appropriate motion for sanctions when the discovery was not forthcoming, just as First Federal did. “All that is required is a motion, notice and a hearing.” Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981). Those requirements having been satisfied as to all of the parties, the sanctions were properly imposed. We find no abuse of discretion on the part of the trial court.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76504.
    BANKS v. THE STATE.
    (370 SE2d 38)
   Carley, Judge.

After a bench trial, appellant was found guilty of trafficking in cocaine, possession of less than one ounce of marijuana, and felony obstruction of a police officer. He appeals from the judgments of conviction and sentences entered by the trial court on its findings of guilt.

1. Appellant enumerates as error the trial court’s denial of his motion to suppress.

At the hearing on appellant’s motion, the State introduced the following evidence: Appellant arrived at Atlanta’s Hartsfield International Airport as a passenger on a flight from Miami. Miami is a known drug source city. Previous to appellant’s arrival, Atlanta agents of the Federal Drug Enforcement Administration (DEA) had been notified by DEA agents in Miami that a Mr. Brown had purchased, under suspicious circumstances, a one-way ticket from Miami to Raleigh via Atlanta. Brown had paid for the ticket in cash and had listed a Miami hotel as the location of his call-back number. The Atlanta DEA agents called the number given by Brown and discovered that, contrary to Brown’s information, it was not the number of a hotel. Based upon the description of Brown supplied by the DEA agents in Miami, two Atlanta DEA agents approached appellant in a casual manner as he deplaned. The agents displayed their credentials to appellant and identified themselves as police officers. One agent asked if appellant would speak with him, and appellant agreed. The agent then asked to see appellant’s airline ticket, and appellant retrieved the ticket from a small tote bag which he was carrying. The agent testified that the name listed on the ticket was Greg Brown and that there were no luggage claim checks affixed to the ticket. Appellant stated that his name was Greg Brown but he could produce no identification whatsoever. Appellant became very nervous during the conversation and experienced a noticable difficulty in breathing. Appellant stated that he was without identification because he had lost his wallet. Appellant then spontaneously offered conflicting explanations concerning his purchase of the ticket. Without any mention by the agents of the tote bag, appellant suddenly stated that it did not belong to him but belonged to a Jamaican woman who had been seated a few rows in front of him on the flight from Miami. As a result of appellant’s suspicious behavior, the two agents asked appellant to accompany them for further discussion of the situation. Appellant did not indicate that he wished to discontinue the conversation and started to accompany the two agents. However, he suddenly turned and bolted into a run. He was then seized and placed under arrest. In a subsequent search of appellant’s person and the tote bag which was conducted pursuant to his arrest, the agents discovered a small quantity of marijuana and over 250 grams of cocaine.

Appellant urges that his motion to suppress the evidence seized during the search should have been granted on the ground that there existed no probable cause for his arrest by the agents. “Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. [Cits.] . . . [F]light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search. [Cits.]” Cook v. State, 136 Ga. App. 908, 909 (1) (222 SE2d 656) (1975). Appellant’s flight from the agents, in conjunction with the existence of the numerous other suspicious circumstances to which the arresting agents testified (see generally State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981)), provided sufficient probable cause for appellant’s arrest and the search pursuant to that arrest was, therefore, lawful. See Rasnake v. State, 164 Ga. App. 765 (1) (298 SE2d 42) (1982). Accordingly, the trial court did not err in denying appellant’s motion to suppress.

2. Appellant enumerates the general grounds. With respect to both of his convictions for possession of contraband, appellant’s enumeration of the general grounds is predicated primarily upon the hypothetical exclusion from the record of such evidence as would have resulted from the grant of his motion to suppress. Our holding in Division 1 sufficiently disposes of such contentions. The contraband was not erroneously admitted into evidence and the proof of appellant’s unlawful possession thereof was sufficient to meet the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Appellant’s conviction for obstruction of a police officer was based upon an incident which occurred after his arrest. As the agents were making an inventory of the items seized in their search, appellant grabbed a piece of evidence and placed it in his mouth. By doing so, appellant’s apparent purpose was to destroy the evidence. When the agents attempted to prevent the destruction of the evidence, appellant attacked them. He swung at the agents with the metal chair to which he had been handcuffed. Appellant urges that, on this evidence, his conviction for obstruction of a police officer would not be authorized because, in using the chair as a weapon, he was merely acting in self-defense against the agents’ unprovoked attack which was not in the “lawful discharge of [their] official duties.” OCGA § 16-10-24 (b). However, the evidence authorized a finding that the agents’ actions did not constitute an unprovoked attack upon the appellant, but an attempt by them to retrieve and preserve the evidence which appellant was attempting to destroy. The retrieval and preservation of evidence being an act “in the lawful discharge of [the agents’] duties,” appellant’s attack upon them authorized a finding that he had violated OCGA § 16-10-24 (b).

Our review of the entire record reveals that, based upon the evidence produced at trial, a rational trior of fact could reasonably have found appellant guilty beyond a reasonable doubt of all three of the crimes of which he was convicted. Jackson v. Virginia, supra.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.

Decided May 27, 1988.

Lawrence L. Aiken, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.


text:
    75843.
    ATLANTA CARE CONVALESCENCE CENTER v. TRAVELERS INSURANCE COMPANY et al.
    (370 SE2d 40)
   Beasley, Judge.

We granted employer Atlanta Care Convalescence Center discretionary appeal from the lower court’s affirmance of an award of the State Board of Workers’ Compensation which adopted the ALJ’s award in favor of claimant Vanatta, and of Travelers insofar as concerns this appeal.

On February 22,1985, Vanatta fell on wet steps as she attempted to enter the employer’s building to begin the work day, injuring her neck, back, and right wrist. She had also had two prior mishaps in 1982, not work related, which resulted in injury to her right wrist. On November 4, 1985, she again injured her neck, back, and wrist in the workplace while trying to move a loaded file cabinet. Her right hand hit hard against the filing cabinet when she lost her balance with her weight falling against the hand jamming the wrist. At the time of the February 22 injury the employer did not carry workers’ compensation coverage. It paid Vanatta full wages throughout the disability period following the first work injury. Medical expenses were paid by the group health carrier. The employer secured workers’ compensation insurance with The Travelers Insurance Company prior to the November 4 incident with the file cabinet. The insurer accepted claimant’s November 4 neck and back injuries as compensable but refused medical or income benefits for claimant’s wrist injury, initially upon the basis that no mention of the wrist injury was reported on claimant’s WC-1. Following the incident on February 22, Vanatta worked regularly until the November 4 accident but thereafter lost time from work and underwent wrist surgery.

The ALJ found that the February fall aggravated a pre-existing condition in claimant’s wrist, that “[t]he incident on November 4, 1985, while probably increasing the pain in claimant’s wrist, as well as her neck and back, was not shown except by inference to be an aggravation of the wrist injury; the preponderance of the evidence pointing to the February 22nd fall as being the principal aggravation,” and thus, “that on that date [November 4] claimant suffered an injury by accident to her right wrist and her subsequent disability following surgery . . . constituted a change in condition from the original accident on February 22, 1985.”

The ALJ ordered, among other things, that the employer, with no coverage, pay all the medical expenses necessary to effect a cure or give relief from the injuries of February 22 and November 4, 1985, relating to treatment for the claimant causally related to the right wrist injury on February 22 and any future medical treatment required. The ALJ further ordered that the employer pay a $350 penalty to the Board and a penalty of $1,000 in attorney fees.

1. The employer contends that the lower court erred as a matter of law by affirming the finding that the November incident constituted a change in condition rather than a new injury and thereby concluding that the employer alone was responsible for the medical bills incurred. They were largely for surgeries on claimant’s wrist following the November mishap.

Where a claimant sustains a second accident as the result of a specific job-related incident which aggravates a pre-existing condition resulting from a prior accident, the second accident which aggravated the pre-existing condition is a new injury if the second accident at least partially precipitated the claimant’s disability. It is a new injury whether the claimant is immediately disabled or if he continues to work after the second accident and his condition gradually worsens until he is forced to cease his employment. Central State Hosp. v. James, 147 Ga. App. 308, 309 (1) (b) (248 SE2d 678) (1978). See also Maryland Cas. Co. v. Walls, 184 Ga. App. 267, 268 (1) (361 SE2d 253) (1987), and Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 156 (1) (338 SE2d 742) (1985), a physical precedent. It is not a question of “principal aggravation.”

This is precisely the situation here. The ALJ’s findings as supported by the evidence mandate the legal conclusion that claimant suffered a new injury on November 4 and not a change in condition. Therefore the ALJ erroneously allocated financial responsibility to the employer apart from the insurer for medical bills for treatment of Vanatta’s wrist following the November incident.

Thus, the lower court erred in affirming the Board’s adoption of the ALJ’s award solely against the employer and that portion of the award is reversed and the case remanded to the Board for action accordingly.

2. The employer also contends that the lower court erred in affirming the Board award as to the civil penalty of $350 because the employer maintains that claimant’s request for a hearing did not contain notice that penalties were being sought and that the ALJ failed to notify it that this issue would be considered at the hearing, so that assessment violated due process. We address this issue because the imposition of a penalty under OCGA § 34-9-18 (a) is a separate question from the employer’s liability for benefits.

Decided May 31, 1988.

Jeffrey E. Hickcox, Thomas C. Holcomb, for appellant.

Charles H. Lumpkin, Jr., E. Scott Slappey, for appellee.

The record supports the employer’s contentions in this regard. Moreover, appellees do not dispute the lack of notice. Accordingly, the lower court erred in affirming the award of civil penalties. Atlanta Janitorial Svc. v. Jackson, 182 Ga. App. 155, 157 (1) (355 SE2d 93) (1987). We therefore reverse the assessment of civil penalties, OCGA § 34-9-18 (a), and remand the issue to the Board for proper procedural resolution. Atlanta Janitorial Svc. v. Jackson, supra at 157 (1).

Judgment affirmed in part and reversed in part and case remanded.

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