author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A93A1589.
    SMITH v. THE STATE.
    (440 SE2d 44)
   Andrews, Judge.

Smith, convicted of simple battery, a misdemeanor, questions whether the trial court erred in failing to appoint counsel to represent him, to inquire as to his indigency, to adequately advise him of the perils of proceeding pro se, and to make a determination as to his competency to stand trial.

Smith was charged by accusation with one count of criminal trespass and one count of simple battery and pled not guilty. The court subsequently entered an order noting that Smith had indicated at arraignment that he would hire private counsel. The accusation was later amended by adding one count of criminal trespass. Prior to trial, Smith wrote a letter to the court stating that this incident had caused him physical and mental impairment and was partly the cause of his becoming unemployed; that although this had resulted in his indigence, his request for representation by the public defender had been denied on grounds that he did not qualify monetarily; but that he had been unable to employ counsel. He attached documentation in support of his argument that he was indigent, and he asked the court for advice.

After being rescheduled several times, the case came on for trial before a jury. Smith defended himself. The jury found him not guilty of criminal trespass and guilty of simple battery. The court imposed a fine of $360 and a 12-month probated sentence conditioned upon, among other things, payment of the fine and performance of community service.

1. Smith contends that the court erred in failing to make a determination upon the record of whether he was indigent and therefore entitled to the appointment of counsel to represent him, in the absence of knowing and intelligent waiver of that right; he states that he did not waive his right to counsel, and he complains of the court’s failure to advise him of the dangers of proceeding without counsel. See Fernandez v. State, 171 Ga. App. 290 (319 SE2d 503) (1984).

A defendant in a misdemeanor criminal prosecution is entitled to appointed counsel only where the defendant is sentenced to actual imprisonment. Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982). As said in Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984), in which the habeas corpus petitioner had been sentenced to 12 months in prison for a misdemeanor, “[w]hen an accused is placed on trial for any offense, whether felony or misdemeanor, for which he faces imprisonment, the constitutional guarantee of right to counsel attaches. Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972).” Where, as here, the defendant was fined and given a conditional, probated sentence, he was not entitled to court-appointed counsel. Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992); but see Lawal v. State, 201 Ga. App. 797 (1) (412 SE2d 864) (1991) (physical precedent only); Lowrance v. State, 183 Ga. App. 421 (1) (359 SE2d 196) (1987) (physical precedent only).

This does not, however, complete the necessary inquiry. The record is devoid of any indication that Smith’s rights to retained counsel, at a minimum, were adequately explained to him or were intelligently waived by him.

Georgia’s Constitution provides both the right to defend one’s cause “either in person or by an attorney” and that a person charged with an offense against the state “shall have the privilege and benefit of counsel.” Ga. Const. 1983, Art. I, Sec. I, Pars. XII, XIV.

The dissent hinges its contention on the premise that, since Smith was not sentenced to prison on his misdemeanor conviction of simple battery, he was not entitled to court-appointed counsel. Capelli, supra. This emphasis on the source of payment of counsel, however, overlooks the fact that Smith at no point in the record expressed anything other than his desire to have counsel. Smith originally intended to retain counsel, which certainly was his constitutional privilege whatever the nature of the charge, as is reflected in the court’s December 30, 1992 order setting the case for trial on the January 22, 1993 calendar. “A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. Delk v. State, 100 Ga. 61 (27 SE 152) (1896); Long v. State, 119 Ga. App. 82 (166 SE2d 365) (1969).” Burney v. State, 244 Ga. 33, 35 (1) (257 SE2d 543) (1979). There can be no contention that Smith at any point opted, with full knowledge of all his rights, to exercise his right to self-representation. Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981); Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987).

Apparently having been unable to retain counsel due to the loss of his job, Smith wrote to the court in a letter dated January 4, 1993 and stamped received by the court on January 14, and provided the court with financial evidence concerning his indigency. Therefore, at this point, some inquiry by the court was required to determine whether or not Smith was indigent under OCGA § 17-12-4 (a). Lawal, supra; Lowrance, supra; Butler v. State, 198 Ga. App. 217, 219 (lb) (401 SE2d 43) (1990) (whole court case, with three judges concurring, physical precedent). See Houston v. State, 205 Ga. App. 703 (423 SE2d 431) (1992).

There is no indication of such dilatory tactics by Smith which would have amounted to a waiver of his right to proceed with retained counsel if he was not indigent. Staples v. State, 209 Ga. App. 802, 804 (434 SE2d 757) (1993); Houston, supra; Fernandez v. State, 171 Ga. App. 290, 293 (319 SE2d 503) (1984).

This case is on all fours with and controlled by Kirkland v. State, 202 Ga. App. 356, 357 (414 SE2d 502) (1991) and must be reversed.

2. We need not consider the remaining enumerations.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur. Beasley, P. J., dissents.

Beasley, Presiding Judge,

dissenting.

The record in this case does not include a transcript of the trial (the trial court advises that there was not one; we do not know if the trial was recorded) or narrative of the proceedings pursuant to OCGA § 5-6-41 (d). Nevertheless, it shows that defendant sought but was refused a public defender, because he did not qualify as indigent. It also shows that the court did not appoint an attorney or order the services of the public defender, either because the court considered defendant not qualified as indigent or because the court had decided to limit itself to non-incarceration as punishment if defendant was convicted.

The record unequivocally shows that defendant did not want to represent himself. At arraignment almost two months before the trial actually took place, at which arraignment he was advised of the trial date a month later, appellant indicated that he would hire private counsel. Two weeks after arraignment, appellant sought the appointment of counsel from the court, the public defender’s office having rejected his request for assistance. He maintained that he wanted counsel but was indigent and would remain financially unable to retain counsel. The trial date was reset three times and the trial was ultimately held a month from the original trial date. Appellant appeared pro se on each occasion, he never changed his position that he could not afford counsel, and he never elected to represent himself. He continues to contend, on appeal, that he was entitled to appointed counsel, that he did not have counsel because of financial circumstances beyond his control, and that he “was forced to proceed pro-se at the trial.”

Appellant proceeds solely on the basis of his Sixth Amendment right to counsel and raises no independent state constitutional or statutory ground. See State v. Camp, 175 Ga. App. 591, 592 (1) (333 SE2d 896) (1985); Daniel v. State, 199 Ga. App. 180, 182 (404 SE2d 466) (1991) (Beasley, J., concurring specially). The cases he cites rely, in regard to this question, on the Sixth and Fourteenth Amendments and rulings bottomed thereon.

As recognized by the majority, appellant was not entitled to appointed counsel because he was not sentenced to imprisonment; he was required to pay a $300 fine and certain costs over a period of 12 months’ probation, and to perform 25 hours of community service. Even though lack of representation may affect the outcome of a trial, under the Sixth and Fourteenth Amendments “[a] defendant in a misdemeanor criminal prosecution is entitled to counsel [provided by the State] only where the defendant is sentenced to actual imprisonment. Argersinger[, supra]; Scott v. Illinois, 440 U. S. 367 (99 SC 1158, 59 LE2d 383) (1979); [cits.].” (Emphasis deleted.) Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982). The limitation was made because, in the words of Argersinger, supra at 40, appellant’s “liberty [was not] in jeopardy.” The Court differentiated in Scott, supra at 373, on the rationale that “actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment.”

The majority rules that the trial court deprived appellant of an adequate explanation of his right to retain counsel and an express finding that he intelligently waived this right. I agree that this is required whenever a defendant has a choice between self-representation and representation by counsel, either retained or appointed. As to the latter, see Faretta v. California, 422 U. S. 806, 835 (95 SC 2525, 45 LE2d 562) (1975): “[A] defendant . . . should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U. S., at 279.”

However, in this case, there was no reason to advise Smith that he had a right to hire counsel and assure that he waived that right before proceeding, such that failure to do so constituted reversible error. First, Smith all along wanted to invoke that right but showed that he could not do so because of his limited means. He was in that class of citizens which cannot reasonably hire counsel, as a practical matter, and is not entitled to appointed counsel, as a legal matter. Second, the concept of waiver means that there is a choice. Here there was no choice. Defendant was forced by his circumstances, in his judgment, to represent himself; the trial court was forced by defendant’s non-representation, his repeated appearance without counsel, and his ultimate self-representation to limit the sentence to non-imprisonment terms. The court did not sentence defendant to incarceration, which is an option if defendant has chosen self-representation voluntarily and with an understanding of the consequences or has relinquished the choice through lack of diligence in obtaining counsel. Burnett v. State, 182 Ga. App. 539 (1) (356 SE2d 231) (1987).

But as noted in Burnett at 541, a warning of the danger of proceeding pro se is required only where there is a voluntary invocation of the right to self-representation, citing Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981). Here it was not voluntary, but imposed. The history of the constitutional right to self-representation, which is a personal right, is traced in Faretta v. California, supra. There it was held that a state cannot force counsel on an indigent defendant who voluntarily and intelligently elects to represent himself. Smith, on the other hand, did not choose to represent himself.

The majority’s requirement of an inquiry as to a knowing and intelligent waiver in this case, Faretta, supra at 835, which waiver of course would have to be voluntary as well, means that where retained counsel is not waived but cannot be afforded by defendant, there can be no trial even if imprisonment will not result from a conviction. The only alternative is to appoint counsel in every case where defendant does not qualify for the public defender, is unable to retain counsel, and does not want to represent himself, even if defendant does not actually face imprisonment.

Decided December 3, 1993

Reconsideration denied December 20, 1993

Williams & Associates, Rita T. Williams, for appellant.

Winston J. Smith, pro se.

Ralph T. Bowden, Jr., Solicitor, Jacqueline R. Seabolt, Assistant Solicitor, for appellee.

Kirkland v. State, 202 Ga. App. 356 (414 SE2d 502) (1991), should not control, for here it is clear that defendant did not choose to represent himself but was compelled to do so after he was unable to hire counsel.

The conviction should not be reversed on this basis, just as the misdemeanor convictions in Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992), where appellants were not sentenced to imprisonment, were not reversed.

I must also point out that, with respect to the reference to Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984), it is not when there is a legal possibility of imprisonment in a misdemeanor case that a Sixth Amendment right to counsel arises. It is only when a loss of liberty actually results. Johnston v. State, 236 Ga. 370, 371 (3) (223 SE2d 808) (1976). Jones, like Clarke in Clarke v. Zant, supra, was sentenced to incarceration. In this regard, the single-judge opinions in the misdemeanor cases of Lawal v. State, 201 Ga. App. 797 (1) (412 SE2d 864) (1991) and Lowrance v. State, 183 Ga. App. 421 (359 SE2d 196) (1987), are not authority. Appellant in this case did not suffer a loss of liberty.

       “[Ejvery judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.” Argersinger v. Hamlin, 407 U. S. 25, 40 (92 SC 2006, 32 LE2d 530) (1972).


source: Caselaw Access Project

author: Beasley, Presiding Judge. Cooper, Judge, Blackburn, Judge,

license: Public Domain

text:
    A93A1670.
    STEVENSON v. WINN-DIXIE ATLANTA, INC.
    (440 SE2d 465)
   Beasley, Presiding Judge.

Alleging that she and her four minor children became violently ill as a result of eating unwholesome ice cream sold by Winn-Dixie, Stevenson filed this complaint alleging both a tort and a violation of the Fair Business Practices Act, OCGA § 10-1-390 et seq. After discovery, the parties filed cross-motions for summary judgment. Stevenson appeals from the denial of her motion and the grant of Winn-Dixie’s motion.

Viewed in the light most favorable to Stevenson, the evidence would authorize the following as facts: Stevenson and her four children, ages thirteen, fifteen, nine and two had been visiting relatives in Mississippi. They ate a spaghetti dinner and returned on December 1, 1991, to Atlanta, consuming soft drinks during the trip. Upon arrival at approximately 7:00 p.m., Stevenson purchased a half gallon of Winn-Dixie’s Superbrand vanilla ice cream. Within the hour, the entire half gallon was eaten by Stevenson and the children. The ice cream tasted “funny” or “tangy” but was not malodorous.

The next day, Stevenson and the children began to experience symptoms of intestinal distress, including fever, nausea, vomiting, and diarrhea. This continued over several days, during which time they consumed only fruit juice. Plaintiff received no report that anyone from her family in Mississippi reported ill effects from the food consumed there.

The physician who treated them four days after consumption diagnosed gastroenteritis. He attributed it to food poisoning because the plaintiff had told him they had eaten spoiled ice cream with an expiration date of May 1989 or 1990 and nothing else over a certain period of time. The physician’s record and his memory did not indicate that he knew when they had eaten it. He did not determine the cause of the illness but rather treated the symptoms, which were “mild.” He discounted salmonella. He could reach no opinion regarding cause, other than what the patient told him; etiology was “unknown.” It could have been a cause other than ice cream even if it was spoiled. The physician indicated it is possible that the cause of illness was a virus. No tests were conducted by him on the patients, to ascertain cause, and of course no tests could be conducted on the ice cream by plaintiff, to ascertain condition, because it was gone.

There is evidence, unrefuted by any competent evidence, that the ice cream was placed in the carton by the manufacturer on November 13, 1991, less than three weeks before its purchase, and that it had an expiration date of March 13, 1992, the custom and practice of the manufacturer being a four-month-for-sale shelf life. The carton design itself was not used by the manufacturer before March 27, 1991. This evidence is based on the identification number appearing on the side of the carton and is not refuted by the illegibility of the expiration date stamp, inasmuch as the carton was pulled from plaintiff’s garbage four-and-one-half days after the ice cream was bought and consumed and three-and-one-half days after the empty carton was placed in the garbage. (This positive evidence renders irrelevant the evidence of other products being offered for sale after their expiration dates.)

The batch of ice cream from which plaintiff’s came was laboratory-tested for bacteria count, among other things, before being sold. It met the standards prescribed by the Federal Department of Agriculture, the State of South Carolina (where it was manufactured), and the State of Georgia (where it was sold). The manufacturer received no complaints about that batch of ice cream except that of plaintiff.

1. OCGA § 51-1-23 provides: “Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.” To establish a claim, there must be evidence that the food was unwholesome. A mere showing that a person became sick subsequent to eating food is insufficient. Castleberry’s Food Co. v. Smith, 205 Ga. App. 859 (424 SE2d 33) (1992); Wilson v. Mars, Inc., 121 Ga. App. 790, 791 (2) (175 SE2d 924) (1970).

Plaintiff’s theories are that the ice cream was stale, i.e., beyond its expiration date, which theory is excluded by the evidence, or tainted, of which there is only contrary evidence (batch test) other than the fact of sickness beginning the morning after the evening consumption. See Frazier v. Ga. R. &c. Co., 108 Ga. 807 (1) (33 SE 996) (1899). Plaintiff’s third and last suggestion is that the ice cream became contaminated after it left the plant in that it melted and then was refrozen and sold. There is no evidence whatsoever that the ice cream’s appearance, consistency, volume, or color was other than normal or that the carton was misshapen, indicated a leak, or bore any physical indicators that its contents had melted and remained in a melted condition before refreezing so as to become contaminated in the process. This theory is pure speculation.

The evidentiary rule denominated res ipsa loquitur does not apply. The nature of the incident itself is not sufficient to indicate that it was brought about by the negligence of Winn-Dixie, the manufacturer and seller of the product. See Great Atlantic &c. Tea Co. v. Dupee, 71 Ga. App. 148, 151 (1) (30 SE2d 365) (1944). Given the evidence presented, the illness is not a condition which would not have materialized and could not have materialized but for defendant’s negligence in manufacturing or presenting the ice cream for sale. Id. See U. S. Fidelity &c. Co. v. J. I. Case Co., 209 Ga. App. 61, 64 (3) (432 SE2d 654) (1993).

Plaintiff’s evidence is circumstantial, and she has not excluded every other reasonable hypothesis as to cause save unfitness of the ice cream for human consumption. Payton v. Lee, 88 Ga. App. 422, 425 (77 SE2d 77) (1953); Castleberry’s Food Co. v. Smith, supra at 861 (2). The amount consumed, the speed at which it was consumed, a virus, or some other unknown source, is just as reasonable a hypothesis. Illness alone cannot establish proximate cause. Castleberry’s Food Co., supra; Wilson, supra. Circumstantial evidence is not probative against positive and uncontradicted evidence to the contrary. Frazier Assoc. &c. v. Dabbs & Stewart, 173 Ga. App. 304 (325 SE2d 914) (1985).

Consequently, the record establishes that plaintiff cannot prevail in her cause of action based on OCGA § 51-1-23.

2. This same evidence is sufficient to overcome the private claim pursuant to OCGA § 10-1-399 (a) for a violation of the Fair Business Practices Act. This claim was predicated solely upon the allegation that Stevenson had been injured because of the unfair and deceptive practice of selling foodstuffs after the expiration date. There being no competent evidence that she did in fact purchase consumer goods after the expiration date, it cannot be said that Stevenson has been harmed as a result of deceptive acts or practices in the consumer market. Zeeman v. Black, 156 Ga. App. 82, 86 (273 SE2d 910) (1980). Compare OCGA § 10-1-393 (b) (11).

The trial court correctly granted summary judgment to WinnDixie as to both the claim under the Fair Business Practices Act and the tort claim. Likewise, it correctly denied plaintiff’s motion.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. Cooper and Blackburn, JJ., concur in part and dissent in part.

Cooper, Judge,

concurring in part and dissenting in part.

I dissent. The affirmance of summary judgment with respect to appellant’s common-law tort action for food poisoning usurps the province of the jury. Venerable authority exists applying res ipsa loquitur in the context of food poisoning.

Viewed in the light most favorable to appellant, the evidence would authorize the following facts: Appellant and her family had been visiting relatives in Laurel, Mississippi. They ate a spaghetti dinner before the return trip to Atlanta. They consumed only soft drinks during the trip. Arriving in Atlanta at approximately 7:00 p.m., appellant purchased a half gallon of Winn Dixie’s Superbrand vanilla ice cream, which was on sale. Within the hour, the entire half gallon had been consumed by appellant and her children in one sitting. There is evidence that the ice cream tasted “funny” or “tangy” but was not malodorous. The next day, appellant and her family began to experience all the customary symptoms of severe intestinal distress, including fever, nausea, vomiting, and diarrhea. This continued over several days, during which time the plaintiffs consumed only fruit juice. Mrs. Stevenson’s doctor diagnosed each as suffering from gastroenteritis as a result of food poisoning. Neither appellant nor any of the children was otherwise suffering from a cold or flu. No one from appellant’s family in Mississippi reported ill effects from the food consumed there.

OCGA § 51-1-23 provides: “Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in dam-

ages for such injury.” In order to establish a claim under this Code section, there must be evidence that the food was unwholesome. In this regard, a mere showing that a person became sick subsequent to eating food is insufficient. Castleberry’s Food Co. v. Smith, 205 Ga. App. 859 (424 SE2d 33) (1992); Wilson v. Mars, Inc., 121 Ga. App. 790, 791 (2) (175 SE2d 924) (1970). Here, however, the plaintiff showed that she and her family were in good health, that they had eaten nothing but the food suspected to be unwholesome, and within a few hours of each other, all five became suddenly and violently ill. This is a prima facie case of unwholesomeness, authorizing the jury to apply the maxim res ipsa loquitur. McPherson v. Capuano &c., 31 Ga. App. 82, 83 (3) (121 SE 580) (1923). “Where an event is unusual and extraordinary in its nature, and the peculiar character of the incident is sufficient within itself to indicate that it must have been brought about by the negligence of someone, and where the most reasonable and probable inference which can be rationally drawn from the happening is that it would not and could not have taken place had not the person charged with negligence been guilty of the particular acts or omissions set forth by the plaintiff as constituting the actual cause, the jury may apply the rule of evidence known as the doctrine of res ipsa loquitur in determining whether or not the incident or event must have been thus occasioned, and if the jury should decide that it had been thus brought about, and that such causal acts or omissions on the part of the defendant constituted negligence, then the plaintiff would be entitled to recover. [Cits.]” Great Atlantic &c. Tea Co. v. Dupee, 71 Ga. App. 148, 151 (1) (30 SE2d 365) (1944). See also Burns v. Ralston Purina Co., 210 Ga. 82 (77 SE2d 739) (1953); Copeland v. Curtis, 36 Ga. App. 255 (1) (136 SE 324) (1926). This permissive evidentiary inference as to causation of an unexplained and unusual event is also described by the maxim “post hoc, ergo propter hoc.” See Armour &c. v. Gulley, 61 Ga. App. 414, 419 (6 SE2d 165) (1939). Contrary to appellee’s contention below, the absence of direct medical testimony identifying the ice cream as the toxin is not fatal to appellant’s case. “[T]he jury [would be] authorized to conclude that [appellant and her family] knew better than anyone else what caused their sickness, and that their testimony, together with the surrounding facts and circumstances made a prima facie case. ‘Whether a person was injured, and the extent of his injury and consequent suffering, is entirely a question for the jury; and where [as here] [s]he testified that [s]he was injured and suffered, the jury can accept and credit [her] testimony based on [her] knowledge, in preference to the evidence of “a whole college of physicians,” that [s]he was not injured.’ [Cits.]” Great Atlantic &c. Tea Co. v. Dupee, supra at 152-153. Compare Payton v. Lee, 88 Ga. App. 422 (77 SE2d 77) (1953) (doctrine of res ipsa loquitur inapplicable to authorize a verdict for plaintiff where the uncontradicted medical testimony showed that a virus, then epidemic in Elberton, Georgia, caused the same symptoms as accompany food poisoning); Castleberry’s Food Co. v. Smith, supra at 862 (2) (verdict for plaintiff unauthorized where the uncontradicted medical evidence showed that the type of food poisoning alleged to have occurred took two to six hours to manifest itself and the symptoms the plaintiff suffered within thirty minutes of eating supposedly tainted canned food were consistent with a hypoglycemic condition related to the plaintiff’s diabetes). It is the prerogative of the jury “ ‘to say in the first instance whether the evidence adduced to raise the inference of fact, — that an extraordinary and unexplained casualty authorizes an inference that the defendant was negligent, — is sufficient or insufficient for the purpose.’ [Cit.]” Great Atlantic &c. Tea Co. v. Dupee, supra at 152. The direct evidence that the vanilla ice cream was “tangy” and “funny” tasting, in conjunction with the surrounding circumstances which reasonably tend to negative the inference of some other cause for the sudden onset of violent illness, would authorize a verdict in favor of plaintiffs. The trial court erred in granting summary judgment as to that count of the complaint alleging a tort action under OCGA § 51-1-23. McPherson v. Capuano &c., supra at 84 (4). While I fully concur that appellant has adduced no competent evidence of a violation of the Fair Business Practices Act, I respectfully dissent from the affirmance of summary judgment as to appellant’s common-law tort action.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur fully with Judge Cooper’s opinion concurring in part and dissenting in part. I write separately merely to address the majority opinion’s application of Great Atlantic &c. Tea Co. v. Dupee, 71 Ga. App. 148 (30 SE2d 365) (1944), to support its position that res ipsa loquitur does not apply in the instant case. A careful reading of Dupee actually supports the application of that doctrine to this case. In Dupee we state that “[t]he contention of the plaintiff in error that the doctrine of res ipsa loquitur cannot apply unless the circumstances are sufficient to exclude every other reasonable hypothesis as to the cause of the injury alleged to have been sustained, save the alleged negligence of the defendant, is met under the rule stated. ‘Just as in civil cases facts are proved by a mere preponderance of evidence, so in the application of this doctrine, if in the opinion of the jury the most reasonable and most probable inference which can be drawn from the nature and character of such an extraordinary event is that it would not and could not have happened had not the defendant been guilty of the particular conduct charged, then there has been an exclusion in their minds of every other reasonable hypothesis, not by evidence, but by virtue of the peculiar nature and character of the event speaking for itself.’ [Cit.]” Dupee, 71 Ga. App. 151-152.

Decided December 3, 1993

Reconsideration denied December 20, 1993

S. Robert Hahn, for appellant.

Fain, Major & Wiley, Gene A. Major, John K. Miles, Jr., for appellee.


author: McMurray, Presiding Judge. Beasley, Presiding Judge, Blackburn, Judge,

text:
    A93A1695.
    DOWLING v. LOPEZ.
    (440 SE2d 205)
   McMurray, Presiding Judge.

On April 24, 1988, Carla Kiser (“the decedent”) died of metastatic carcinoma and was survived by her two-year-old child, Brandis Swails. On February 6, 1989, Viola Dowling (plaintiff) was appointed executrix of the decedent’s estate and on January 4, 1991, she filed a medical malpractice action on behalf of the estate and as next friend of Brandis Swails, alleging the decedent endured unnecessary pain and suffering and died prematurely as a result of misdiagnosis by the decedent’s physician, Frank Lopez (defendant). Defendant denied the material allegations of the complaint and moved for summary judgment, arguing that the estate’s survival action is barred by the two-year statute of limitation and that the minor child’s wrongful death claim cannot stand because any failure in diagnosing the decedent’s cancer was not the proximate cause of her death.

The undisputed evidence reveals that defendant is a physician specializing in diseases of the stomach and intestines; that defendant began treating the decedent on November 19, 1987, for severe abdominal pain and that defendant concluded the decedent had “ileocolitis” or Crohn’s disease, an inflammation of the bowels. It is also undisputed that the decedent was under defendant’s care until February 7, 1988; that defendant noted “a sausage-shaped . . .” mass in the decedent’s lower abdomen during physical examinations on December 4, 11, 15, 21 and 28, 1987, and that the decedent was hospitalized on three separate occasions while under defendant’s care for physical complications he attributed to Crohn’s disease.

On February 22, 1988, a team of surgeons discovered that the decedent had terminal cancer which originated in her bowels. The decedent died on April 24, 1988.

This appeal followed an order granting defendant’s motion for summary judgment. Held:

1. Plaintiff contends the trial court erred in granting summary judgment as to the estate’s survival action, arguing the two-year statute of limitation prescribed in OCGA § 9-3-71 (a) tolled pursuant to OCGA § 9-3-90 because the decedent was mentally incapacitated after the alleged malpractice. Plaintiff apparently reasons the decedent did not regain capacity until plaintiff’s appointment as executrix of the estate on February 6, 1989, and, as a consequence filing of the survival action on January 4, 1991, preceded expiration of the statute of limitation on February 6, 1991. This contention is without merit.

Assuming, without deciding, the decedent was mentally incapacitated after the alleged malpractice, the tolling provision of OCGA § 9-3-90 during periods of legal incapacity does not apply in actions for medical malpractice. OCGA § 9-3-73 (b); Kumar v. Hall, 262 Ga. 639, 640 (1) (423 SE2d 653). Further, assuming the statute of limitation began upon discovery of the alleged misdiagnosis by defendant on February 22, 1988, see Bryant v. Crider, 209 Ga. App. 623 (3) (434 SE2d 161), the statute of limitation as to the survival action expired on December 6, 1990, two years after the alleged medical malpractice plus 288 days allowed by tolling of the statute of limitation between the decedent’s death on April 24, 1988, and appointment of the executrix of the decedent’s estate on February 6, 1989. OCGA § 9-3-92. Notwithstanding, plaintiff argues that OCGA § 53-7-92 tolled the statute of limitation for an additional six months after her appointment as executrix of the decedent’s estate, thus extending the time for filing the survival action beyond January 4, 1991. This argument is without merit. OCGA § 53-7-92 does not toll the statute of limitation for survival actions accruing at or before the decedent’s death. This Code section tolls the statute of limitation for the commencement of actions against the estate within six months after appointment of an administrator of the estate. Deller v. Smith, 250 Ga. 157, 158 (1b), 160, 162 (296 SE2d 49); Cannon v. Tant, 229 Ga. 771, 772 (1) (195 SE2d 15).

2. Next, plaintiff contends the trial court erred in granting summary judgment as to the surviving child’s wrongful death claim, arguing that genuine issues of material fact remain regarding the proximate cause of the decedent’s death.

Georgia’s wrongful death statutes give a right of action not available at common law and must be limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms. Miles v. Ashland Chem. Co., 261 Ga. 726, 728 (410 SE2d 290). OCGA § 51-4-2 (a) provides that a child may recover the full value of a parent’s life where there is evidence that the parent’s death was a homicide, i.e., the result of the wrongful act, default or negligence of another. OCGA § 51-4-1 (2). Neither this Code subsection, nor any other provision in Georgia’s wrongful death statutes provides for recovery where a defendant’s wrongful act or negligence did not result in death. Nonetheless, the dissent suggests that genuine issues of material fact remain as to the wrongful death action because there is evidence that the decedent’s life could have been prolonged (rather than saved) had it not been for defendant’s alleged malpractice. This view fails to recognize the fundamental distinction between statutorily prescribed wrongful death claims and claims associated with loss of chance of survival, e.g., pain and suffering, loss of consortium, loss of enjoyment of life. See Martin J. McMahon, Annot., Medical Malpractice: Measure and Elements of Damages in Actions Based on Loss of Chance, 81 ALR4th 485. While the loss and damages suggested by the dissent may be available in a cause of action outside Georgia’s wrongful death statutes, OCGA § 51-4-2 (a) simply does not provide for recovery for loss of chance of extended survival. In fact, this Code subsection only provides damages for the full value of the decedent’s life. (It does not provide for recovery for whatever remains of a decedent’s life because of misdiagnosis in a case of terminal illness.) See Michael P. Sullivan, Annot., Recovery in Death Action for Failure to Diagnose Incurable Disease Which Caused Death, 64 ALR4th 1232.

It thus follows that negligence alone is insufficient to sustain recovery for wrongful death in a medical malpractice action. It must be proven that the death of a patient “ ‘ “proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.” Maddox v. Houston County Hospital Auth., 158 Ga. App. 283, 284 (279 SE2d 732) (1981).’ Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1a) (304 SE2d 922).” Goggin v. Goldman, 209 Ga. App. 251, 253 (433 SE2d 85). Further, there can be no recovery in a wrongful death action based on medical negligence where there is no showing to any reasonable degree of medical certainty that the patient’s death could have been avoided. See Goggin v. Goldman, 209 Ga. App. 251, 252, supra; Parrott v. Chatham County Hosp. Auth. 145 Ga. App. 113, 115 (243 SE2d 269).

In the case sub judice, Emmett L. Dupree, Jr., one of the surgeons who discovered the decedent’s cancer, concluded that the decedent never had Crohn’s disease; that defendant failed to exercise the requisite degree of skill in diagnosing the decedent and that defendant’s improper diagnosis caused the decedent unnecessary pain and suffering and resulted in premature death. Dr. Dupree further testified that he had treated patients with symptoms similar to those presented by the decedent in November 1987 and that he had successfully extended their lives “for six or seven or eight years [and] sometimes ... a lot longer.” However, neither Dr. Dupree nor any other physician deposed by the parties was able to testify with any degree of medical certainty that the decedent did not have terminal cancer when defendant treated her in November 1987. In fact, while there is evidence that the decedent’s cancer may have been curable if it had been detected before metastasis, there is no proof that the decedent did not have terminal cancer when defendant first treated the decedent. On the contrary, Robert Carter Davis, Jr., a gastroenterologist experienced in detecting inflammatory bowel disease, testified that the decedent “at the time of presentation, in all likelihood, [had] a terminal cancer that presented with all the symptoms of Crohn’s disease.”

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In the case sub judice, there is no evidence that defendant’s misdiagnosis of the decedent’s cancer was the proximate cause of the decedent’s death so as to authorize damages for the full value of the decedent’s life pursuant to OCGA § 51-4-2 (a). Consequently, the trial court did not err in granting summary judgment as to the wrongful death claim filed on behalf of the decedent’s minor child.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Cooper, Andrews, Johnson and Smith, JJ., concur. Beasley, P. J., concurs specially. Blackburn, J., concurs in part and dissents in part.

Beasley, Presiding Judge,

concurring specially.

I concur in the majority opinion. With respect to the dissent, although Dr. Davis testified in deposition that the decedent had “at the time of presentation (to defendant in 1987), in all likelihood, a terminal cancer that presented with all the symptoms of Crohn’s disease,” he explained his use of the term “in all likelihood” when asked. He said it was a slang term and made clear that “[his] professional opinion is that she had terminal cancer at that time and was not salvageable.” His opinion was that she was at “Stage D ... it would have already had to be metastatic at the time. . . .” It was his opinion that defendant acted with good intent “and did what was an appropriate evaluation.” From this, a jury could not reasonably infer that the decedent’s cancer was treatable to such a degree that her life could have been extended.

With respect to Dr. Dupree, a surgeon (defendant is a gastroenterologist), he stated by affidavit that had defendant exercised the requisite care in 1987, the decedent’s cancer would have been diagnosed earlier and that her life “could have, in all likelihood, been prolonged and her pain and suffering eased.” In deposition he testified that surgery should have been done when fluid was found in the culde-sac, to find out what was going on in her abdomen. He said he had other surgery patients who lived six or seven or eight years “if you get to it in time.”

However, when asked if the decedent’s life would have been prolonged had surgery been done when the fluid was discovered, he testified: “Well, it’s kind of difficult to say about that. It probably would have been prolonged because, I mean, I have operated on patients before.” He described a woman on whom he operated who thereafter took chemotherapy treatment and lived about eight years. This is the extent of the “likelihood.”

In my opinion, eveti if there is in Georgia, either within or outside the wrongful death statutory claim, one for loss of a longer life or for one with less pain and suffering, the evidence falls short of supporting it.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Division 1 of the majority opinion, regarding the application of the statute of limitation to the estate’s survival action. However, with regard to the wrongful death action, I believe that jury questions exist as to whether the defendant physician was negligent and whether that negligence constituted the proximate cause of the decedent’s death. For that reason, I dissent from Division 2.

As noted by the majority opinion, in order to recover for a wrongful death in a medical malpractice action, the plaintiff must show negligence which constituted the proximate cause of the death. See Goggin v. Goldman, 209 Ga. App. 251 (433 SE2d 85) (1993). Contrary to the majority’s conclusion, the evidence in this regard was conflicting.

The plaintiff’s expert witness, Dr. Emmett Dupree, Jr., testified that in his opinion, the defendant physician misdiagnosed the decedent’s ailment as Crohn’s disease in November 1987, and failed to arrange the proper diagnostic procedures to rule in or out that disease at that time. Had the defendant done so in November 1987, Dr. Dupree felt that in all likelihood, surgery and other cancer treatment would have prolonged the decedent’s life by six to eight years. He recounted how such timely treatment of other patients who presented symptoms similar to those complained of by the decedent in November 1987 had prolonged those patients’ lives by that range of years. Dr. Dupree’s opinion was based upon his review of the medical records and his personal familiarity with the decedent’s case gained from his participation in the exploratory surgery on the decedent in February 1988 that revealed the terminal cancer.

Decided December 3, 1993

Reconsideration denied December 20, 1993

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

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, for appellee.

The defendant’s expert witness, Dr. Robert Carter Davis, Jr., based his opinion solely upon his review of the medical records of the decedent’s treatment. He concluded that in November 1987, in all likelihood, the decedent’s cancer had already reached an incurable stage. However, Dr. Davis did not state that the decedent’s condition was untreatable, or that appropriate treatment would not have extended her life. Even one who has an incurable illness is entitled to receive an appropriate diagnosis and treatment for the condition, where it is shown that such treatment could reasonably extend the life of such person.

Dr. Dupree’s opinion established jury questions in the wrongful death action, on the dispositive issues of negligence and proximate cause of the death of the decedent at the time of her demise. Cf. Richmond County Hosp. Auth. &c. v. Dickerson, 182 Ga. App. 601 (1) (356 SE2d 548) (1987). Although it may be true that the decedent ultimately would have died of cancer, the evidence is sufficient to raise a jury question as to whether the defendant’s negligence deprived her of additional years of life and resulted in her untimely death from cancer. Where it can be shown that the defendant’s negligence was the proximate cause of the decedent’s death, a wrongful death cause of action results, even if the decedent was destined to succumb to the disease at some point in the future. The existence of the terminal condition would be a factor in calculating damages, but it would not preclude a wrongful death action. A jury would be authorized to conclude that because of the defendant’s negligence, the decedent would not have died when she did, and that the plaintiff is entitled to recover appropriate damages.

Accordingly, for the foregoing reasons, I would reverse the trial court’s grant of summary judgment for the defendant on the wrongful death claim.

       Dr. Dupree based his opinion on his observations during surgery and upon an examination of medical records acquired during treatment of the decedent since November 1987.


author: Cooper, Judge.

text:
    A93A1712.
    MULLE v. YOUNT.
    (440 SE2d 210)
   Cooper, Judge.

This is the second appearance of this child custody dispute. See Mulle v. Yount, 204 Ga. App. 876 (420 SE2d 776) (1992). Once again, the interpretation of the Uniform Child Custody Jurisdiction Act (UCCJA), OCGA § 19-9-41 et seq., is presented. While living in Tennessee, the parties were married in 1985 and divorced in 1987. The May 1987 final Tennessee decree awarded the parties joint legal custody of their minor child, with appellee-mother having primary physical custody and appellant-father having reasonable visitation rights. In November 1987, appellee remarried and moved with the child from Tennessee to Savannah, Georgia, where they have since resided continuously. Appellant remains a resident of Tennessee. The custody and visitation provisions of the Tennessee decree have been the subject of much litigation in Tennessee, most recently in 1990. In 1991, appellee initiated the instant action in the Superior Court of Chat-ham County, Georgia, seeking sole permanent custody and further seeking a modification of the terms of appellant’s visitation. Appellant answered and moved to dismiss, pursuant to the provisions of the UCCJA, claiming that jurisdiction was proper in Tennessee. Based upon a determination that Georgia was now the home state of the child, the superior court exercised jurisdiction and entered an order modifying appellant’s visitation. However, on appeal this court vacated that order and remanded with direction that the superior court determine, as a jurisdictional prerequisite, whether Tennessee retained jurisdiction under the UCCJA or if Tennessee declined to exercise any jurisdiction in deference to the court of the child’s home state. Mulle v. Yount, supra. The superior court subsequently found that Tennessee no longer had jurisdiction over custody matters pertaining to this child and entered an order modifying some of the terms of appellant’s visitation with the child and requiring him to pay one half of the costs of lunches and registration for the child’s private school, but denying appellee’s request for sole custody. The parties were further directed to abide by all other terms of the May 1987 decree issued by the Tennessee court. Appellant’s application for discretionary appeal was granted by this court, and a timely notice of appeal was filed.

1. The exercise of custody jurisdiction by the Georgia superior court is enumerated as error. Appellant contends that Tennessee has continuing jurisdiction because it is the most convenient forum for determining whether any change in custody or visitation was warranted.

As a general rule, the superior courts of this state have jurisdiction under the UCCJA to make a child custody determination by initial or modification decree if Georgia is the “home state” of the child at the time of the commencement of the proceeding. OCGA §§ 19-9-43 (a) (1) (A); 19-9-42 (5). However, the courts of this state shall recognize and enforce an initial or modification custody decree which was made by a court of another state which had assumed custody jurisdiction under statutory provisions substantially in accordance with the UCCJA. OCGA § 19-9-53. Accordingly, “if a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree [either] does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with [the UCCJA] or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.” (Punctuation omitted and emphasis supplied.) OCGA § 19-9-54 (a). Both the absence of jurisdiction (or abstention) by the decree state and the presence of jurisdiction in this state must exist before a court of this state is authorized to modify the child custody decree of another state. Mulle v. Yount, supra at 877. These determinations are issues of fact and are subject to review under the “clearly erroneous” standard. See Fortson v. Fortson, 152 Ga. App. 326 (3) (262 SE2d 599) (1979).

Tennessee has adopted the UCCJA, which, in the absence of proof to the contrary, we assume is the same as the Georgia law. Craighead v. Davis, 162 Ga. App. 145 (2) (290 SE2d 358) (1982). “The jurisdictional standards of the UCCJA are set [forth at OCGA § 19-9-43 (a)]. In essence, [OCGA § 19-9-43] (a) establishes ‘home state’ jurisdiction, ‘significant connection’ jurisdiction, ‘emergency’ jurisdiction, and ‘appropriate forum’ jurisdiction.” Youmans v. Youmans, 247 Ga. 529, 532 (276 SE2d 837) (1981). Appellant does not enumerate as error the. determination by the Georgia superior court that Tennessee no longer has jurisdiction pursuant to OCGA § 19-9-43 (a) but urges that even if Tennessee no longer meets the requirements for one of these four jurisdictional bases, OCGA § 19-9-47 nevertheless authorizes the Tennessee court to retain custody jurisdiction and consequently, the Georgia superior court had no authority to modify the Tennessee custody decree.

This contention is without merit. OCGA § 19-9-47 is not a separate grant of jurisdiction over interstate child custody proceedings, but establishes a discretionary abstention doctrine. See Morris v. Mosley, 246 Ga. 749 (272 SE2d 705) (1980). Compare Steele v. Steele, 250 Ga. 101 (296 SE2d 570) (1982) (OCGA § 19-9-46, regarding a prior pending UCCJA custody proceeding, is a mandatory jurisdictional bar). Pursuant to the provisions of OCGA § 19-9-47, a court with custody jurisdiction as provided by OCGA § 19-9-43 (a) is nevertheless authorized to stay its own proceedings or transfer the case upon a determination that the court of another state, which also has a jurisdictional basis substantially as provided by OCGA § 19-9-43 (a), would be a more appropriate forum, after consideration of the factors enumerated at OCGA § 19-9-47 (c). Although OCGA § 19-9-43 (a) (4) (A) might otherwise authorize the Tennessee court to entertain custody jurisdiction on the ground that Tennessee “is the more appropriate forum,” that Code section presupposes that “no other state would have jurisdiction under prerequisites substantially in accordance with” those factors conferring “home state,” “significant connection,” or “emergency” jurisdiction. As the child has resided in Savannah, Georgia with his custodial parent since 1987, the Superior Court of Chatham County, Georgia was authorized to exercise “home state” custody jurisdiction. OCGA § 19-9-43 (a) (1). Accordingly, there is in this case no “appropriate forum” jurisdiction conferred upon the Tennessee court such as would preclude the Georgia superior court from exercising jurisdiction to modify the custody decree of another state as authorized by OCGA § 19-9-54. The exercise of custody jurisdiction by the Superior Court of Chatham County, Georgia to modify the May 1987 custody decree of the Tennessee court was not clearly erroneous.

2. Appellant ¿numerates as error the final order modifying his visitation rights, on the ground that he was deprived of an opportunity to present evidence and cross-examine witnesses. The final order of December 23, 1992 refers to the court’s prior order of September 18, 1991. The September 1991 order recites that the court met with counsel for both parties prior to a scheduled hearing and informed them of its intention to modify visitation on its own motion. Thereafter, the superior court adopted as its own decree the May 1987 Tennessee decree as modified by the Tennessee court in June 1988, subject to specific changes in the terms of visitation. The superior court then modified appellant’s visitation rights by changing the locus of the point of exchange from the Atlanta airport to the Savannah airport and requiring appellant to bear the costs of the child’s transportation. By adopting the decree of the Tennessee court, the superior court merely gave effect to the Tennessee decree awarding appellant joint legal custody and visitation. Although the superior court altered the logistical specifics of appellant’s visitation, the right to a separate evidentiary hearing on this issue was waived by appellant’s counsel prior to issuance of the order. One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing, unless it plainly appears that his consent was obtained by fraud or mistake. Don v. Don, 162 Ga. 240 (1) (133 SE 242) (1926); Rush v. Southern Property Mgmt., 121 Ga. App. 360, 361 (2a) (173 SE2d 744) (1970).

Decided December 3, 1993

Reconsideration denied December 20, 1993

McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., Clark & Clark, H. Sol Clark, for appellant.

Dennis, Peter & Helmreich, Bryan K. Webb, George M. Hubbard III, for appellee.

3. The purported upward modification of appellant’s child support obligations without a claim therefore in the complaint, without a hearing, and without evidence is enumerated as error. In this regard, appellant objects to the provision in the final order of the superior court directing appellant to pay one half of the costs for the child’s tuition, lunches, and registration in a private school in Savannah. As noted above, the superior court adopted the Tennessee decree as its own before undertaking to modify visitation. Appellant had previously agreed to be responsible for one-half of the costs of private school tuition for the child, and this agreement was incorporated into the Tennessee decree. Contrary to appellant’s contentions, we do not find this provision to be an unauthorized increase in appellant’s child support obligations; rather it is an explication of the expenses appellant had previously been ordered to pay.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur in judgment only.


author: Smith, Judge.

text:
    A93A1259, A93A1260.
    PETERS v. HYATT LEGAL SERVICES; and vice versa.
    (440 SE2d 222)
   Smith, Judge.

Richard E. Peters brought suit against Hyatt Legal Services (Hyatt), Hyatt attorney Linda Gross, and Hyatt legal assistant and notary public Kasonya M. Storey for damages resulting from Hyatt’s representation of Peters in an uncontested divorce action. Defendant Gross died after the filing of Peters’s complaint and before the entry of the judgments below. Cross-motions for summary judgment were filed, and Peters and Hyatt filed an appeal and cross-appeal, respectively, from the trial court’s rulings on these and other motions.

Peters and his former wife were married on July 2, 1986. At the time, both were enlisted in the United States Army, with Mr. Peters stationed in what was then West Germany, and Mrs. Peters in Kentucky. Almost eight months later, Mrs. Peters gave birth to a son. About September 1987, Mrs. Peters received a transfer to West Germany. Mr. Peters borrowed $1,700 from the United States government to place a security deposit on an apartment for the family. Two weeks after the reunited family moved into the apartment in the latter part of 1987, Mr. Peters moved out. In January 1988, he found his wife in bed with another man. Mr. and Mrs. Peters took steps to separate legally that same month. Counsel for Mrs. Peters in West Germany prepared, and Mrs. Peters executed, a proposed settlement agreement. However, Mr. Peters did not agree to the terms proposed and did not sign the agreement.

On October 14,1988, Mr. Peters returned to the United States on military leave to obtain a divorce. He consulted Hyatt attorney Gross for this purpose, paying approximately half of the total fee at his first visit. He furnished Gross with a copy of Mrs. Peters’s proposed settlement agreement and allegedly informed Gross of changes and additions required to prepare an agreement acceptable to him. Primarily, he sought the return of his mother’s family rings and the security deposit on the apartment. Mr. Peters returned to West Germany with the understanding that he would be billed for the remainder of the fee and that paperwork would be sent to his wife within 30 days. He had no further contact with Hyatt prior to the time a final divorce was entered.

In December 1988, Mr. Peters resided in barracks while Mrs. Peters and son continued to reside in the apartment in West Germany. Mrs. Peters asked about the status of the divorce, and because he could not call the United States directly from the barracks, Mr. Peters gave her Gross’s name and number. As a result, Mrs. Peters discovered that Hyatt would not proceed until the balance of the fee was paid. Although Mr. Peters indicated his willingness to satisfy the balance, Mrs. Peters told him she would do so while in the United States later that month.

The divorce action was filed December 29, 1988 in Fulton County. As would be expected, Linda Gross of Hyatt Legal Services was the attorney of record. However, the named plaintiff was Debra Y. Peters, and the named defendant was Richard E. Peters. Mrs. Peters signed the verification and “consent to final hearing” on December 28, 1988. The undisputed evidence shows that Mr. Peters’s purported signatures on the acknowledgment of service and “consent to final hearing” filed with the complaint, dated December 29, 1988, are in fact forgeries. The acknowledgment of service was notarized by defendant Storey. The “consent to final hearing” was witnessed by defendant Gross. On December 29, 1988, Mr. Peters was confined to quarters in West Germany and therefore could not have signed the documents in Storey’s presence. In a deposition taken over two years following the notarial act in question, Storey had no recollection of the event. Gross was not deposed prior to her death.

A final judgment and decree was entered on January 31, 1989. The decree made no provision for the return to Mr. Peters of his mother’s rings or the security deposit, stating instead that “the parties’ property has already been divided.” Peters also points out that because it was not dealt with in the decree, he was required to pay a telephone bill equivalent to over $700 that Mrs. Peters incurred while living in the apartment.

1. We first address the denial of cross-appellant Hyatt’s motion for summary judgment enumerated as error in Case No. A93A1260. Hyatt argues, among other things, that Peters waived his right to bring suit by failing to pursue the judicial remedy available to him. We observe that the harm allegedly done to Peters flows directly from a divorce decree and settlement he contends was fraudulently entered and which contained terms to which he did not assent. It follows that the vitality of Peters’s claims of tangible injury resulting from the defendants’ actions depends upon the vitality of the underlying judgment of divorce.

Georgia law provides that a motion may be brought to set aside a judgment when the court entering it lacked jurisdiction over the defendant. OCGA § 9-11-60 (d) (1). A divorce granted by a court lacking personal jurisdiction is a nullity, Harmon v. Harmon, 209 Ga. 474 (1) (b) (74 SE2d 75) (1953), and may be remedied by a motion to set aside the judgment in the court of rendition. See generally Abba Gana v. Abba Gana, 251 Ga. 340 (304 SE2d 909) (1983). However, a void judgment that is not void on its face is nevertheless “binding upon the parties until set aside by a direct attack in the court where it was obtained. [Cits.]” Long v. Long, 117 Ga. App. 606, 608 (2) (161 SE2d 417) (1968).

The facts upon which Peters relies clearly suggest a viable judicial remedy under OCGA § 9-11-60. Nevertheless, Peters has apparently chosen to maintain the binding effect of a voidable judgment while at the same time pursuing his claims against Hyatt and its employees. He asserts that he should not be required to reinstate the marriage in order to recover for the injury Hyatt caused him. We agree with Peters’s premise, but not without reservations.

Peters presumes that but for the prior judgment fraudulently obtained, he would have secured his mother’s wedding rings, the deposit on the apartment in West Germany, and payment of the telephone bill at the apartment, and that therefore his injury is the loss of those items. This position is speculative at best. His only injury apparent from the record is the loss of the right to pursue the items listed because of the existence of a voidable judgment. In fact, the sole injury is the existence of that judgment and the necessity of having it set aside to avoid its binding effect. If he disagrees with the effect of the judgment, he may set it aside as the law allows. He may likewise acquiesce and accept the judgment as rendered. He may not, however, purport to adopt and invoke a voidable judgment in order to complain of the tangible consequences of that choice in an action against his attorney. See Don v. Don, 162 Ga. 240, 242 (133 SE 242) (1926). Peters seems to assume that an election to sue Hyatt for money damages would prevent him from later setting aside a judgment of divorce entered by a court that did not have jurisdiction over him, even though that judgment is alleged by him to be “null and void.” We are aware of no controlling authority for that proposition to date. But see Marshall v. Marshall, 257 Ga. 494 (360 SE2d 572) (1987). If Peters has experienced an injury due to negligence on the part of the defendants, that injury is clearly not the “loss” of items he may pursue by setting aside a divorce that is binding upon him only until directly attacked under OCGA § 9-11-60 (d) (1). While a later motion by Peters to set aside the divorce may be barred for some other reason, we are aware of no reason why Peters could not simultaneously pursue, in separate actions, relief from the judgment erroneously entered as well as relief for Hyatt’s alleged malpractice.

However, this does not end the inquiry. Peters alleges facts suggesting that his marital status was changed without his knowledge, without proper representation, and under terms that he claims were not agreed upon by him. According to Peters, this change in marital status was the direct result of Hyatt’s alleged breach of fiduciary duty to him by representing his former wife’s interests in the prior divorce action. Peters is thus presented with a Hobson’s choice — acquiesce and accept the judgment of divorce as it stands, or set it aside in order to pursue a “proper” divorce that may or may not leave him better off. We find Peters’s dilemma sufficient to state a cause of action for at least nominal damages under OCGA § 51-12-4.

The mere fact that his former marital status may be restored by setting the divorce aside does not change this result. “[I]t is not the law in this state that clients seeking to sue their attorneys for malpractice or misconduct which resulted in an adverse or unacceptable judgment must first set aside that judgment before proceeding against their attorneys.” Zepp v. Toporek, 211 Ga. App. 169, 172 (438 SE2d 636) (1993). While there are clear distinctions that can be made between the prior judgment involved in Zepp and the judgment underlying the present case, such distinctions do not demand a different result here. We find the reasoning applied in Zepp to be equally applicable in this case.

Mauldin v. Weinstock, 201 Ga. App. 514 (411 SE2d 370) (1991), cited by Hyatt for the proposition that failure to pursue an available judicial remedy constitutes waiver, does not control our decision here. In Mauldin, the plaintiff did not allow his attorney to file suit in order to compel arbitration of the underlying claim. As Zepp suggests, a failure to set aside a final judgment is clearly different in kind from a failure to prosecute a pending claim. Moreover, Mauldin clearly should not be extended as authority for the proposition that a client harmed by his attorney’s conflict of interest must allow the attorney to correct the error in a manner the client reasonably opposes. The “remedy” available under OCGA § 9-11-60 (d) (1) is simply not a prerequisite to a malpractice action under the facts presented. See Zepp, supra.

Hyatt’s various arguments in support of this motion fail to demonstrate conclusively that it bears no legal responsibility whatsoever for the result of its alleged failure to fully represent its client’s interests in the divorce action, on the one hand, while at the same time actively representing his former wife in the final hearing of that action. Since a judgment right for any reason must be affirmed, we hold that the trial court did not err in denying Hyatt’s cross-motion for summary judgment. McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174, 177-178 (381 SE2d 126) (1989).

2. Peters contends in Case No. A93A1259 that the trial court erred by denying his motion for partial summary judgment on the issue of Hyatt’s liability for malpractice and breach of contract. .

(a) In support of his claim for malpractice, he argues that he retained Gross and Hyatt to represent him in obtaining a divorce; that he informed Gross that he wanted certain things included in any agreement incorporated into the decree of divorce; that although the parties were eventually divorced, in that litigation Hyatt represented not Peters but the adverse party, his wife, and obtained a decree incorporating not what Peters had informed his attorney he desired, but what his wife did.

As pointed out by Peters, under EC 5-15 and DR 5-105, an attorney may not represent clients with adverse interests unless “it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.” DR 5-105 (C).

Therefore, if Gross and Hyatt had agrfeed to represent Peters during his initial consultation and later represented Peters’s wife in the action filed, such a course of action would be an obvious conflict of interest, unless the parties were informed of the possible effects of such dual representation and they nonetheless agreed to proceed in that fashion. The expert relied upon by Hyatt, an attorney experienced and prominent in the field of domestic relations, agreed with this standard.

To determine whether the standard was breached here as a matter of law, entitling Peters to partial summary judgment on this issue, we must apply that standard to these facts. It is undisputed that Peters had an initial consultation with Gross and at that consultation he signed a document captioned “fee statement^] uncontested divorce.” The document specifies the fees involved in an uncontested divorce, and states that when half the total attorney fee and costs are paid, Hyatt will complete preparation of the pleadings. The last sentence in the text of that document recites that “your signature allows us to represent you after payment is made.” It is signed by Richard E. Peters, and it is undisputed that Peters paid half the total amount at the time of his initial visit.

It is unclear from the face of the document whether “payment” refers to the entire fee or whether the deposit made by Peters qualified, under the contract, to begin Hyatt’s representation. Clearly, Peters understood it to do so. However, in discovery documents Peters requested that Hyatt admit that “on or about October 14, 198[8], [he] sought legal advice and retained Linda Gross, an agent, servant and/ or employee of Hyatt Legal Services as his legal representative in an action for divorce against his wife.” Hyatt denied that request. In response to an interrogatory asking which party Hyatt had represented in the divorce action, Hyatt stated that although Peters had initially consulted with Hyatt, at the time of that consultation, under the terms of the agreement Peters signed, Hyatt did not represent Richard Peters.

Therefore, contrary to Peters’s assertion that the facts of this case are “essentially undisputed” that he retained Gross to represent him, the evidence is very much in conflict as to whether Hyatt actually undertook to represent Peters in a contemplated divorce action against his wife. This issue of fact remains for jury determination. Since Peters’s claim of an ethical breach and resulting malpractice on the part of Hyatt is dependent upon establishing such representation, the trial court properly denied Peters’s motion for partial summary judgment on this issue.

(b) Peters contends that Gross breached her fiduciary duty to him by acting as a witness to his forged signature on the “consent to final hearing” pleading and that this breach also constitutes malpractice. See Holmes v. Drucker, 201 Ga. App. 687, 688-689 (1) (411 SE2d 728) (1991). As the movant for summary judgment, Peters has the burden of showing that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). He has failed to carry this burden.

Peters introduced evidence that his purported signature on that document was forged and that he did not authorize Gross to execute it on his behalf. However, breach of fiduciary duty would only be shown if Gross knew or should have known that the signature was not that of Peters. Otherwise, it would simply be an honest mistake. His initial consultation with Gross took place on October 14, 1988. That was his only meeting with Gross. The “consent to final hearing” was signed more than two months later, on December 29,1988. No admissible evidence in the record discloses what actually transpired on December 29, 1988 when the signature on the “consent to final hearing” was witnessed by Gross. Therefore, viewing the evidence in the light most favorable to Hyatt, as the respondent, Peters has not shown entitlement as a matter of law to judgment in his favor on his claim for breach of fiduciary duty. The trial court did not err in denying his motion for partial summary judgment on this ground.

3. The court likewise did not err in denying Hyatt’s motion for partial summary judgment on the issue of punitive damages in Case No. A93A1260, since a question of fact remains whether Hyatt has injured Peters as a result of that “entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). See generally Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). This enumeration is without merit.

4. Peters enumerates as error in Case No. A93A1259 the grant of summary judgment to defendant Storey based on her alleged breach of duty in notarizing the forged signature appearing on the acknowledgment of service in the prior divorce action. Peters points out that OCGA § 51-1-6 provides for a cause of action against any person who breaches a legal duty. Moreover, OCGA § 45-17-8 (e) provides that “[i]n performing any notarial act, a notary public shall confirm the identity of the document signer, oath taker, or affirmant based on personal knowledge or on satisfactory evidence.” Storey has no recollection of the transaction in question. Peters argues that since the document is an undisputed forgery, there is an inference that Ms. Storey failed to perform her statutory duty with due care such that she may be held liable for the harm done to Peters. We agree. Under the facts alleged, Peters states a sufficient cause of action against Storey. Without an indication that other evidence exists or was relied upon by the trial court negating the inference Peters establishes, we are constrained to conclude that the court erred in granting Storey’s motion for summary judgment.

We likewise find that the trial court erred in granting Storey’s motion for partial summary judgment on the issue of punitive damages. Storey testified that there were occasions during her employment at Hyatt wherein she would notarize documents without actually witnessing the signature or talking to the signor. She would perform this function at the request of attorneys at the office. Whether such discharge of her statutory duty could be construed to be “that entire want of care which would raise the presumption of conscious indifference to the consequences” under OCGA § 51-12-5.1 (b) is a jury question. We hold that neither Storey nor Hyatt is entitled to summary judgment on the issue of punitive damages based on Storey’s conduct.

Decided December 20, 1993.

Calabro & Jennette, Michael M. Calabro, for appellant.

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Jennifer M. Daniels, for appellee.

5. In Case No. A93A1260, Hyatt claims error in the court’s ruling that an internal memorandum alleged to have been written by Linda Gross regarding her actions in the Peters’s divorce case was inadmissible at trial. However, the true error complained of, as argued in Hyatt’s brief in support of its cross-appeal, is that the court “did not clarify whether [the memorandum] was inadmissible for use both in the summary judgment motion and at trial.” This enumeration presents no issue ripe for review, and moreover, this court is not the proper forum to provide the clarity Hyatt seeks. We express no advisory opinion whether the evidence in question may be admissible at trial for any reason. See, e.g., Smith v. Billings, 132 Ga. App. 201, 204 (4) (207 SE2d 683) (1974).

Judgments affirmed in part and reversed in part.

Cooper, J., concurs. Beasley, P. J., concurs in the judgment only.

       For what appears to be the sole case authority in this state dealing with the potential for civil liability based on notarial acts, see Signal Knitting Mills v. Roozen, 150 Ga. App. 552, 553 (2) (258 SE2d 261) (1979).


author: McMurray, Presiding Judge.

text:
    A93A2298.
    GILES v. THE STATE.
    (440 SE2d 48)
   McMurray, Presiding Judge.

Defendant Giles appeals his conviction of criminal damage to property in the second degree. Held:

1. During the early morning of October 3, 1992, several gunshots were fired into an automobile belonging to Lollie Trask, Defendant contends that there was not sufficient evidence showing that he fired those shots to authorize his conviction.

Trask and defendant had been divorced on September 13, 1991, but continued to live together for ten months, thereafter continued to occasionally see each other, and had sexual intercourse as recently as approximately a month prior to the incident at issue. By the date of the incident, defendant was aware that Trask had become involved with another man, had sent a number of threatening notes to Trask, and had repeatedly appeared at night spots where Trask had gone, where he would sit across the bar and watch her.

On the night in question, Trask had been in a bar and defendant was observed watching her and leaving a note on a napkin where his ex-wife was sitting. Trask and her companions left by the back door, leaving her car parked outside the bar.

At approximately 5:35 a.m., defendant entered a nearby restaurant and ordered breakfast. After eating breakfast, defendant briefly left the restaurant, saying that he was going to get his cigarettes. Two or three minutes later two gunshots were heard by an employee who looked out into the parking lot and saw no one other than defendant. Two or three minutes later defendant returned and asked for another cup of coffee. After finishing his coffee, defendant again left the restaurant and about three or four minutes later, three more gunshots were heard. Shortly thereafter, the damage to Trask’s car was discovered. Trask had received several threatening notes from defendant shortly prior to the evening in question. Defendant sought to pay for the damages to the car and gave Trask two checks for this purpose, albeit they were returned to her when she attempted to cash them due to a stop payment placed on them. Bullet fragments removed from the car were examined and compared with bullets fired from a gun owned by defendant and it was determined that the bullets which struck the car bore markings consistent with having been fired from defendant’s gun but whether in fact they had been fired from that gun could not be established by the laboratory test.

“ ‘It is well settled that in an entirely circumstantial case, the question whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law. (Cits.) The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind. (Cit.) Moreover, in every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury. (Cit.)’ Adams v. State, 187 Ga. App. 340, 344 (1) (370 SE2d 197) (1988). Because the jury’s finding in the instant case is not insupportable as a matter of law or outside the proven facts, we shall not disturb it. See Livingston v. State, 193 Ga. App. 502, 503-504 (2) (388 SE2d 406) (1989).” Johnson v. State, 208 Ga. App. 747, 748 (1) (431 SE2d 737). Even though there was no direct evidence that defendant committed the crime, we conclude that the evidence meets the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), in that a rational trier of fact could find proof of guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. See also White v. State, 263 Ga. 94, 95 (1), 97 (428 SE2d 789).

2. Defendant’s remaining enumeration of error complains of the admission of certain evidence of prior difficulties between himself and Trask. Since the decision in Maxwell v. State, 262 Ga. 73, 74 (2), 75 (414 SE2d 470), before evidence of prior difficulties between an accused and a victim can be presented, the trial court must conduct a hearing pursuant to Uniform Superior Court Rule 31.3 (B) at which the State must make a showing as to each prior difficulty of the three affirmative showings outlined in Williams v. State, 261 Ga. 640, 641 (2), 642 (b) (409 SE2d 649), and the trial court must make a determination that as to each prior difficulty that these three showings have been satisfactorily made before the State may present evidence of that prior difficulty. The State served notice of its intent to introduce the evidence in question and defendant opposed admission of the evidence via a motion in limine. After a hearing the evidence was held to be admissible.

The first prior difficulty at issue occurred earlier on the night the gunshots were fired into the car. Defendant was observed placing nails beneath the tires of Trask’s car. Defendant argues that this incident was not similar to the crime with which he is charged because there was no element of “reckless endangerment” such as arose from the discharge of a firearm in a public parking lot. Nonetheless, the obvious goal was the same in both instances, to damage and disable the car. We find no merit in the contention that there was a lack of similarity.

The remaining contentions involve a group of occurrences that show that defendant was at the bar where Trask had gone on the night in question and that he had written notes to her. Defendant argues that notes to Trask and being in the same place she was could have nothing to do with the crime with which he was charged. This of course argues a lack of similarity between the earlier acts and the crime charged. However, the third prong of the test stated in the Williams decision may be satisfied not only by showing similarity between the prior acts and the crime charged, but also by showing a sufficient connection between the earlier act and the crime charged. Id. at 642. The connection in the case sub judice is shown by the State’s evidence that defendant’s presence at the bar where Trask had gone that night was part of a pattern of obsessive conduct on the part of defendant following his divorce and separation from Trask.

Also, in both instances the evidence was properly admitted because it was substantially relevant for some purpose other than to show a probability that defendant committed the crime on trial because he is a man of criminal character. Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129); Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277). This enumeration of error is without merit.

Decided December 10, 1993

Reconsideration denied December 21, 1993

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Pope, Chief Judge.

text:
    A93A1747.
    JOSEPH LAND & COMPANY, INC. v. CHRISTOPHER EDWARDS COMPANIES, INC.
    (440 SE2d 234)
   Pope, Chief Judge.

On or about May 1, 1991, Christopher Edwards Companies, Inc. (“Edwards”) sold 1,980 cases of lemon meringue pie to San Juan Supply Corporation for ultimate delivery to Burger King Corporation. The pies were shipped from the Edwards’ facility in Atlanta, Georgia, to Jacksonville, Florida, via a truck owned by Joseph Land & Company (“Land”). The bill of lading required the cargo to be maintained between zero and ten degrees. Upon arrival in Jacksonville, it was determined that the temperature of the cargo area of the truck was 65 degrees. The pies were returned to Atlanta where they were rejected by Edwards. Edwards later filed suit to recover the value of the pies.

In its complaint, Edwards set forth a state law negligence claim against Land. In its motion for summary judgment, Edwards argued that OCGA § 46-9-1 requires common carriers to exercise extraordinary diligence in transporting goods and Land had failed to exercise such diligence. After Land agreed to stipulate to liability but not damages, the trial court issued an order granting Edwards summary judgment as to liability and a hearing on the issue of damages was set. After conducting a bench trial on the issue of damages the trial court found in favor of Edwards and awarded it damages in the amount of $30,231.44 in principal and $4,982.14 in interest. Following denial of its motion for new trial, Land appeals.

For the first time on appeal, Land raises the argument that the Carmack Amendment to the Interstate Commerce Act, 49 USC § 11707 (a) (1) provides the exclusive remedy of an interstate shipper against a common carrier for damages to goods. It is well settled that the Carmack Amendment pre-empts state law remedies against common carriers for negligent loss or damage to goods shipped under a lawful bill of lading. Underwriters at Lloyds of London v. North American Van Lines, 890 F2d 1112, 1113 (10th Cir. 1989); Intech, Inc. v. Consolidated Freightways, 836 F2d 672, 677 (1st Cir. 1987); Hughes v. United Van Lines, 829 F2d 1407, 1412-1415 (7th Cir. 1987), cert. denied, 485 U. S. 913 (108 SC 1068, 99 LE2d 248) (1988); and cases cited therein. Parties cannot waive application of the Car-mack Amendment and elect to proceed under state law remedies. Hughes, 829 F2d at 1415. Our review of the record reveals that the applicability of the Carmack Amendment was never raised below and the trial court did not have an opportunity to properly consider this case in light of this controlling federal law. For this reason we must vacate the judgment of the trial court and remand this case for consideration under the Carmack Amendment and further proceedings consistent with this opinion.

Decided December 23, 1993.

Casey, Gilson & Williams, Matthew D. Williams, for appellant.

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., Jeffrey T. Wise, for appellee.

Judgment vacated and remanded.

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


text:
    A93A1890.
    JACKSON v. DUNKIN’ DONUTS, INC. et al.
    (440 SE2d 56)
   Pope, Chief Judge.

Plaintiff ate a bran muffin which allegedly contained a large industrial staple. She had purchased the product at a Dunkin’ Donuts franchise, and she sued defendant Dunkin’ Donuts, Inc. (“DD”), the franchisor, and defendant Conopeo, Inc., the company which allegedly manufactured the mix from which the muffin was made. After presentation of evidence at trial, the lower court directed a verdict for both defendants. With respect to defendant DD, the trial court ruled there was no evidence of negligence on DD’s part and no evidence of a relationship between DD and the franchisee which would allow DD to be held liable for any negligence on the part of the franchisee. And with respect to Conopeo, the trial court concluded there was no evidence that Conopeo had in fact supplied the mix from which plaintiff’s muffin was made.

Decided December 23, 1993.

Kendall & Dixon, Alvin L. Kendall, E. Earle Burke, for appellant.

Troutman Sanders, Kaye 0. Woodard, John J. Dalton, Smith, Howard & Ajax, Michael D. St. Amand, for appellees.

In her sole enumeration of error, plaintiff contends the trial court erred in refusing to admit into evidence a letter from the franchisee’s insurer to plaintiff’s attorney, in which the insurer indicated that Pennant Corporation, Conopco’s predecessor in interest, made the muffin mix. We agree with the trial court that the letter was inadmissible hearsay. Plaintiff asserts that the letter was admissible for the purpose of explaining her conduct in suing Conopco. See OCGA § 24-3-2 (letters and similar evidence are admissible to explain conduct). However, OCGA § 24-3-2 applies only where the conduct to be explained is relevant to the issues on trial, see Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), and the reason a plaintiff sues a particular defendant is not relevant to any of the issues involved in establishing the plaintiff’s cause of action. Nor was the letter admissible as an admission, as the franchisee’s insurer was neither a party nor a privy of a party. See OCGA §§ 24-3-31; 24-3-32.

We further conclude that this appeal was frivolous and therefore grant defendant Conopco’s motion for sanctions in the amount of $500. See Court of Appeals Rule 26.

Judgment affirmed.

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

       Plaintiff’s action against Doughboy, Inc., the franchisee which owned and operated the Dunkin’ Donuts where plaintiff purchased her muffin, was dismissed due to plaintiff’s failure to serve it in a timely manner.

       We also note that even if the letter were admissible for the limited purpose of explaining conduct, it could not provide the substantive evidence of Conopco’s involvement necessary to overcome the directed verdict in Conopco’s favor.


text:
    A93A1978.
    KENDRICK v. THE STATE.
    (440 SE2d 53)
   Pope, Chief Judge.

Defendant Arthur Nathaniel Kendrick appeals from his conviction for robbery.

1. Defendant first argues there was not sufficient evidence for a rational finder of fact to find him guilty of robbery beyond a reasonable doubt. Construing the evidence in the light most favorable to support the verdict, the evidence showed that on August 19, 1992, defendant entered an Amoco Gas and Food Mart located in Cobb County. He purchased a beer and then asked the store clerk for matches. When the clerk bent down to get matches for him, defendant reached into the cash drawer of the register, took approximately $40 and ran out of the store. At trial the clerk at the store identified defendant as the person who took money from the cash drawer. She further testified that although she did not see him reach into the drawer, she felt his hand touch her while she bent down and as he ran from the store she saw money in his hand.

Defendant’s actions at the counter were recorded on videotape by a camera located behind the register area. The State presented that tape as evidence at trial.

The State also presented the testimony of a former employee of the store who testified he was at the store to make a purchase at the time defendant was there and noticed an unoccupied car with the motor running backed up beside the side of the store that did not have any windows. He became suspicious and wrote down the tag number of that car. As he started to enter the store, a man ran past him and sped away in the car. The State also presented testimony that a check of the tag number revealed the car was registered to defendant’s wife.

Defendant testified on his own behalf and did not deny he was at the store that evening. He testified that after the clerk bent down, he saw some matches and reached over and grabbed them and the beer he had purchased, then left the store. “ ‘Judging the credibility of witnesses and weighing the evidence are functions within the province of the jury. . . . [Cit.]’ ” Turner v. State, 206 Ga. App. 683, 684 (426 SE2d 168) (1992). The jury was authorized to reject the defendant’s explanation and accept the testimony of the witnesses presented by the State. There was sufficient evidence to authorize defendant’s conviction.

2. Defendant also argues his warrantless arrest in his home was illegal. In support of his argument defendant relies upon Payton v. New York, 445 U. S. 573 (100 SC 1371, 63 LE2d 639) (1980) and other cases involving both a warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest.

In this case, shortly after the robbery two Cobb County detectives were called to the Amoco Gas and Food Mart where they viewed the videotape of the alleged robbery. They also ran a tag check on the vehicle used by the robber and learned it was registered to defendant’s wife at a Fulton County address. They proceeded to that address but the vehicle was not located there. They checked another area where they suspected the vehicle might be located and returned to the street where defendant lived. They spotted the vehicle several houses away from defendant’s house with a man sitting in the passenger’s seat. They approached the car and talked to the passenger, who told them defendant had promised to take him home after he checked in with his wife.

With the passenger accompanying them, the officers approached defendant’s house. His wife answered the door, and when the detectives questioned her about the location of her car, she was surprised to learn it was not in the carport. She asked the detectives to come inside the house and called for her husband. When he came into the room, the detectives recognized him as the man in the videotape. Because they were in the City of Atlanta’s jurisdiction, one detective questioned defendant, his wife and the passenger about whether the car had been stolen while the other detective radioed for back-ups from the City of Atlanta to assist them. Although defendant originally denied that he was driving the car on the night in question and tried to make it appear that the passenger had taken the car, he finally admitted he was driving the car. He testified that he then told the detectives to leave if that was “all they had.” The detectives then told defendant they had viewed a videotape of a robbery at a convenience store and he was the man depicted on the tape. Defendant denied any involvement in a robbery and violently resisted arrest. Only after back-ups from the City of Atlanta Police Department arrived were the officers able to subdue him and take him into custody.

“Absent exigent circumstances or consent, an entry into a private home to conduct a search or to effect an arrest is unreasonable without a warrant. See Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981).” Animashaun v. State, 207 Ga. App. 156, 158 (427 SE2d 532) (1993). In this case it is undisputed that defendant’s wife, who had common authority over the house she shared with defendant, gave the detectives permission to enter. They were legally inside the house when they saw defendant and recognized him as the man depicted on the videotape. Defendant contends he revoked any permission they had to be inside his house by asking them to leave and their continued presence there and his subsequent arrest are illegal. Assuming defendant asked the detectives to leave if all they were there to find out was whether his wife’s car was stolen, his statement implied they had permission to stay if they had other matters of inquiry, which they did. Furthermore, only defendant’s wife could revoke her consent and there is no evidence defendant’s wife indicated agreement with the defendant’s request or otherwise acted in a manner to revoke her consent. Defendant was legally arrested during a consensual entry of his home. See Animashaun, 207 Ga. App. at 158; Hollinger v. State, 195 Ga. App. 649 (2) (394 SE2d 603) (1990); Watson v. State, 159 Ga. App. 618, 619 (284 SE2d 636) (1981).

Decided December 23, 1993.

Sharon L. Melcher, for appellant.

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

3. Defendant contends the trial court committed reversible error by allowing testimony concerning how he violently resisted arrest and damaged police property while being transported after arrest. It is well settled that all circumstances surrounding a defendant’s arrest are admissible for whatever value the jury desires to place on them, even when the evidence might incidentally place the defendant’s character in issue or otherwise be prejudicial. Coney v. State, 198 Ga. App. 272 (3) (401 SE2d 304) (1991).

4. Defendant claims he did not receive effective assistance of counsel. The record reveals that this claim was properly first made on appeal since appeal marks the first appearance of new counsel. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991).

We remand the case to the trial court for a hearing and appropriate findings concerning defendant’s claim of ineffective assistance of counsel. Lamb v. State, 263 Ga. 118 (4) (428 SE2d 349) (1993).

Judgment affirmed and case remanded.

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

       One detective denied that defendant made that statement.


text:
    A93A2362.
    WELDON v. THE STATE.
    (440 SE2d 57)
   Pope, Chief Judge.

Defendant James Edward Weldon was convicted of felony obstruction of a law enforcement officer and appeals. In his sole enumeration of error, defendant argues the evidence was insufficient to sustain the conviction. Construing the evidence in the light most favorable to support the verdict, the evidence showed that four Dade County deputies approached defendant’s parents’ trailer to execute an arrest warrant on defendant. As one of the officers attempted to take defendant into custody, he pushed that officer into an inside wall of the trailer and ran out the front door. Defendant was quickly apprehended.

“On appeal of a criminal conviction, the standard of review is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . This court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Browning v. State, 207 Ga. App. 547, 548 (1) (428 SE2d 441) (1993). The defendant claims that the evidence was insufficient because he and his parents all testified that the defendant did not touch the arresting officer. However, three of the officers who were present that evening testified at trial and all stated that the defendant pushed the officer who first attempted to take defendant into custody.

Decided December 23, 1993.

Charles G. Wright, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary Jane P. Melton, Assistant District Attorney, for appellee.

The jury was authorized to reject the testimony of the defendant and his parents, and accept the testimony of the police officers. See Brady v. State, 207 Ga. App. 451 (428 SE2d 373) (1993). “[T]his court may not substitute its judgment for that of the jury.” Browning, 207 Ga. App. at 548. The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of obstruction of a law enforcement officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Widner v. State, 203 Ga. App. 823, 825 (5) (418 SE2d 105) (1992).

Judgment affirmed.

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