author: Sognier, Chief Judge.

text:
    A91A0404.
    MAYS v. THE STATE.
    (408 SE2d 714)
   Sognier, Chief Judge.

Buford Mays was arrested on June 19, 1989 and indicted on a charge of possessing cocaine with the intent to distribute. See OCGA § 16-13-30 (b). On December 4, 1989, he pled guilty to that offense (hereinafter referred to as the “June 19th offense”), and under the First Offender Act, Ga. L. 1968, p. 324, OCGA § 42-8-60, he was sentenced, inter alia, to five years probation and 60 to 120 days in a detention center with the adjudication of guilt suspended and deferred in accordance with the Act. Four days later, on December 8, 1989, he was arrested on a separate charge of possession of cocaine with intent to distribute (the “December 8th offense”). The trial court deferred ruling on the State’s motion to revoke Mays’ probation on the June 19th offense until after the trial on the indictment stemming from the December 8th offense, at which a jury found Mays guilty. After judgment was entered on the jury’s verdict, the trial court then found that based on the December 8th offense, Mays had violated the terms of his probation. Consequently, the trial court revoked Mays’ probation, adjudicated him guilty of the June 19th offense pursuant to his guilty plea, and, in accordance with OCGA § 16-13-30 (d), imposed a sentence of life imprisonment on the June 19th offense. We granted Mays’ application for discretionary review under OCGA § 5-6-35 (a) (5) .

1. We find no merit in appellant’s first enumeration in which he contends the evidence that supported his conviction on the December 8th offense was insufficient under the preponderance of the evidence standard, OCGA § 42-8-34.1 (a), to establish that he had violated his probation. We note that OCGA § 42-8-60 (b) provides that “upon a conviction for another crime during the period of probation, ... the [trial] court may enter an adjudication of guilt,” and that appellant does not contend that his conviction on the December 8th offense was not properly before the trial court when it adjudicated him guilty on the June 19th offense.

Moreover, our review of the transcript of the trial of appellant’s December 8th offense discloses evidence that in an area known for its illegal drug activities, police officers on patrol observed appellant, who was standing holding a beer, turn and climb the stairs to the porch of a house when they approached. As the officers watched, appellant, who was alone on the porch, tried hurriedly but unsuccessfully to enter the house through the front door, then turned and left after setting down his beer bottle and placing another item inside a 12-pack beer carton on the porch. Acting on the suspicion that appellant was under the legal drinking age (which later proved accurate), one officer approached appellant while the other officer investigated the beer carton on the porch. Appellant’s half empty bottle was beside the carton, which was found to contain several unopened beer bottles and a plastic sandwich bag filled with what was later determined to be crack cocaine. Appellant was carrying $810 in cash, primarily $20 bills, and a radio-call beeper.

We find this was ample evidence from which a rational trier of fact could have concluded that appellant was guilty beyond a reasonable doubt of possession of cocaine with the intent to distribute under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Riley v. State, 196 Ga. App. 148 (395 SE2d 394) (1990). It follows that the State carried its burden of establishing that violation by a preponderance of the evidence. See generally OCGA §§ 24-1-1 (5); 24-4-3; Monroe v. Sigler, 256 Ga. 759, 761 (6) (353 SE2d 23) (1987).

Accordingly, the trial court did not err by setting aside appellant’s probation, adjudicating him guilty of the June 19th offense, and sentencing him thereon.

2. Appellant contends the trial court erroneously construed OCGA § 16-13-30 (d). That statute provides: “Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to [cocaine and other specified substances] shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he shall be imprisoned for life.” (Emphasis supplied.) Appellant argues that under OCGA § 16-13-30 (d), the trial court is required to consider when the offenses were committed, not when the convictions are entered, when sentencing a defendant, and therefore, the trial court erred by entering a life sentence on his first (June 19th) offense, even though it was his second conviction for possession of cocaine with intent to distribute. We do not agree.

“The cardinal rule of construction of statutes is to carry into effect the legislative intent and purpose of the Act, if ascertainable, and it is within constitutional limits. [Cits.]” Dismuke v. State, 142 Ga. App. 381, 383 (236 SE2d 12) (1977). “ ‘Generally, where the language used by the legislature is plain and unambiguous, judicial construction is unnecessary. (Cit.) But where, as here, the words of the statute are inherently ambiguous, our task is to “look diligently for the intent of the General Assembly.” (Cit.)’ [Cit.]” State v. Mulkey, 252 Ga. 201, 202 (2) (312 SE2d 601) (1984).

We find that the legislative intent behind OCGA § 16-13-30 (d) and the purpose for its enactment is to deter repeat offenders of certain drug crimes enumerated in OCGA § 16-13-30 (b) and to segregate persons who have two convictions of such offenses from the rest of society for an extended period of time. See Grant v. State, 258 Ga. 299, 300 (368 SE2d 737) (1988). The language employed by the General Assembly to effect this purpose is at best unclear. However, while we agree that “[a]ny criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges[, cit.] . . . [i]t is also true that the ‘. . . legislative intent will prevail over the literal import of the words.’ [Cit.]” Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509) (1977). Furthermore, “ ‘[i]t is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cit.] ‘The construction must square with common sense and sound reasoning.’ [Cit.]” Mulkey, supra at 204.

Accordingly, we construe OCGA § 16-13-30 (d) to mean that a person who has been convicted of and sentenced for violation of an offense set forth in OCGA § 16-13-30 (b) must receive a sentence of life imprisonment upon his or her second or subsequent conviction of an offense under subsection (b). Our interpretation, while it does not give precedence to the literal words of the statute, comports with the legislative intent. To construe OCGA § 16-13-30 (d) in the manner proposed by appellant so as to place the statute’s emphasis on the number of the accused’s “offenses” rather than on the number of “convictions” could produce the unreasonable and unconstitutional result of mandating a life sentence where a defendant, charged with a second violation of OCGA § 16-13-30 (b), is convicted of the later, “second” offense despite the fact that trial has not yet been had on the “first” offense or despite acquittal on the first offense.

We find no merit in appellant’s argument that we must prefer his construction of the statute over any other construction because OCGA § 16-13-30 (d), as a criminal statute, should be interpreted to favor him, the accused, and not the State. “Though criminal statutes are to be construed strictly against the State, they are also to be construed so as to give legislative intent precedence over the literal import of words and to avoid unreasonable or illogical results. [Cits.]” Felker v. State, 172 Ga. App. 492, 493-494 (1) (323 SE2d 817) (1984).

Based upon our interpretation of the sentencing provision in OCGA § 16-13-30 (d), we find no error in the trial court’s determination that appellant’s conviction on the June 19th offense constituted a second conviction for an offense in violation of OCGA § 16-13-30 (b).

3. In his remaining enumerations appellant asserts numerous errors in the imposition of and the length of the sentence rendered on his June 19th offense.

First, we do not agree with appellant that anything in Parker v. State, 188 Ga. App. 738 (374 SE2d 230) (1988) requires reversal of this case. The holding in Parker was based on language in the first offender sentence form (i.e., that “the defendant has been found guilty of the above-stated offense”) which the record here clearly reveals was stricken from appellant’s first offender sentence form, thereby utterly distinguishing that opinion from the case sub judice.

Next, appellant correctly notes that the language in his probation order, providing that if his probation was revoked “the Court may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law,” is identical to language in the probation order form discussed in Stephens v. State, 245 Ga. 835, 837 (268 SE2d 330) (1980). However, we do not agree with appellant that the holding in Stephens requires reversal here because, unlike the probation order form in Stephens, the record reflects that the probation order form executed by appellant did inform him that an increased sentence could be imposed because of the provision “that upon violation of the terms of probation, the Court may enter an adjudication of guilt and proceed to sentence defendant to the maximum sentence provided by law.” Since unlike the defendant in Stephens, supra, appellant was “informed to the contrary [that violation of his first offender probation could result in him receiving the maximum sentence] when [his] sentence [was] imposed,” id. at 838, we find no error in the trial court’s sentence in excess of the sentence originally imposed.

Finally, it is clear that at the time appellant pled guilty to the June 19th offense of possession of cocaine with intent to distribute, appellant had never been convicted for any other offense under OCGA § 16-13-30 (b) (thereby entitling him to consent to first offender treatment). Hence, the punishment for that offense was imprisonment for not less than five years nor more than 30 years. OCGA § 16-13-30 (d). However, when sentence was entered on that offense after appellant violated the terms of his probation by committing and being convicted for the December 8th offense, that conviction on the December 8th offense meant appellant’s conviction on the June 19th offense was his second conviction of an OCGA § 16-13-30 (b) offense for purposes of sentencing him under OCGA § 16-13-30 (d), see Division 2, supra, with the result that a sentence of imprisonment for life was mandated. Id. See Grant, supra. Appellant, however, argues that he should have been sentenced to no more than the maximum sentence provided by law at the time appellant pled guilty (i.e., 30 years).

“It is obvious that the General Assembly intended the first offender probation to have a different effect than probation in other cases. Any probationary sentence entered under this Act is preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction. If, however, such offender does not take advantage of such opportunity for rehabilitation, his trial which has, in effect, been suspended is continued and an adjudication of guilt is made and a sentence entered. Unlike other probated sentences the defendant is not merely serving his sentence outside the confines of prison, but is serving a period on probation to determine whether or not the prisoner may be rehabilitated.

“If, by violating the terms of his probation, the defendant shows that he is not worthy of the offered opportunity for rehabilitation then, and only then is he sentenced to the penitentiary. No former adjudication of guilt having been made and no prior sentence having been entered thereon, the defendant is subject to receive any sentence permitted by law for the offense he has been found guilty of committing.” (Emphasis supplied.) State v. Wiley, 233 Ga. 316, 317-318 (210 SE2d 790) (1974).

The law requires the defendant to consent to first offender treatment. OCGA § 42-8-60 (a). The record establishes that appellant was informed before he consented to such treatment that if he violated the terms of his probation the trial court would “enter an adjudication of guilt and proceed to sentence [appellant] to the maximum sentence provided by law,” and the mandatory life imprisonment provision of OCGA § 16-13-30 (d) was in effect at the time appellant consented to first offender treatment. OCGA § 42-8-60 (b) provides that “[u]pon violation by the defendant of the terms of probation [ or] upon a conviction for another crime during the period of probation, . . . the court may enter an adjudication of guilt and proceed as otherwise provided by law.” (Emphasis supplied.) Since the law in the case sub judice, OCGA § 16-13-30 (d), mandates a sentence of life imprisonment upon a second conviction for possessing cocaine with the intent to distribute, see Grant, supra, and appellant had previously been convicted of possessing cocaine with the intent to distribute as to the December 8th offense, the trial court properly proceeded according to the law by following the mandatory sentencing provision of OCGA § 16-13-30 (d) when sentencing appellant on the June 19th offense. Accordingly, we find the trial court did not err by entering the sentence of life imprisonment in the case sub judice.

Decided July 1, 1991

Reconsideration denied July 15, 1991

Henry G. Smith, Jr., for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

On Motion for Reconsideration.

Appellant contends our holding is erroneous because the record reveals he did not know he could receive the maximum sentence provided by law upon violation of the terms of his probation in that the December 5, 1989 probation order form, which clearly set forth that matter, does not reflect his signature in the space provided. However, the record also contains appellant’s traverse to a motion made by the State (regarding a matter not in issue here) and an affidavit by appellant’s attorney admitting that the December 5th document correctly reflected what appellant and the State negotiated. Accordingly, we find no merit in appellant’s argument disclaiming knowledge of that document’s contents.

Motion for reconsideration denied.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0514.
    MOORE v. SERVICE MERCHANDISE COMPANY et al.
    (408 SE2d 480)
   Andrews, Judge.

Moore, a driver for United Parcel Service, appeals the grant of summary judgment to Service Merchandise and its landlord Candler Development Company in his suit for injuries resulting from a fall while making a delivery to Service Merchandise.

Viewed in favor of Moore, opponent of summary judgment, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence was that, as part of his regular route, Moore had been making two stops a day at Service Merchandise for a year prior to the accident in October 1988. He made a delivery stop in the morning and a pickup stop in the afternoon. On several of these visits, Moore had observed that, during and after rain, the roof over the loading dock where he parked his truck leaked, causing numerous puddles on the concrete loading dock and wetness over most of it. On at least one occasion, Moore had complained to his supervisor at UPS about the presence of the standing water. Deliveries and pickups could be made at Service Merchandise by walking over the loading dock into the warehouse, as Moore did here, using the pedestrian entrance to the warehouse to the side, or entering the doors of the retail store and going to the warehouse section. No one had ever restricted Moore to use of the loading dock for this purpose and other UPS drivers had used the other entrances.

When it had rained on other occasions while Moore made his pickup, he waited in the truck and Service Merchandise employees handed him the packages so he did not have to traverse the dock. On the day he was injured, the other employees were involved in unloading another truck and Moore did his own pickup rather than wait for them. He had already carried one load across the loading dock through the puddle into his truck before he fell on the next trip. He slipped in a puddle and fell into his truck, injuring his knee.

In order to recover in a slip and fall case, the plaintiff must show that (1) the defendant had actual or constructive knowledge of the foreign substance and (2) plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

Here, there is no question that Service Merchandise knew of the condition of the roof and the fact that the loading dock became wet during and after rain. Likewise, however, there is no question that Moore also knew about the condition and had, in fact, complained to his supervisor about it. Further, on prior trips, he had chosen to remain in his truck rather than traverse the area while it was wet. Acknowledging this, Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 159 (342 SE2d 468) (1986), Moore asserted in opposition to the motions for summary judgment that there remained an issue of whether the “rule of necessity” as explained in Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989) applied and created a jury issue.

Decided July 2, 1991

Reconsideration denied July 15, 1991.

Morse & Ontal, Jack O. Morse, for appellant.

DeVille, McNatt & Halberg, Blake D. Halberg, Alston & Bird, Peter M. Degnan, James C. Grant, for appellees.

That case had, as its foundation, the statutory duty of care imposed upon a residential landlord by housing codes and other laws to ensure the safety of his tenant. Without that as a cornerstone, the argument of Moore based on Thompson is not applicable here.

There is in place, however, a principle developed under the assumption of the risk theory that applies. “[T]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury. [Cit.]” Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979).

There is no evidence here that Moore was so limited in his freedom of choice. His own testimony was that on previous occasions he had exercised that choice and remained in his truck while Service Merchandise employees handed him packages. On this occasion, he chose not to without coercion or removal of that option or others by defendants.

“This is a ‘plain, palpable, and indisputable’ case not calling for resolution by a jury.” Favour v. Food Lion, 193 Ga. App. 750, 751 (389 SE2d 22) (1989); Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991).

Judgment affirmed.

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


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A0532.
    SMITH et al. v. NORTH FULTON MEDICAL CENTER.
    (408 SE2d 468)
   McMurray, Presiding Judge.

Addie Smith (plaintiff) brought an action against North Fulton Medical Center (defendant), seeking damages for injuries she allegedly sustained while a patient at defendant’s hospital. Plaintiff alleged that she was injured when she fell from her hospital bed; that “[b]oth rails of the bed were improperly positioned ... at the time of the fall[; that] Defendant was charged with the duty of using due and proper care in . . . diagnosing, treating, caring and attending [plaintiff and that, contrary] to this duty, Defendant by and through its agents and/or employees was negligent in the care and supervision which [it] rendered to Plaintiff. ...”

Defendant denied the material allegations of the complaint and defended on the ground that plaintiff failed to file an expert’s affidavit supporting any claim of nursing malpractice. Defendant subsequently filed an OCGA § 9-11-9.1 motion to dismiss and a motion for summary judgment with supporting evidence, challenging any claims of negligence and nursing malpractice. Plaintiff responded with a brief and argued that an expert affidavit is not necessary because her complaint is for “ordinary negligence.” Plaintiff also filed an amended complaint for professional malpractice and included the affidavit of a registered nurse who deposed that defendant’s nursing staff deviated from the requisite standard of care in watching over plaintiff at the time of the alleged fall.

The trial court granted defendant’s OCGA § 9-11-9.1 motion to dismiss and motion for summary judgment and directed “the Clerk ... to mark the docket DISMISSED WITH PREJUDICE.” This appeal followed. Held,-.

1. Plaintiff contends the trial court erred in granting defendant’s motion for summary judgment, arguing that genuine issues of material fact remain as to defendant’s liability for ordinary negligence.

“ ‘ “To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff.” (Cit.)’ (Emphasis omitted.) Waller v. Transworld Imports, 155 Ga. App. 438, 439 (271 SE2d 1) (1980); Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986).” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (2), 875 (392 SE2d 535) (1990).

In the case sub judice, the evidence shows that plaintiff was admitted to defendant’s hospital on February 15, 1987, and that her “nursing Admission Assessment” sheet indicates “yes” with respect to “SIDE RAILS” in a section labeled, “HOSPITAL ROUTINE.” There is also evidence that plaintiff fell from her hospital bed in the early morning hours of February 22,1987, and that she was heavily sedated at the time of the fall. However, there is no evidence regarding the specific circumstances of plaintiff’s fall. (No one knows how or why plaintiff fell from her hospital bed.) The evidence only authorizes findings that plaintiff’s bed rail was in the down position at the time of the alleged fall and that four nurses and a nurse’s aide were then on duty. This evidence does not demand a finding that the hospital exercised ordinary care in watching over plaintiff at the time of plaintiff’s fall and it certainly does not negate plaintiff’s claim that she was injured as a result of negligent acts or omissions on the part of defendant’s “agents and/or employees.” Consequently, to the extent that plaintiff’s complaint can be construed as setting forth a simple negligence case, the trial court erred in granting defendant’s OCGA § 9-11-9.1 motion to dismiss and motion for summary judgment. Jones v. Bates, 261 Ga. 240, 242 (403 SE2d 804). See Flowers v. Memorial Med. Center, 198 Ga. App. 651 (402 SE2d 541). Genuine issues of material fact remain as to whether defendant’s agents or employees (professional or nonprofessional) exercised ordinary care in watching over plaintiff at the time of the alleged fall.

2. Plaintiff contends the trial court erred in dismissing her medical malpractice action under OCGA § 9-11-9.1 and argues that the trial court should have considered the amended professional malpractice complaint and the supporting expert affidavit. We do not agree.

“In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). In the case sub judice, plaintiff’s original complaint can be construed as setting forth a cause of action for professional malpractice. However, plaintiff failed to contemporaneously file an expert’s affidavit setting forth at least one act or omission resulting in professional negligence. This omission was fatal to any claim of professional malpractice stemming from the original complaint.

“[I]f a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” OCGA § 9-11-9.1 (e).

In the case sub judice, defendant raised an OCGA § 9-11-9.1 defense in response to any allegation of professional negligence in the original complaint and the record shows that plaintiff’s expert’s affidavit was not available prior to the filing of the original complaint. Consequently, the trial court did not err in refusing to sustain any claim of professional malpractice based on the untimely affidavit included with the amended complaint. See St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 154, fns. 1, 2 (377 SE2d 847).

3. Plaintiff contends the trial court erred in granting summary judgment, dismissing any medical malpractice claim with prejudice. See Robinson v. Starr, 197 Ga. App. 440, 441 (2) (398 SE2d 714).

The two-year limitation period for any claim of professional malpractice stemming from plaintiff’s alleged February 22, 1987, fall has expired. OCGA § 9-3-71. See St. Joseph’s Hosp. v. Mattair, 239 Ga. 674 (1) (238 SE2d 366). Consequently, plaintiff cannot dismiss the original complaint and successfully refile an action for professional malpractice. It is therefore unnecessary to determine whether the trial court erred in granting summary judgment for defendant on any claim for professional negligence.

Judgment affirmed in part and reversed in part.

Banke, P. J., Birdsong, P. J., Pope and Beasley, JJ., concur. Carley, J., concurs in Divisions 1 and 2 and in the judgment. Sognier, C. J., and Andrews, J., dissent. Cooper, J., disqualified.

Andrews, Judge,

dissenting.

I agree with the disposition of the professional negligence claim, but dissent because I believe the trial court also properly granted summary judgment as to any claim for ordinary negligence.

In the initial complaint, Smith alleged that, because “[b]oth rails of the bed were improperly positioned and not raised all the way up” when she fell out of her bed, the hospital was negligent in its duty to provide proper care and supervision. Although the complaint specifically stated the alleged negligent placement of the side rails, it made only a general allegation as to who at the hospital was responsible for the alleged negligent act or omission, stating: “Contrary to this duty, Defendant [hospital] by and through its agents and/or employees was negligent in the care and supervision which they rendered to Plaintiff.”

In its initial defensive pleadings the hospital raised the failure of Smith to file an expert affidavit with the complaint pursuant to OCGA § 9-11-9.1, and subsequently moved for dismissal on the basis that the complaint could be construed as alleging professional negligence by nurses employed by the hospital and was unsupported by an expert affidavit. The hospital contemporaneously moved for total summary judgment on all claims whether for professional negligence or ordinary negligence. After the hospital’s motions were filed, Smith filed an amended complaint attempting to add a count specifically alleging professional negligence by the hospital’s nursing staff. The trial court granted the hospital’s motion to dismiss and motion for summary judgment, and Smith appealed from these rulings.

Smith argued that the grant of total summary judgment was error because, under the general allegations of her complaint, she stated a claim for ordinary negligence on which genuine issues of fact remain. She claims questions of fact exist as to ordinary negligence on two grounds: (1) that the nurses themselves could have been guilty of ordinary negligence, or (2) that she may possibly have proved other non-nursing or non-professional hospital employees could have negligently lowered or failed to raise the side rails. The record does not support the claim that any genuine issue of fact remains on these grounds, and the trial court properly granted summary judgment on any claim based on ordinary negligence.

The record reflects that, in the absence of a physician’s order, the decision to have the side rails in a raised or lowered position was made by the nursing staff based on the patient’s medical condition. Smith was under sedative medication and there is no evidence of a physician’s order with respect to side rails. When Smith was admitted to the hospital a written nursing admission assessment indicated a “yes” with respect to side rails. Subsequent to the initial assessment, the medical records show nursing notations for each eight-hour shift reflecting various changing positions of the side rails. At the time of the fall, evidence shows that only one side rail was in the up position. On the night of the fall, four registered nurses were on duty for Smith’s floor, along with one nurse’s aide. There is no evidence that other hospital employees were present on the floor. With respect to who may have raised or lowered Smith’s side rails, the only evidence is deposition testimony of the shift charge nurse as follows:

“Q. Whose decision was it just to put one side of Mrs. Smith’s bed up on the evening of February 21st, ’87?

“A. It would be the nurse’s.”

The practice of nursing is recognized as a profession subject to its own general standards of care and qualifications. OCGA § 43-26-1 et seq. (registered nurses); Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 456-457 (349 SE2d 756) (1986). A decision by a nurse to place the side rails in an up or down position requires the exercise of professional expertise based on an evaluation of the patient’s condition. Smith argues that this is a simple negligence case since, once the initial nursing assessment was made to raise the side rails, any subsequent action taken by nurses with respect to the side rails was merely a physical action taken to carry out the expert assessment, and required no professional expertise. However, this case differs from Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110-111 (354 SE2d 872) (1987), where a patient was injured when moved by a nurse from a stretcher to a wheelchair. There, the court determined that carrying out a medical decision to move the patient was “merely an act of relative physical strength and dexterity” rather than an act requiring professional judgment. Id. at 110. Here, the allegation of negligence was not that the mere physical act of lowering the side rails was done in a negligent manner, but that the side rails were in the down position when they should have been up. When applied to nurses at the hospital, this allegation calls into question the exercise of their professional judgment on the placement of the side rails, and, therefore, states a professional negligence claim requiring proof by expert testimony, rather than a claim for ordinary negligence. General Hosp. of Humana v. Bentley, 184 Ga. App. 489, 490-491 (361 SE2d 718) (1987); OCGA § 9-11-9.1.

As to claims that non-nursing or non-professional hospital personnel could have been guilty of simple negligence, the record is devoid of any indication that such personnel were involved in adjusting the side rails. To the contrary, though one of the hospital’s nurses deposed that a nurse’s aide was on duty, she also indicated that it was the nurses’ decision to lower or raise the side rails. Furthermore, the nursing routine flowsheets in the medical records reflect the shift-to-shift monitoring of the side rails by the nursing staff. The affidavit of the plaintiff’s non-treating nurse expert, who had no personal knowledge of the present case, to the effect that side rails could have been adjusted by non-professionals is pure speculation, and sets forth no specific facts necessary to create a factual issue on summary judgment in response to the evidence produced by the hospital. Levine v. First Bank of Savannah, 154 Ga. App. 730, 731 (270 SE2d 20) (1980).

The trial judge correctly concluded that there were no genuine issues of fact with respect to ordinary negligence. On summary judgment, a responding party may not rest upon the allegations in the pleadings, but must set forth specific facts by affidavit or otherwise to show there is a genuine issue for trial. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974); OCGA § 9-11-56 (e). Smith failed to come forward with specific facts to rebut the record evidence that nurses placed the side rails, and to thus substantiate the possibility that the alleged negligence was attributable to nonprofessional hospital employees.

The majority finds summary judgment on ordinary negligence inappropriate because the record does not conclusively establish how or why Smith fell out of her bed, but only that the side rail was in the down position at the time of the fall, and that the nurses and a nurse’s aide were on duty. Since the record does not establish the specific circumstances of the defendant’s fall, by stating that the evidence does not demand a finding that the hospital exercised ordinary care in watching over Smith, and does not negate Smith’s claim that the hospital’s agents or employees negligently injured her, the majority may be implicitly relying on the doctrine of res ipsa loquitur to conclude that a genuine issue of fact exists. See Bridgestone Firestone v. Green, 198 Ga. App. 858, 860-861 (403 SE2d 442) (1991). Even if the elements of that doctrine are present here, it does not apply. Smith alleged in her complaint that the negligent placement of the side rails caused her injury. On summary judgment, the defendant hospital made a prima facie showing that the nurses, and not any other hospital employees, placed the side rails, and that in doing so they acted within the realm of their professional expertise. When Smith offered no rebuttal to this showing, it was established as a matter of law that, however the negligent act or omission may have occurred, it was attributable to nurses acting within the scope of their expertise. See Stipp v. Bailey, 181 Ga. App. 555, 556 (353 SE2d 52) (1987). Despite the lack of evidence as to how the injury occurred, res ipsa loquitur might have been invoked to establish a question of fact as to the nurses’ professional negligence. However, Smith is precluded from suing the hospital based on the professional negligence of its nurses because she failed to file an expert affidavit, so the doctrine is of no assistance.

Decided June 28, 1991

Reconsideration denied July 15, 1991

Ellerin & Associates, Irwin M. Ellerin, Denise A. Hinds, Heidi Koch, for appellants.

Sullivan, Hall, Booth & Smith, Timothy H. Bendin, for appellee.

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

       Johnie C. Smith is a party to the complaint and he seeks damages, alleging that he is plaintiffs spouse.

       “The elements of the doctrine are: (l) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Citations and punctuation omitted.) Bridgestone, supra at 861.


author: Beasley, Judge.

text:
    A91A0607.
    SLATER et al. v. BLOUNT et al.
    (408 SE2d 433)
   Beasley, Judge.

Slater and Trull appeal from the dismissal of their complaint for nonperfection of service on defendant Blount and plaintiffs’ uninsured motorists carrier, Auto-Owners Insurance Company, within the statute of limitation.

On June 11, 1987, Slater and Trull were occupants of a vehicle which collided with one driven by Blount. On July 18,1988, they filed suit for personal injuries against Blount in Gwinnett County but were unable to obtain service upon him. In December the case was dismissed without prejudice for lack of prosecution. On March 21, 1989, suit was refiled in Gwinnett, and Auto-Owners was served by duplicate original on April 10. See OCGA § 33-7-11 (d).

On April 18 Slater and Trull also filed an action against Blount in Clayton County based on information that he was residing there. On April 19 notorious service was obtained upon Blount by leaving a copy of the complaint and summons with Peggy Vinson at the place in Clayton County where Blount allegedly resided. An affidavit by Blount’s wife set out that on April 15 Blount permanently left his marital residence in Clayton County and moved to Florida. According to affiant, the location where service was attempted was an apartment or duplex and Peggy Vinson was the landlord who did not reside there.

On August 1 Slater and Trull dismissed the Gwinnett suit without prejudice and on August 9 served Auto-Owners by duplicate original with the Clayton suit. Auto-Owners answered, raising jurisdictional defenses on behalf of it and Blount, and in January Blount made a special appearance to move to dismiss the complaint for lack of personal service upon him. Plaintiffs responded by asserting that the motion to dismiss was not timely and asserted by affidavit of a sheriff’s deputy that, as a matter of official policy, service was not made upon anyone who did not reside at the premises where service was sought to be accomplished.

On March 19 a hearing was held on the motion. Although the order entered as a result of that hearing is not included in the record, the trial court’s later order of July 27 recites that the court found “that no service of the complaint and summons had been perfected upon the defendant, . . . Blount, inasmuch as the purported service had occurred at a place determined not to have been his dwelling house or usual place of abode and further had been left with a person not residing within said place of abode where such purported service took place. At said hearing . . ., the court reserved ruling on pending motions until plaintiffs could be afforded further opportunity to perfect service personally or by publication upon defendant.”

On April 30 plaintiffs obtained the court’s permission for service by publication under OCGA § 9-11-4 (e) (1) (A). The trial court’s order recited that defendant Blount “cannot after due diligence be found within the State or is concealing himself to avoid service of the summons . . . and that service by publication is appropriate.” On July 27 the court determined that although service by publication was accomplished it did not occur until almost one year after the expiration of the statute of limitation that the statute of limitation had lapsed approximately 60 days before Auto-Owners was served; that plaintiffs had not been diligent in their efforts to serve Auto-Owners and Blount. The court held that Auto-Owners was entitled to judgment as a matter of law, granting it summary judgment, and that Blount was entitled to the dismissal of the complaint, granting his motion. Appeal is from that judgment.

Certain basic legal principles are applicable. “Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if ‘the plaintiff (shows) that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.’ ” Forsyth v. Brazil, 169 Ga. App. 438 (313 SE2d 138) (1984), quoting Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975). The burden rests on the plaintiffs to show lack of fault. Scoggins v. State Farm &c. Ins. Co., 156 Ga. App. 408 (274 SE2d 775) (1980). The trial court must look at all the facts and ascertain whether the plaintiffs were guilty of laches. Smith v. Griggs, 164 Ga. App. 15 (296 SE2d 87) (1982). The court’s discretion in ascertaining if there was due diligence will not be disturbed absent abuse. Forsyth, supra at 439; Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792) (1986).

1. Auto-Owners was served in the Clayton suit about 60 days after the expiration of the statute of limitation. Plaintiffs argue that because Auto-Owners had been served in Gwinnett in April, well before the limitation period had expired, their action in serving it within nine days after they had dismissed the Gwinnett suit showed their exercise of due diligence.

OCGA § 9-2-5 prohibits the prosecution of two actions and provides that the pendency of one shall be a good defense to a subsequent one. The proper procedure was for plaintiffs to dismiss the Gwinnett suit and then refile in Clayton. See OCGA § 9-2-61 (a). Although there was no objection based upon pendency of another suit, plaintiff’s faulty delay in dismissing the Gwinnett suit occasioned the failure to serve Auto-Owners until almost four months after filing the Clayton suit on April 18. The record is devoid of any legitimate justification.

Despite plaintiffs’ argument with respect to the insurer, knowledge otherwise obtained by a defendant regarding the filing of the suit does not dispense with the necessity for obtaining service. Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989).

It was not error to grant judgment to Auto-Owners.

2. Appeal of the grant of Blount’s motion to dismiss requires review of the trial court’s exercise of discretion. The question to be determined was whether plaintiffs exercised diligence in attempting to insure that service was obtained as quickly as possible. Watters v. Classon, 193 Ga. App. 493 (388 SE2d 397) (1989).

Decided June 19, 1991

Reconsideration denied July 15, 1991

L. David Wolfe & Associates, L. David Wolfe, for appellants.

Bonnie C. Oliver, Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, Sharon C. Barnes, for appellees.

The trial court based its ruling on the total lapse of time from the date the statute of limitation expired until service by publication was obtained. However, only March 19 to April 27 was a pertinent time period because, until the trial court ruled that the earlier service was ineffective, there was no reason for plaintiffs to seek additional service. The court apparently recognized this when it gave plaintiffs additional time to perfect service. See Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550 (398 SE2d 792) (1990). Charging plaintiffs with the entire time of “almost one year” did not realistically consider whether they were guilty of laches or did not exercise due diligence; relevant instead was the time period from the order finding that the prior service was ineffective until the plaintiffs sought approval of their request for service by publication. Compare Green v. Young, 197 Ga. App. 101 (397 SE2d 509) (1990), where the first service was by publication.

Defendant Blount argues that, even considering only the time from March 19 to April 27, plaintiffs were not diligent. However, because the trial court did not rest its decision on that basis, neither can we. Where a ruling of the trial court, which ordinarily is within its sound discretion, shows that no discretion was exercised, reversal results. Ray v. Dept. of Human Resources, 155 Ga. App. 81, 85 (270 SE2d 303) (1980); Childs, supra at 783. That being the case, the judgment is reversed and the cause remanded for a decision on that issue.

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

Banke, P. J., and Corley, J., concur.


text:
    A91A0620.
    CHASTAIN v. THE STATE.
    (408 SE2d 421)
   McMurray, Presiding Judge.

Defendant was convicted of trafficking in cocaine. He appeals following the denial of his motion for a new trial. Held:

1. Defendant submitted a written request for a charge on “good character.” Taking the stand, defendant testified, inter alia, that he was awarded custody of his minor children; that they had been in his custody for three years; that he had never been convicted of a cocaine offense; that he had never been convicted of a drug offense; and that he received only one traffic ticket (for speeding) 20 years previously.

Stating that defendant’s testimony would entitle the State to introduce evidence of bad character, the trial court nevertheless refused to charge the jury on “good character.” Defendant enumerates error on the trial court’s refusal to give a “good character” charge.

In Braddy v. State, 172 Ga. App. 386 (323 SE2d 219), aff’d State v. Braddy, 254 Ga. 366 (330 SE2d 338), defendant testified that he was an active church member and that he had never been charged with or convicted of a criminal offense. Based on his testimony, that defendant requested a charge on good character. The trial court ruled that defendant’s testimony opened the door for bad character evidence. Nevertheless, the trial court refused to give a good character charge. Finding that defendant clearly elected to place his good character in issue, a majority of this Court and the Supreme Court of Georgia held that the trial court erred by failing to give a “good character” charge. Braddy v. State, 172 Ga. App. 386, supra, aff’d State v. Braddy, 254 Ga. 366, supra.

Braddy is controlling here. It is clear that, as in Braddy, defendant in the case sub judice elected to place his character in issue. He even requested a charge on good character. Moreover, as in Braddy, the trial court recognized that defendant’s testimony opened the door to bad character evidence. It cannot be said, therefore, that defendant inadvertently placed his character in issue. Compare Jones v. State, 257 Ga. 753 (363 SE2d 529). The trial court erred in failing to charge the jury on good character. State v. Braddy, 254 Ga. 366, supra. Defendant must be tried again.

2. In his second enumeration of error, defendant contends the trial court erred in denying his motion to suppress evidence. In this regard, he takes the position that the affidavit for the search warrant was insufficient because the affiant based the affidavit on information he received from other police officers. This contention is without merit. “ ‘Observations by fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.’ United States v. Ventresca, 380 U. S. 102, 111 (85 SC 741, 13 LE2d 684) [(1965)]. See also Matthews v. State, 236 Ga. 867, 870 (225 SE2d 896) (1976).” Mitchell v. State, 239 Ga. 456, 458 (238 SE2d 100).

Judgment reversed.

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

Andrews, Judge,

concurring specially.

I concur because, as stated by the majority, Braddy v. State, 172 Ga. App. 386 (323 SE2d 219), aff’d State v. Braddy, 254 Ga. 366 (330 SE2d 338), is controlling here. I must state, however, that Braddy, as applied to the facts of this case, trivializes the “good character” defense.

Decided June 5, 1991

Reconsideration denied July 15, 1991

Chance, Maddox & Smith, David K. Smith, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Sharon A. Moyer, Assistant District Attorneys, for appellee.


author: Banke, Presiding Judge.

text:
    A91A0650.
    LIROUSA v. THE STATE.
    (408 SE2d 436)
   Banke, Presiding Judge.

The appellant brings this appeal from the denial of his motion for new trial following his conviction of trafficking in cocaine. His sole enumeration of error is directed to the trial court’s denial of his motion to suppress the cocaine on which the prosecution was based.

While driving north on Interstate 75 accompanied by a male companion and two female companions in an automobile owned by one of the female companions, the appellant stopped at a rest area just south of Calhoun, Georgia. A Georgia state patrolman observed the vehicle parked there with its hood up; and after activating a video camera in his vehicle, he approached it and asked the appellant and his male companion, both of whom were looking under the hood of the vehicle at the time, if they needed assistance. The male companion responded that they were just checking the oil, following which the trooper remained there conversing with them. The trooper testified that he became suspicious because the appellant and his companions gave differing reasons for their trip and because the woman who owned the vehicle stated that she had purchased it in Milwaukee just five days earlier but had not driven it because she had no driver’s license. He accordingly asked the woman for permission to search it; and after consulting with the others, she agreed, both orally and in writing. However, before the trooper commenced the search, a maintenance man who worked at the rest area motioned for him to examine the contents of a trash can located in front of the vehicle. Upon doing so, the trooper discovered a brown paper bag containing approximately one kilogram of cocaine. (The videotape made by the camera in the trooper’s vehicle revealed that one of the appellant’s companions had placed the bag in the trash can while the trooper was not looking.) The ensuing search of the vehicle resulted in the discovery of a piece of brown paper containing cocaine residue which appeared to have been torn from the bag containing the cocaine. In denying the appellant’s motion to suppress, the trial judge determined that the cocaine in the trash can constituted abandoned property and that the appellant had no standing to challenge the search of the vehicle due to his lack of any possessory interest in it. The appellant’s three codefendants pled guilty and testified against him at trial. Held:

Decided June 19, 1991

Reconsideration denied July 15, 1991.

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

The trooper clearly was entitled to treat the contents of the trash can as abandoned property. See generally Evans v. State, 192 Ga. App. 832, 834 (6) (386 SE2d 712) (1989). Pretermitting whether the discovery of this evidence established probable cause for a search of the vehicle, the trial court correctly concluded that, since its owner was present and consented to the search, the appellant’s status as driver did not operate to give him any possessory interest in the vehicle. Rather, his status under the circumstances was equivalent to that of a “mere passenger,” with the result that he did not have authority to prevent the owner from consenting to the search. Garcia v. State, 187 Ga. App. 166, 168 (7) (369 SE2d 776) (1988). Accordingly, the trial court did not err in denying his motion to suppress.

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0836.
    ARNOLD v. THE STATE.
    (408 SE2d 447)
   Banke, Presiding Judge.

The appellant was convicted of two counts of theft by receiving stolen property based on evidence that he and a co-defendant, Gresham, had been found in possession of a stolen automobile bearing a license tag which had itself been stolen from another vehicle. The case is before us on appeal from the denial of the appellant’s motion for new trial. Held:

1. The arresting officer testified that he confronted the appellant and Gresham as they were seated in the vehicle in question and ordered them to get out. He stated that the appellant fled on foot upon exiting the vehicle but that Gresham remained at the scene and “identified him [the appellant] as being the suspect in the car.” The appellant moved for a mistrial at this time on the ground that the latter portion of the officer’s testimony violated an earlier ruling by the trial court granting his (the appellant’s) motion in limine seeking to exclude evidence of such out-of-court statements by Gresham on the ground that they would be violative of his Sixth Amendment right of confrontation under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), “if Mr. Gresham is not available for cross-examination.” Although the appellant contends on appeal that the denial of this motion for mistrial constituted reversible error, it does not appear that the motion was in fact denied. Instead, the court reserved its ruling on the motion, and no ruling was thereafter elicited by the appellant. See generally Dover v. State, 250 Ga. 209, 212 (4) (296 SE2d 710) (1982). In any event, Gresham later took the stand and testified, thereby making himself available for cross-examination and eliminating the basis for the Bruton objection. See Holloway v. State, 168 Ga. App. 294, 296 (4) (308 SE2d 641) (1983); Mitchell v. State, 195 Ga. App. 255 (2), 259 (393 SE2d 274) (1990).

2. The appellant again moved for a mistrial when asked by Gresham’s counsel on cross-examination whether he had been in possession of a stolen car when he was arrested the day following Gresham’s arrest. However, the appellant specified at trial that this motion was conditional upon his being convicted by the jury. Obviously, he could not have it both ways — i.e., he could not seek simultaneously both to proceed to a jury verdict and to terminate the trial on the ground that the jurors had been prejudiced by an improper question. In any event, after denying the motion, the trial court instructed the jury to disregard the question. Although the appellant later renewed the motion, by the time he did so, the evidence had closed and the jury had been charged. It is highly doubtful under these circumstances that the appellant’s attempt to renew his motion for mistrial would have been effective, even had his original motion been valid. See McLendon v. State, 181 Ga. App. 851 (354 SE2d 193) (1987). See generally Powell v. State, 185 Ga. App. 464, 465 (2) (364 SE2d 599) (1988). However, pretermitting these issues, we hold that the curative instructions given by the trial court were amply sufficient under the circumstances to eliminate any improper prejudice which might have resulted from the question. See generally Cox v. State, 109 Ga. App. 797 (1) (137 SE2d 516) (1964).

3. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the two offenses of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Beasley, JJ., concur.

Decided June 24, 1991

Reconsideration denied July 15, 1991

Charles J. Durrance, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Assistant District Attorneys, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A1660.
    HYZER et al. v. HICKMAN. SHEAN v. HICKMAN.
    A89A1661.
    (409 SE2d 93)
    Decided July 15, 1991.

      Johnson & Montgomery, Harmon W. Caldwell, Jr., Wade H. Watson III, for appellants (case no. A89A1660).

      Smith, Currie & Hancock, D. Lee Roberts, Jr., for appellant (case no. A89A1661).

      Heyman & Sizemore, William H. Major, William B. Brown, for appellee.
   McMurray, Presiding Judge.

The Supreme Court of Georgia in Hickman v. Hyzer, 261 Ga. 38 (401 SE2d 738), having reversed this Court’s prior judgments in these cases, the judgments of this Court in Hyzer v. Hickman and Shean v. Hickman, 195 Ga. App. 213 (393 SE2d 79), are vacated, and the judgments of the trial court are hereby affirmed.

Judgments affirmed.

Sognier, C. J., Banke, P. J., Birdsong, P. J., Carley, Pope, Beasley, Cooper and Andrews, JJ., concur.


author: Carley, Judge.

text:
    A91A0296.
    CASTELLON v. THE STATE.
    (408 SE2d 493)
   Carley, Judge.

Appellant was tried before a jury and found guilty of possession of tools for the commission of a crime and seven counts of burglary. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdict.

1. The State tendered for admission into evidence several photographs of items that had been seized during a post-arrest search of appellant’s home. At least one of the items in each of the photographs was identified as having been stolen in a burglary for which appellant was being tried. However, appellant objected to the admission of any of the photographs, urging that they were inadmissible since all of the items therein had not been identified as having been stolen in a burglary for which he was being tried. The trial court’s failure to sustain this objection to the admission of the photographs is enumerated as error.

“The fact that certain portions of a [photograph may have been] subject to objection will not prevent the [photograph] from being placed in evidence.” Kansas City Life Ins. Co. v. Williams, 62 Ga. App. 707, 709 (9 SE2d 680) (1940). Upon the tender of demonstrative or documentary evidence, “ ‘part of which is admissible and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit it all.’ [Cits.]” State Farm Mut. Auto. Ins. Co. v. Rogers, 105 Ga. App. 778, 781 (1) (125 SE2d 893) (1962). Accordingly, even assuming that certain items in the photographs may not have been shown to be directly relevant to appellant’s instant prosecution, it was not error to fail to sustain the objection to the admission of the photographs in their entirety.

2. Appellant enumerates as error the trial court’s giving of a charge on flight, urging that such a charge was not authorized by the evidence. In cases tried after January 10, 1991, “while the [S]tate may offer evidence of and argue flight, it shall be [reversible] error for a trial court in a criminal case to charge the jury on flight.” Renner v. State, 260 Ga. 515, 518 (3b) (397 SE2d 683) (1990). However, the instant case was tried before that date. Accordingly, this enumeration of error must be addressed on the merits of appellant’s contention that there was no evidentiary support for the giving of a charge on flight.

The evidence regarding the circumstances of appellant’s arrest showed the following: Over a period of several weeks, a series of burglaries of ground-level apartments in the north Fulton County area had been committed during the late morning or early afternoon hours and a uniformed officer, who had been assigned to investigate, was patrolling on foot in an apartment complex wherein one of these burglaries had occurred. At approximately 11:20 a.m., the officer turned the corner of one of the apartment buildings and observed as appellant walked toward the door to a ground-level apartment at the other end of the building. When appellant was only several feet from the apartment door, the officer’s radio “went off” and appellant’s attention was first drawn to the presence of the officer. Appellant’s immediate reaction was to turn away from the door to the apartment that had ostensibly been his destination and to start walking “extremely fast” in the opposite direction of the parking lot. The car that appellant entered matched the description of one for which the officer had been instructed to maintain a “lookout.” Having been unable to confront appellant about his suspicious actions and vehicle before he drove away, the officer followed in his patrol car. Appellant, with the officer following, then drove to the leasing office of the apartment complex, parked and went inside. The officer waited in his patrol car and radioed for assistance. Some minutes later, appellant exited the leasing office, got into his car and began to drive away. Before appellant could exit the apartment complex, however, another officer arrived and appellant was stopped. Appellant produced a driver’s license showing that he did not live in the apartment complex and he told the officers that he still resided at the address shown on his license. Having determined that appellant did not live in the apartment complex, the officers then asked the purpose of his presence in the vicinity of the apartment building where he had originally been observed. Appellant made no direct response to this inquiry, but showed the officers a brochure that he had apparently obtained in the leasing office and stated that he was looking for an apartment to rent. When further inquiry was made about appellant’s reason for originally being in the vicinity of a residential apartment building prior to his stop at the leasing office, he indicated that he did not understand the question and just pointed to the brochure. During this encounter, one of the officers observed, in plain sight on the passenger seat of appellant’s vehicle, a bag and two large screwdrivers. The screwdrivers were of the type believed to have been used to commit the previous burglaries that were under investigation. Based upon their observations and appellant’s evasive responses to their inquiries regarding his presence on the premises, the officers placed appellant under arrest for loitering or prowling in violation of OCGA § 16-11-36.

This evidence would authorize a finding that, upon being surprised by the sudden appearance of the uniformed officer, appellant chose to flee rather than to risk an immediate confrontation and, that upon being followed by the officer, he drove to the leasing office in an effort to establish an ostensibly reasonable explanation for his suspicious presence at the apartment complex. Accordingly, a charge on flight was not unauthorized. Carter v. State, 180 Ga. App. 269, 270 (2) (349 SE2d 19) (1986); Cain v. State, 178 Ga. App. 247, 249 (5) (342 SE2d 742) (1986).

3. Contrary to appellant’s contentions, there was probable cause to arrest him for a violation of OCGA § 16-11-36. Hansen v. State, 168 Ga. App. 304, 306 (2) (308 SE2d 643) (1983). Accordingly, appellant’s motion to suppress all subsequently seized evidence as the inadmissible product of his illegal arrest was correctly denied.

4. Appellant’s enumeration of the general grounds is without merit. See Howard v. State, 186 Ga. App. 7 (366 SE2d 369) (1988); Green v. State, 158 Ga. App. 321 (1) (279 SE2d 763) (1981); Shearer v. State, 128 Ga. App. 809, 810 (3) (198 SE2d 369) (1973). The evidence, when construed most favorably for the State, was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided July 15, 1991

Mark V. Cloud, for appellant.

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

Judgments affirmed.

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


author: Banke, Presiding Judge. Beasley, Judge,

text:
    A91A0431, A91A1284.
    SCOTT v. THE STATE.
    (408 SE2d 495)
   Banke, Presiding Judge.

After reversal of a first conviction for armed robbery because of an improper jury instruction, the appellant was again tried and convicted on the charge. Following the denial of his motion for new trial, the appellant filed a motion for appointment of new counsel and for leave to amend the motion for new trial. The trial judge appointed new counsel and granted the motion for leave to amend, treating it as a motion for an out-of-time appeal from the denial of the motion for new trial. The appellant’s counsel thereafter filed a notice of appeal, resulting in docketing in this court of Case No. A91A0431. Subsequently, the appellant, acting pro se, filed an extraordinary motion for new trial. Case No. A91A1284 is the appellant’s pro se appeal from the denial of that motion. Held:

1. The appeal in Case No. A91A1284 is dismissed for want of jurisdiction, based on the appellant’s failure to follow the application procedures applicable to “[a]ppeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial.” OCGA § 5-6-35 (a) (7). See Pitts v. State, 254 Ga. 298 (328 SE2d 732) (1985); McDonald v. State, 180 Ga. App. 713 (350 SE2d 581) (1986).

2. The appellant enumerates as error the denial of his motion to suppress evidence of a pre-trial photographic lineup from which the victim had identified him, contending that there were too few photographs in the array and that he was prejudiced by the fact that his photo was a mug shot. Six photographs were shown to the victim, all of which were mug shots; and the victim was able to identify the appellant and his co-defendant from this display without hesitation. The cases dealing with photographic lineups have not established a minimum number of photographs required to be included in the display but require only that the procedure not be impermissibly suggestive. The victim in the present case testified at trial that the location where the crime had occurred was well-lit and that he had been able to see his attackers clearly, notwithstanding the fact that a Mace-like substance was sprayed into his face. Cf. Moye v. State, 127 Ga. App. 338, 341 (193 SE2d 562) (1972). Based on the totality of the circumstances, the trial court was authorized to conclude from the evidence both that the photographic display was not impermissibly suggestive and that an independent basis existed for the victim’s in-court identification of the appellant. Hence, the court did not err in admitting this evidence. See generally Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); Jones v. State, 251 Ga. 361 (306 SE2d 265) (1983); Caylor v. State, 155 Ga. App. 489 (1) (270 SE2d 924) (1980).

Decided July 15, 1991.

Patrick G. Longhi, for appellant.

Lewis R. Slaton, District Attorney, Katherine B. Monahan, Jo seph J. Drolet, Assistant District Attorneys, for appellee.

3. The trial court did not err in denying the appellant’s motion for a directed verdict of acquittal. As previously indicated, the victim had promptly and unequivocally identified the appellant from the photographic display as the person who had robbed him at gunpoint. Moreover, it was shown that within a few hours after the robbery, the appellant was involved in a police chase while driving the victim’s van. The evidence, considered as a whole, was amply sufficient to enable a rational trier of fact to find the appellant guilty of armed robbery beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Acting pro se, the appellant has filed with this court a document, captioned “Motion to Amend Appellants [sic] Brief,” which seeks to afid three new enumerations of error not contained in the original brief filed in Case No. A91A0431. Inasmuch as these enumerations of error were not filed within the time allowed by Rule 14 (a) of this court, they present nothing for review. See Parham v. State, 166 Ga. App. 855 (2) (305 SE2d 599) (1983).

Judgment affirmed in Case No. A91A0431. Appeal dismissed in Case No. A91A1284.

Carley and Beasley, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1, 2, and 3. As to Division 4, even if the attempted additional enumerations of error were timely, they would not be properly presented for consideration. Appellant has no right to both represent himself and be represented by counsel. Ga. Const. 1983, Art. I, Sec. I, Par. XII. Simmons v. State, 186 Ga. App. 886 (1) (369 SE2d 36) (1988).

I am authorized to state that Judge Carley joins in this special concurrence.


text:
    A91A0849.
    ALFORD v. THE STATE.
    (408 SE2d 497)
   Sognier, Chief Judge.

Dave Alford, Jr. was tried before a Clayton County jury on charges of armed robbery and kidnapping. He was acquitted on the kidnapping charge and convicted of robbery by intimidation. He appeals from the judgment entered on the jury’s verdict.

Appellant’s sole enumeration of error is that the trial court erred by denying his motion for a directed verdict of acquittal on the armed robbery charge made on the ground that there was no evidence he was armed during the commission of the robbery. The victim testified that he was driving his car on a Clayton County road on the evening of May 2, 1990, and was stopped at a red light when appellant got into his car and ordered him to drive to a nearby apartment complex. The victim testified that although he saw no weapon, he could not see appellant’s right hand because appellant was resting his hand below the edge of the seat. When the two men arrived at the apartment complex, the victim testified, appellant struck the victim in the face with a “blunt object” the victim said felt like metal and that the victim thought was a gun. Appellant pushed the victim out of his car, struggled briefly with him, and then jumped into the driver’s seat and drove away. Both the victim and two eyewitnesses to this struggle testified they never saw appellant with a gun. As a result of the blows to his head, the victim lost three teeth and received 11 stitches in his forehead and at least ten inside his lip.

The physician who treated the victim testified that the victim’s lacerations were consistent with the victim’s statement that he was hit with a pistol, and that a fist was less likely to cause the type of injuries the victim suffered. Appellant testified he was not armed during the incident, that he struck the victim with his fist only to ward off unwanted sexual advances, and that he has a metal plate in his knuckle as a result of surgery to repair a boxing injury.

A criminal defendant is entitled to a directed verdict of acquittal only when there is no conflict in the evidence and the evidence introduced at trial, together with all reasonable deductions and inferences therefrom, demands a verdict of acquittal. Leonard v. State, 197 Ga. App. 221, 223 (3) (398 SE2d 250) (1990). We find the victim’s testimony that he was struck with a blunt metal object that he thought was a gun, combined with the evidence of the severity of his injuries and the likely cause of such injuries, constituted circumstantial evidence of “ ‘[s]ome physical manifestation of a weapon ... or some evidence from which the presence of a weapon may be inferred.’ . . . [Cit.]” Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). Compare Tate v. State, 191 Ga. App. 727, 728 (2) (382 SE2d 688) (1989). Accordingly, the trial court did not err by denying appellant’s motion for directed verdict. Since the trial court was authorized to charge the jury sua sponte on the lesser included offense of robbery by intimidation, see State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354) (1976), and given that the evidence was sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize a conviction of the offense of robbery by intimidation, see Johnson v. State, 195 Ga. App. 56, 57-58 (1) (b) (392 SE2d 280) (1990), we find no error.

Decided July 15, 1991.

Emmett J. Arnold IV, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A91A0951.
    RENEW et al. v. EDENFIELD et al.
    (408 SE2d 499)
   Birdsong, Presiding Judge.

Appellant, Donald Renew, brought suit individually and as next friend of his daughter, appellant Kimberly Renew, for personal injuries she allegedly sustained when the negligence of two truck drivers who worked for the same employer caused one of the trucks to strike a school bus in which she was riding. Appellants appeal the judgment entered in favor of defendants and the order denying their motion and amended motion for new trial. Before trial appellees entered certain admissions of liability; however, the issue of damages remained to be litigated. At trial it was strongly contested whether appellant Kimberly Renew was injured and, if so, to what extent. The jury awarded no damages to appellants/plaintiffs. Held:

1. Appellants assert the trial court erred in permitting the deposition testimony of Dr. Ridley, thus denying them their rights of cross-examination. The record reflects that appellants’ counsel took Dr. Ridley’s deposition and examined him by means of direct examination.

OCGA § 9-11-32 (a) pertinently provides: “At the trial . . . any part or all of a deposition . . . may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof. . . .” (Emphasis supplied.) “A party does not make a person his own witness for any purpose by taking his deposition.” OCGA § 9-11-32 (c). But in the event a deposition is introduced in evidence against, the party who took it, the right of rebuttal remains. “At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.” OCGA § 9-11-32 (c). Moreover, OCGA § 9-11-32 (a) provides fair notice on its face that if the criterion for admission of a deposition contained within the statute are otherwise met, the deposition “may be used against any party who [as in this case] was . . . represented at the taking” thereof. Appellants’ “contrary assertion[s] notwithstanding, we find no abridgement of his right to cross examination. . . .” Kamman v. Seabolt, 149 Ga. App. 167, 169 (7) (253 SE2d 842).

Additionally, any right of cross-examination is deemed to have been voluntarily, knowingly, and intelligently waived by conduct when long after the effective date of OCGA § 9-11-32 (a), appellants’ counsel was present at and actively participated in the taking of the deposition. See also OCGA § 1-3-6.

2. Appellants assert the trial court erred in permitting appellees to introduce evidence relating to the radiology report of a Dr. Fox who did not testify during trial. The report was not introduced in evidence, but was used as a vehicle for impeachment of a chiropractor testifying for appellants.

Although overruling appellants’ objections, the trial court gave the jury a limiting instruction which included inter alia á charge that “the matter that this witness reads ... is not to be taken by the jury as establishing, as a matter of fact, that what is read is true.”

The report as utilized constituted hearsay. Attaway v. Morris, 110 Ga. App. 873 (2) (140 SE2d 214); compare Southern Bell Tel. &c. Co. v. Franklin, 196 Ga. App. 474 (2) (396 SE2d 514) (physical precedent only); Fidelity &c. Ins. Co. v. Cigna Pacific &c. Ins. Co., 180 Ga. App. 159, 162 (1) (348 SE2d 702), and Stouffer Corp. v. Henkel, 170 Ga. App. 383, 386 (2) (317 SE2d 222). The holding of this court in Seaboard C. L. R. Co. v. Smalley, 127 Ga. App. 652, 654 (1) (194 SE2d 612) that hearsay evidence is admissible for impeachment though inadmissible for other purposes was substantially modified in McAllister v. State, 258 Ga. 795, 798 (6), n. 2 (375 SE2d 36). Miller v. State, 260 Ga. 191, 194 (6) (391 SE2d 642). Accordingly, “ ‘[w]hile a prior inconsistent statement made by a witness may be used for impeachment, there is no general rule of law which allows all hearsay evidence to be used for impeachment.’ Id. Thus, the hearsay evidence in question was not admissible merely because it was offered for impeachment purposes.” We are unaware of any exception to the hearsay rule that would permit this particular use of the radiology report; however, in view of our holding in Division 3 below, we need not determine whether this error was prejudicial or harmless.

Decided July 15, 1991.

Dozier, Akin, Lee & Graham, Lester Z. Dozier, Jr., for appellants.

Newton, Smith, Durden, Kaufold & McIntyre, Wilson R. Smith, for appellees.

3. The trial court charged the jury that “[a] party to a case testifying in his own favor has no right to be intentionally or deliberately self-contradictory, and if he is so you may consider as true that version of his testimony which is most unfavorable to him.” This type of charge “is appropriate only where the party is the sole witness testifying in his behalf and the contradictory testimony must be ‘testimony presented by the party on the trial of the case and not testimony adduced at some other time and place which is introduced on the trial merely for the purposes of impeachment.’ ” (Emphasis supplied.) Stolz v. Shulman, 191 Ga. App. 864, 869 (3) (383 SE2d 559) and cases cited therein.

Examination of the record reveals appellant Kimberly Renew was the only party plaintiff who testified, although other witnesses testified for the plaintiffs. Appellees do not cite this court to, and we cannot find, any instances in the record where Kimberly’s testimony at trial was self-contradictory. Rather appellees cite this court to instances in the trial record where inconsistencies between Kimberly’s consistent trial testimony and her out-of-court deposition were shown in an obvious attempt by appellees/defendants to impeach her. The giving of this type of instruction when the testimony presented by the party at trial was not per se self-contradictory, but was contradicted only by prior inconsistent deposition testimony by the party, constitutes reversible error. Slaton Machine Sales v. Owens-Illinois, 138 Ga. App. 80 (3) (225 SE2d 473). Compare Weathers v. Cowan, 176 Ga. App. 19, 22 (2) (335 SE2d 392) and Branan v. LaGrange Truck Lines, 94 Ga. App. 829, 846 (96 SE2d 364); see also Foskey v. Foskey, 257 Ga. 736 (2) (363 SE2d 547) (charging error presumed harmful).

In view of the posture of this record, we find appellants’ remaining enumerations of error to be without merit.

Judgment reversed.

Pope and Cooper, JJ., concur.


text:
    A91A1073.
    NALLEY MOTOR TRUCKS, INC. v. COCHRAN et al.
    (408 SE2d 501)
   Birdsong, Presiding Judge.

Nalley Motor Trucks, Inc., appeals from a judgment, following a jury verdict, in favor of Sam Cochran and Charlene Cochran d/b/a Cochran Hauling, Inc., on the Cochrans’ claims against Nalley for fraudulently charging for repairs which were not made, including parts and labor, on a large dump truck tractor that was damaged in a collision. The estimate of the cost to repair the truck was over $21,000.

Nalley’s only enumeration of error is that the judgment should be reversed because the trial court erred by refusing to admit in evidence two photographs. Held:

The issue on appeal concerns only one of many items of parts and labor for which the Cochrans successfully asserted they were fraudulently charged. Construed in a light most favorable to the verdict, the evidence showed that Nalley presented a detailed estimate of the work necessary to repair the truck, including which parts could be repaired and which repairs required new parts. Further, Mr. Cochran instructed Nalley’s personnel several times that all parts replaced were to be saved for him, but most were not. When the Cochrans first attempted to pick up the truck, Mr. Cochran noted that certain work had not been completed, that only a few of the parts allegedly replaced had been saved, and that although he was charged, certain work had not been performed as designated on the estimate. Because of these discrepancies, Mr. Cochran left the truck. When Mr. Cochran ultimately picked up the truck, he was informed his bill would be reduced by almost $500. Nevertheless, inspection revealed that a substantial number of repairs for which he was charged had not been made, some allegedly new parts were actually old parts, and that an effort was made to conceal these facts.

The photographs excluded are of only one of the many parts in question. Also, the record shows the Cochrans introduced photographs of the part installed by Nalley on the truck and several witnesses testified that the part on the vehicle was used and explained, using the Cochrans’ photographs, that their opinions were based on the presence of old paint, grease, rocks, asphalt, hangers cut off and rewelded, and also that the part did not look like new metal.

Nalley’s witnesses testified that a new part was installed, and testified emphatically that the Cochrans’ own photographs showed that Nalley put a new part on the truck. Further, Nalley’s witnesses testified in detail that the part had welded hangers because it came without hangers and hangers must be welded on the part to attach it to the truck.

The excluded photographs purport to show the part in question as it lay on a forklift in the parts supply house from which Nalley would obtain the part. According to Nalley, the photographs would have shown that the part came without hangers.

Decided July 15, 1991.

Thomas G. Whatley, Jr., for appellant.

Barry Staples, for appellees.

We start from the proposition that issues concerning the admissibility of evidence are committed to the sound discretion of the trial court and the trial court’s rulings will not be reversed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508). “Furthermore, the quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court.” (Citation and punctuation omitted.) Bradshaw v. State, 172 Ga. App. 330, 331 (323 SE2d 253).

Nalley’s witness testified that the photographs were taken after Nalley found out it was going to be in the lawsuit, that the photographs accurately depicted the “type” of part .used on the Cochrans’ truck as it came to Nalley new from the parts warehouse. Although the Cochrans specifically objected that the photographs had not been “identified in terms of time,” none of Nalley’s witnesses testified the photographs accurately depicted the type of new part used at the time the part in question was installed on the Cochrans’ truck. Accordingly, the trial court did not abuse its discretion by excluding these photographs. Trammell v. Matthews, 86 Ga. App. 661, 667 (72 SE2d 132).

Moreover, assuming the trial court abused its discretion by excluding these photographs, an appellant must show harm as well as error. Miller Grading Contractors v. Ga. Fed. Sav. &c. Assn., 247 Ga. 730, 734 (279 SE2d 442). Although this particular part was the subject of significant controversy, it was but one of many such parts listed on seven pages of parts purportedly used to repair the Cochrans’ truck and which were the subject of much of two volumes of testimony. Further, three of Nalley’s witnesses testified these parts came as new parts without hangers and that hangers must be welded on the part. Thus, as these three witnesses testified to the fact that these photographs were intended to illustrate, the photographs were merely cumulative of the other evidence. Under the circumstances, we must conclude that any error was harmless. OCGA § 9-11-61; Moore v. Sinclair, 196 Ga. App. 667, 670 (396 SE2d 557).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1592.
    BANK SOUTH, N.A. v. ROSWELL JEEP EAGLE, INC.
    (408 SE2d 503)
   Beasley, Judge.

A jury returned a verdict in favor of appellee-plaintiff, Roswell Jeep Eagle, Inc., against appellant-defendant, Bank South, in the amount of $187,681.47 and judgment was entered accordingly on May 7, 1991. On May 20, Roswell Jeep began obtaining writs of fieri facias and entry thereof on the general execution dockets of courts in numerous counties throughout the State, although no levies of execution were undertaken.

On June 6, Bank South filed a notice of appeal, as well as a motion to allow the bank to post a cash supersedeas bond in the amount of $206,449.62, being 110 percent of the amount of the judgment, and for this bond to supersede and void the entry of the judgment and writs on the general execution dockets.

The trial court ruled that under OCGA § 5-6-46 the notice of appeal deprived it of jurisdiction to order the posting of a supersedeas bond; that under OCGA § 9-11-62 (a) no execution could issue upon the judgment, nor could proceedings be taken for its enforcement, until the expiration of ten days after its entry; the filing of the notice of appeal beyond the ten-day grace period could not act as a retroactive supersedeas so as to “clean the slate or undo what has happened subsequent to expiration of the first ten days after entry of judgment” but before the filing of the notice of appeal. We granted an expedited appeal of the trial court’s denial of the bank’s motion.

1. The court erred in concluding that it lacked jurisdiction to allow and set a supersedeas bond. OCGA § 5-6-46 (a) gives it the authority to do so and even compels it to do so when it is the appellee who requests it. The court relied for its ruling on Turner v. Harper, 233 Ga. 483 (211 SE2d 742) (1975), but that case as well as others such as Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979), recite the rule that “supersedeas deprives the trial court of jurisdiction to modify or alter the judgment in the case pending the appeal.” (Emphasis supplied.) Bank South was not seeking change in the judgment (it was already pursuing an appeal as to it) but rather sought supersedeas relief, a subject concerning which the trial court had not lost jurisdiction.

2. OCGA § 5-6-46 (a) provides that the appellee shall be entitled to the posting of a supersedeas bond upon its motion. As alluded in the statute, the purpose is for its judgment to be protected from non-satisfaction in tbe event appellant has insufficient assets to satisfy the judgment when the judgment is affirmed on appeal. See also, e.g., Stokes v. Stokes, 126 Ga. 804 (2) (55 SE 1023) (1906): “to preserve the rights of the parties.” The statute is silent as to whether the appellant can initiate the posting of bond, but no impediment appears which would legally prevent it from doing so if it wishes. Thus the court was authorized to set an amount which would satisfy the judgment and other items to which appellee would be entitled if and when the judgment became affirmed.

3. However, the court was correct in concluding that it could not remove the judgments from the general execution dockets as Bank South requested.

A notice of appeal must be filed within 30 days of entry of the judgment, although the 30-day period is tolled by the filing of a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict. OCGA § 5-6-38.

In civil cases, other than those involving injunctive relief, the notice of appeal serves as an automatic supersedeas upon appellant’s payment of all costs in the trial court, although on motion by appellee, the trial court “shall” require that a supersedeas bond be given in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with other damages which may be awarded to the appellee. OCGA § 5-6-46 (a); Hubbard v. Farmers Bank, 153 Ga. App. 497, 498 (265 SE2d 845) (1980).

OCGA § 9-11-62 (a) provides, in pertinent part, that, “[n]o execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry. . . .” The ten-day grace period is also found in OCGA § 9-11-62 (a)’s federal counterpart, Federal Rule of Civil Procedure 62 (a), 28 USCA. “The purpose of OCGA § 9-11-62 (a) is to permit ‘the party against whom judgment has been entered to determine what course of action he wishes to follow. If he desires to attack the judgment in the trial court, by a motion for a new trial or a similar post-trial motion, he can make his motion and (the issue of supersedeas is resolved as provided in OCGA § 9-11-62 (b)). If he prefers to appeal, he can file a notice of appeal (in which case the issue of supersedeas is resolved as provided in OCGA § 5-6-46).’ Wright & Miller, Fed. Practice & Procedure, Civil, § 2902, p. 309 (1973 ed.). Thus, the clear mandate of OCGA § 9-11-62 (a) is to provide the party against whom a judgment has been entered the right to be free from execution and from proceedings for enforcement of the judgment for a period of ten days in order to determine his future course of action.” Tate v. Burns, 172 Ga. App. 688, 689 (324 SE2d 485) (1984).

Under federal law, the filing of a notice of appeal or designated post-trial motion does not create an automatic supersedeas. See Wright & Miller, supra. It is evident that in federal court a party must apply for a stay immediately after the ten-day grace period has run. Notwithstanding this difference in state and federal law, OCGA § 9-11-62 (a), by negative implication, clearly allows an execution to issue upon a judgment after the ten-day period has run, if a notice of appeal or post-trial motion acting as a supersedeas has not been filed. Thus, Roswell Jeep’s recordation of the writ of fieri facias (execution) commanding the sheriff to levy on defendant’s property was valid. However, execution is suspended by the entering of Bank South’s notice of appeal. OCGA § 9-13-2. “ The general rule is that a supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment. . . . Under this rule the supersedeas, during its pendency, prevents any steps to enforce or carry into effect the judgment, such as issuing an execution based thereon.’ ” Tanner v. Wilson, 184 Ga. 628, 633 (192 SE 425) (1937).

4. The question for decision thus becomes whether the trial court would have authority to order the recordation of the writ expunged from the general execution dockets by reason of the bank’s posting a cash supersedeas bond in lieu of the judgment lien. OCGA § 9-12-81 provides for the lien on defendant’s property when the execution is entered on the execution docket. “Executions are issued for the purpose of authorizing sheriffs and their lawful deputies to proceed with levy on real and personal property.” Black v. Black, 245 Ga. 281, 283 (2) (264 SE2d 216) (1980); OCGA § 9-13-10.

The bank argues that Roswell Jeep’s recordation of its judgment has effectively prevented it from closing the sales of millions of dollars of foreclosed real estate and other real properties. As further argued by the bank, permitting a property owner to file a bond, and thereby to discharge its realty from the lien of a judgment creditor so as to enable the owner to sell or convey his or her property, is recognized under Georgia law. See M. Shapiro & Sons v. Yates Constr. Co. of the Southeast, 140 Ga. App. 675 (231 SE2d 497) (1976); Rahal v. Titus, 107 Ga. App. 844 (1) (131 SE2d 659) (1963). Furthermore, the judgment creditor has no right to enforce the money judgment while the appeal is pending; therefore, insofar as the creditor’s legally protected rights are concerned, it makes no difference whether the security for satisfaction of its judgment is a supersedeas bond or a perfected judgment lien, so long as either security is adequate.

Notwithstanding these arguments, there is a longstanding line of Georgia Supreme Court decisions holding that the only effect of a supersedeas is to stay further action in the case, and a court is without authority to order that the supersedeas operate retroactively so as to undo what has previously been done in execution of the judgment appealed. Tanner v. Wilson, supra at 634; Vowell v. Carmichael, 235 Ga. 387 (1) (219 SE2d 732) (1975); Hutchins v. Howard, 212 Ga. 309, 310 (92 SE2d 13) (1956); Felker v. Johnson, 189 Ga. 797, 803 (8) (7 SE2d 668) (1940); Gurr v. Gurr, 95 Ga. 559 (22 SE 304) (1894); Seamans v. King, 79 Ga. 611 (5 SE 53) (1887); Board of Commrs. of Burke County v. Wimberly, 55 Ga. 571 (1876); Taylor v. Gay, 20 Ga. 77 (1) (1856); Mayor &c. of Macon v. Shaw, 14 Ga. 162 (2) (1853). Consequently, the trial court did not err in denying that portion of the bank’s motion which sought affirmative voidance and “removal” of the entry of the judgment on the general execution dockets.

Decided July 15, 1991.

Kilpatrick & Cody, Thomas C. Harney, Timothy H. Kratz, for appellant.

Law Offices of John C. Bach, John C. Bach, Robert J. Hulsey, for appellee.

However, should the cash bond be posted, it will render ineffectual the writs of fieri facias. Such a writ is “[a] writ of execution commanding the sheriff to levy and make the amount of a judgment from the goods and chattels of the judgment debtor.” Black’s Law Dictionary, 5th ed. If the judgment entered on the jury verdict is affirmed on appeal, the judgment will be satisfied by the cash bond and there will be no unsatisfied judgment for the sheriff to execute on the judgment debtor’s properties. The cash bond would have the legal effect of standing in lieu of the lien which otherwise attaches and remains by way of the recorded writs although their enforcement is stayed by the supersedeas effected by the filing of the notice of appeal.

Judgment affirmed in part and reversed in part.

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