author: Sognier, Judge. McMurray, Presiding Judge,

text:
    A90A0329, A90A0712.
    In re BOOKER (two cases).
    (394 SE2d 791)
   Sognier, Judge.

James Booker, an attorney licensed to practice in this State, appeals from an order of the Superior Court of Clayton County finding him in contempt of Court. It appearing that case nos. A90A0329 and A90A0712, filed and docketed separately because of an error of the trial court clerk, present the same matters for review, the two appeals are consolidated in this opinion. We now affirm.

The record reveals that on Monday, May 8, 1989, appellant appeared before Judge William H. Ison at a calendar call in Clayton County Superior Court as attorney for a criminal defendant. Appellant announced ready for trial, but informed the court that if his case was not reached on that day he would be ready for trial again on Wednesday, May 10, 1989, asking to be excused on Tuesday, May 9, 1989, because of his tentatively scheduled meeting that day in Milledgeville with several out of state prosecutors in regard to a federal matter. Judge Ison instructed appellant to remain in the courtroom and check back with him at the conclusion of the calendar call, when the court would have a better idea of which cases would actually be tried and where appellant’s case would fall on the calendar. Judge Ison then proceeded with the calendar call, and at its conclusion inquired as to the whereabouts of appellant, but appellant had left and could not be located.

It is uncontroverted that appellant left Judge Ison’s courtroom on Monday, May 8, 1989, and made preparations to go to Milledgeville. Appellant actually departed Atlanta late Monday night or early Tuesday morning, driving a Rolls Royce automobile he had recently purchased. The meeting in Milledgeville was concluded at about 3:00 p.m. on Tuesday. However, having noticed a problem with the brakes, appellant decided to drive the Rolls Royce to a dealer in Hilton Head, South Carolina for repair, although he had purchased the car from an Atlanta dealer. Appellant drove to Hilton Head from Milledgeville without informing his office. Upon his arrival that evening he was informed that the dealership could make no repairs until the next day.

Appellant’s client’s case was not reached on Monday, May 8th, or Tuesday, May 9th, but Tuesday afternoon Judge Ison’s secretary called appellant’s office and notified appellant’s secretary that appellant’s client’s case would be reached at 9:00 a.m. Wednesday. Appellant’s secretary, still thinking appellant was in Milledgeville, said she would try to reach him, but was unable to do so. Appellant’s case was called for trial in Judge Ison’s courtroom on Wednesday morning. Appellant was not present, but the defendant, the prosecutor, and several jury panels were there ready to proceed with the case, and an employee of appellant’s office, apparently still unaware that appellant was in Hilton Head, was present and informed the court that appellant had been detained on a federal matter in Milledgeville. Judge Ison also called appellant’s office and was told simply that appellant was not in. When appellant finally contacted his office late Wednesday morning and was apprised of the problem, he called Judge Ison from Hilton Head, where his car was still being repaired. Judge Ison informed appellant during that telephone conversation that he would hold the case for trial until 1:30 p.m., and ordered appellant to be present. When appellant responded that it was impossible for him to be there at that hour, Judge Ison informed him that a warrant would be issued for his arrest, whereupon Judge Ison issued an attachment for contempt.

Appellant did not appear before Judge Ison either at 1:30 on Wednesday or for more than a week thereafter, but filed a notice of appeal from Judge Ison’s order of attachment, seeking emergency relief from this court. We dismissed that appeal for want of jurisdiction on May 17, 1989. On May 19, 1989, nine days after the attachment was issued, appellant presented himself to Judge Ison, who set a rule nisi for the following month on a petition for contempt drawn by the prosecutor, and ordered that appellant be booked and released upon payment of a $1,000 appearance bond. Appellant spent approximately three hours in jail.

Appellant filed a motion to recuse Judge Ison from presiding over the contempt hearing, which was granted, and on July 13 and 14, 1989, a hearing on the petition for contempt was held before Judge Stephen E. Boswell in Clayton Superior Court. Both appellant and the State presented extensive evidence. Judge Ison and appellant testified, giving sharply conflicting testimony about the events on May 8th, the day of the calendar call, particularly as to whether appellant ever spoke with Judge Ison privately and received permission to leave the courtroom, but agreeing about the facts concerning the telephone call on May 10th. Judge Boswell entered an order on August 22, 1989, finding appellant in contempt of court and allowing appellant to purge himself of contempt “by abiding by the Orders of the Judges of the Courts of this State and conducting] himself honestly, justly and uprightly demean [ing] himself as an attorney, counselor and solicitor of the Courts of this State from this day forward.”

1. In three enumerations of error, appellant contends it was error for Judge Ison to issue an attachment for contempt without first scheduling a hearing, because the contumacious conduct complained of was an indirect, rather than a direct, contempt, and thus violated his right to due process. We find no merit in this contention and we find that the procedure followed sub judice more than comported with the required due process.

In view of the evidence that two jury panels and all parties other than appellant were present in the courtroom on May 10th ready to try the case and were unable to proceed because of appellant’s absence, there is no question that appellant’s refusal to appear when ordered to do so interfered with the functioning of the court and the administration of justice. See Shafer v. State, 139 Ga. App. 360 (2) (228 SE2d 382) (1976). “[Cjourts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions.” Wood v. Georgia, 370 U. S. 375, 383 (82 SC 1364, 8 LE2d 569) (1962). Moreover, appellant had, within the actual sensory perception of Judge Ison, i.e., in the May 10th telephone conversation, failed to comply with a direct order of the judge to appear for trial at a certain time, which conduct constituted a direct contempt. See Johnson & Reaves, Contempt of Court in Ga., 23 Ga. St. B.J. 66, 68 (1986). Accordingly, Judge Ison would have beén justified in punishing that contumacious conduct summarily and without a hearing. “ ‘It is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred. . . .’ [Cit.]” Garland v. State, 99 Ga. App. 826, 831 (2) (110 SE2d 143) (1959). Because summary punishment would have been proper, we cannot agree with appellant that the procedure used here, which afforded him written notice and a hearing lasting several days at which extensive evidence was introduced, offended the requirements of due process. Appellant complains of the fact that he was arrested and required to post an appearance bond. Although we do not condone their routine use, under the circumstances present here we find those measures justified by appellant’s unexplained (or misleadingly explained) absence and his failure to turn himself in and appear before Judge Ison for nine days during which he knew the attachment was outstanding.

2. Appellant characterizes his arrest and the three-hour period he spent in jail during the booking process as “punishment,” and claims that the trial court erred by denying his motion to dismiss the petition for contempt because it placed him in double jeopardy. Under the facts set forth in Division 1, supra, we find no violation of the prohibition against double jeopardy here, as appellant’s arrest was a regular and proper part of the procedure for insuring his presence at the hearing, and not a punishment after an adjudication of contempt.

3. Appellant asserts the trial court erred by denying his demand for a bill of particulars. However, “[a]ppellant does not cite, and this court is unaware of, any applicable statute or law authorizing the grant of such a motion in a state [proceeding].” Megar v. State, 144 Ga. App. 564 (3) (241 SE2d 447) (1978). Moreover, the record shows that although the motion referred to by appellant was captioned “Demand For Particulars To Prepare A Defense,” it was, in fact, a motion to dismiss the contempt proceeding.

The record supports the trial court’s finding that the petition was sufficiently clear in that it did not mislead appellant and it “[set] out the grounds of contempt and [gave appellant] notice of the allegations and date of the Rule Nisi.”

4. Appellant maintains the evidence was insufficient to support a finding of contempt beyond a reasonable doubt. We need not decide whether this proceeding was actually a civil, rather that a criminal, contempt action (the imposed sanction being remedial in nature, rather than punitive, Davis v. Davis, 138 Ga. 8 (1) (a) (74 SE 830) (1912)), thus making the appropriate standard the preponderance of the evidence, rather than beyond a reasonable doubt, because we find that the evidence presented at the hearing more than sufficiently authorized the trial court’s finding that appellant was guilty of contempt of court even using the higher standard of beyond a reasonable doubt. “Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court, but ‘it also includes the interruption of the proceedings. . . [.]’ [Cit.]” Crudup v. State, 106 Ga. App. 833, 837 (129 SE2d 183) (1962), aff’d 218 Ga. 819 (130 SE2d 733) (1963). In the case at bar it is undisputed that after announcing “ready” appellant failed to appear for a trial, thereby interfering with the functioning of the court. Despite appellant’s proffered explanation, the trial court was authorized to find that appellant’s conduct caused the delay, in that he failed to keep in touch with either his office or the court and chose to drive to a distant location while on call for a trial.

Further, although the evidence was in conflict, Judge Ison testified that he never excused appellant from the calendar call, and thus the trial court was authorized to find that appellant disregarded Judge Ison’s direct order by leaving the courtroom on Monday, May 8, 1989. “When the evidence is viewed in the light most favorable to the ‘prosecution,’ any rational trier of fact could have found the essential elements of appellant’s commission of a . . . contempt of court beyond a reasonable doubt.” In re Bergin, 178 Ga. App. 454, 455 (343 SE2d 743) (1986).

5. Appellant contends the sentence imposed by the trial court is violative of OCGA § 15-6-8 (5), which provides that superior courts have authority “[t]o punish contempt by fines not exceeding $500.00 and by imprisonment not exceeding 20 days.” It appears that in this enumeration appellant is complaining that he was neither fined nor incarcerated after the adjudication of contempt, but instead was “sentenced” by the trial court’s order to conduct himself properly as an attorney. It is elementary that to warrant reversal, harm as well as error must be shown, Blanton v. State, 191 Ga. App. 454, 455 (2) (382 SE2d 133) (1989), and we fail to see harm to appellant even should we concede error exists. Moreover, appellant fails to recognize that what he deems his “sentence” in the trial court’s order is actually the method by which appellant may purge himself of the contempt. Nothing in OCGA § 15-6-8 (5) prohibits such an order.

6. We have carefully reviewed appellant’s remaining enumerations of error and find them without merit.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur specially.

McMurray, Presiding Judge,

concurring specially.

While I agree with the judgment and most of the supporting reasoning of the majority, I am unable to concur with all that is stated in Division 1. According to the citation for contempt under which appellant was tried, the contumacious conduct occurred on May 8, 1989, when appellant failed to remain in the courtroom until the conclusion of the calendar call in order to resolve a potential scheduling conflict. Appellant was also charged with failing to return to court when specifically directed to do so by the trial court. This apparently relates to appellant’s failure to comply with Judge Ison’s direction by telephone on May 10, 1989.

Judge Boswell’s order found appellant in contempt for two reasons, the failure to remain in the courtroom as directed by Judge Ison on May 8, 1989, and appellant’s failure to appear and be ready for trial after announcing ready for trial. See In re Sykes, 151 Ga. App. 233 (259 SE2d 215). I do not read Judge Boswell’s order as being predicated upon any failure of appellant to comply with the telephone directions of May 10, 1989. Indeed, the evidence suggests that compliance may have been physically impossible. Consequently, I do not concur with the language in Division 1 which appears to approve of the procedure utilized on the basis that summary punishment for appellant’s failure to comply with the order given during the telephone conversation would have been proper. Nonetheless, under the circumstances of the case sub judice, there was no error in the attachment of appellant so as to permit the trial court to inquire as to the cause of his unauthorized departure and continued absence. See Martin v. Waters, 151 Ga. App. 149, 150 (2) (259 SE2d 153).

Additionally, in Division 5 the majority has stated that which appellant has deemed as his punishment is actually the method by which appellant may purge himself of the contempt. Although perhaps implicit in the majority’s statement I would, in the interest of clarity, add that no punishment has been imposed under Judge Boswell’s order which appellant will avoid by purging himself of contempt. Nor is there any punishment of any kind imposed against appellant.

Decided May 9, 1990.

James Booker, pro se.

Dwight L. Thomas, for appellant.

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

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0420.
    BOBBITT v. THE STATE.
    (394 SE2d 385)
   McMurray, Presiding Judge.

Defendant Bobbitt appeals his conviction of the offenses of possession of cocaine with intent to distribute, possession of cocaine, and speeding. The sole enumeration of error complains of the denial of defendant’s motion to suppress evidence. Held:

On the morning of February 17, 1989, Trooper Riner of the Georgia State Patrol was operating stationary radar, checking the northbound lane of I-95 in McIntosh County. The trooper checked an automobile driven by defendant at 72 miles per hour in an area where the posted speed limit was 65 miles per hour. Trooper Riner gave chase and stopped the vehicle. In response to the trooper’s request, defendant produced a South Carolina driver’s license and asked his passenger to find the registration for the automobile. The registration, when located, indicated that the owner was a woman in Miami, Florida. Meanwhile, Trooper Riner, having noticed that the right window had been broken out of the car and that there was damage around the ignition switch, became concerned that the car might be stolen and radioed for backup. Within a few minutes Trooper Long arrived at the scene.

In the meantime, Trooper Riner talked to defendant “about where they were going and where they were coming from and the owner of the car.” Defendant stated that he was enroute to South Carolina to visit a sick aunt.

Trooper Riner spoke briefly to defendant’s passenger and asked him where they were going. After first stating that they were going to North Carolina, the passenger then said, “Well, I really don’t know where we’re going. I’m just going along for the ride.”

Trooper Riner then asked defendant and received his consent to a search of the car. The initial search by Trooper Riner disclosed marijuana residue in the floorboard on the passenger side and a “crazy glue bottle,” containing some white powdery residue which appeared to be cocaine, was found in a side pocket on the passenger side door. The search was interrupted by a radio message that defendant’s driver’s license was under suspension.

At this point, defendant and his passenger were placed under arrest. The search of the automobile continued and a pack of rolling papers was found in the floorboard on the passenger’s side. Inside the rolling papers was a razor blade with a substance stuck to the blade which later tested positive for cocaine.

The troopers conducted a pat-down search of defendant and his passenger at the time of their arrest. Upon completion of the search of the car, Trooper Riner determined that a more thorough search of defendant and his passenger was appropriate since he suspected that they were drug couriers. This suspicion was predicated not only on the suspected drug remnants found in the car, but also on the inconsistent statements as to their destination and by the absence of any clothing or personal effects in the car, which seemed unusual in view of the length of their journey.

Trooper Riner asked defendant to take his shoes off. Inside defendant’s left shoe, the troopers found a corn chip bag containing 17 individually wrapped pieces of crack cocaine.

During the motion to suppress hearing, both State troopers testified that defendant consented to the search of the automobile. “A valid consent eliminates the need for either probable cause or a search warrant. Hall v. State, 239 Ga. 832 (238 SE2d 912) (1977).” Dean v. State, 250 Ga. 77, 80 (295 SE2d 306). While defendant testified that he did not consent to the search of the automobile, the resolution of the question of credibility thus presented was for the trial court and must be accepted unless clearly erroneous. Dean v. State, 250 Ga. 77, 80, supra; Wright v. State, 189 Ga. App. 441, 442 (1) 444 (375 SE2d 895). Insofar as the trial court’s ruling reflects a resolution of this question of credibility in favor of the State, we find no error as such is supported by the evidence.

Generally, a search or seizure incident to a lawful arrest is a legal search. Minor v. State, 180 Ga. App. 869 (1), 871 (350 SE2d 783). In this case, the troopers had probable cause to arrest defendant on at least misdemeanor traffic charges. Defendant contends that his Fourth Amendment rights were violated when he was subjected to a strip search incident to a traffic stop. See 78 ALR Fed. 201.

Decided May 9, 1990.

Neil L. Heimanson, for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

The removal of defendant’s shoes did not amount to a “strip search” as that term is generally used to denote a search involving a viewing of a prisoner’s rectal and genital areas. Defendant was not asked to remove his trousers or shirt. Therefore, in applying the test defendant has invoked from Bell v. Wolfish, 441 U. S. 520, 559 (99 SC 1861, 60 LE2d 447) a “balancing of the need for the particular search against the invasion of personal rights that the search entails.” Id. 441 U. S. 520 at 559, we find a relatively modest invasion of defendant’s privacy. In contrast, the need for the search was enhanced by the discovery of contraband in the automobile and the other factors which gave rise to Trooper Riner’s reasonable suspicion that defendant was a drug courier. We conclude that the trial court correctly determined that there was no violation of defendant’s Fourth Amendment rights. See United States v. Robinson, 414 U. S. 218 (94 SC 467, 38 LE2d 427).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0504.
    HERING v. THE STATE.
    (394 SE2d 389)
   McMurray, Presiding Judge.

On March 16, 1989, defendant Hering was sentenced after entering a plea of nolo contendere to a charge of driving under the influence of alcohol and pleading guilty to charges of following too closely and failure to give information and render aid. On September 25, 1989, defendant filed his motion to withdraw plea and vacate sentence. This appeal is from the denial of that motion. Held:

The State Court of Cobb County has terms of two months duration. Ga. L. 1979, pp. 3481, 3483. “ ‘Even after sentencing, the trial court has the discretion to allow the withdrawal of the plea prior to the expiration of the term of court in which the sentence was entered. State v. Right, 175 Ga. App. 65 (332 SE2d 363) (1985). However, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings. Id. The denial of the motion filed by the appellant in the present case must accordingly be affirmed.’ Staley v. State, 184 Ga. App. 402 (361 SE2d 702).” Lowery v. State, 188 Ga. App. 411 (373 SE2d 261).

Decided May 9, 1990.

Alan C. Manheim, B. Clark Jones, for appellant.

Keith L. Hering, pro se.

Patrick H. Head, Solicitor, Beverly M. Hartung, Cinci L. Feelon, Assistant Solicitors, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0590.
    JONES v. THE STATE.
    (394 SE2d 387)
   McMurray, Presiding Judge.

Defendant Jones appeals his conviction of the offenses of driving under the influence of alcohol, causing serious injury by vehicle, and unlawfully operating a motor vehicle without insurance. Held:

1. The first enumeration of error raises the issue of whether there is sufficient evidence to authorize the convictions of defendant. On January 22, 1989, defendant was driving on Hamilton Road when the victim, a young girl of five or six years of age, suddenly ran into the street in front of the vehicle operated by defendant. The victim was almost to the centerline of the street when she was struck by the right front of the automobile. As a result of this incident the victim is a quadriplegic. Shortly afterwards, defendant, who had “some trouble” reciting the alphabet, was required to submit to an intoximeter test of the alcohol content of his blood. This test revealed an alcohol concentration of .26 grams and thus authorized a rational trier of fact to reasonably conclude that defendant was guilty beyond a reasonable doubt of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (4).

When the victim ran into the street, the vehicle operated by defendant was 20 yards away. There were skid marks left on the street by the vehicle and the impact of the right front of the vehicle on the victim as she approached the centerline of the street was evidence from which it could be inferred that the vehicle had swerved to avoid striking the victim. Defendant testified that he could not have avoided hitting the victim. However, the evidence was sufficient to authorize a rational trier of fact to evaluate the circumstances and conclude beyond a reasonable doubt that an impairment of defendant’s driving ability through the violation of OCGA § 40-6-391 (a) (4) caused the victim’s injuries. Contrary to defendant’s contention, the State was not required to prove that defendant was committing any traffic violation or unsafe act, in addition to the violation of OCGA § 40-6-391 (a) (4). It is sufficient that the evidence shows that defendant’s violation of OCGA § 40-6-391 caused an injury such as described in OCGA § 40-6-394. A rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt of the offenses of serious injury by vehicle and driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Roney v. State, 192 Ga. App. 760, 761 (1), 762 (386 SE2d 412).

Decided May 9, 1990.

William J. Mason, for appellant.

Douglas C. Pullen, District Attorney, Lew S. Barrow, Assistant District Attorney, for appellee.

While the defendant was unable to present the proof of insurance required under OCGA § 33-34-12 (a) (1), such does not establish that he was knowingly operating a motor vehicle without effective insurance in violation of OCGA § 33-34-12 (b). “Failure to keep proof of insurance coverage and driving a vehicle without liability insurance are separate offenses . . .” Griffith v. State, 172 Ga. App. 255, 259 (3) (322 SE2d 921). There is no evidence that defendant knew that the vehicle which he had borrowed from his girl friend was not properly insured. The evidence did not authorize defendant’s conviction for unlawfully operating a vehicle without insurance.

2. Pursuant to Rule 31.3 of the Uniform Rules for the Superior Courts, the State served defendant with notice of its intent to introduce evidence of two similar transactions. Both similar transactions involved previous offenses of driving under the influence committed by defendant. At the hearing upon the State’s request for leave to introduce this evidence, defendant presented his objections to its admission but did not raise any issue concerning whether the similar transactions the State sought to introduce were sufficiently similar so that proof of them tends to prove the offenses charged. Therefore, we may not consider defendant’s belated attempt to raise that issue for the first time on appeal. Whittington v. State, 184 Ga. App. 282, 285 (3) (361 SE2d 211).

Finally, defendant contends that admission of the similar transaction evidence in this case was improper since, as to one offense there was an uncounseled guilty plea, and as to the other, only a bond forfeiture rather than a verdict or plea of guilty. However, as proof of a conviction is not a necessary prerequisite to the introduction of similar transaction evidence (Coalter v. State, 183 Ga. App. 335, 337 (358 SE2d 894)), we find no merit in this contention.

Judgment affirmed in part and reversed in part.

Carley, C. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A0351.
    ELROD v. THE STATE.
    (394 SE2d 548)
   Beasley, Judge.

Following denial of her motion for new trial and as amended, Elrod appeals her conviction and sentence for misdemeanor theft by shoplifting, OCGA § 16-8-14 (a) (1), (b) (1).

1. In her first three enumerations of error, appellant argues the general grounds but does not specify how the evidence is deficient. The evidence construed in favor of the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), shows that while undetected, a store security guard observed Elrod and her sixteen-year-old friend, Whitlock, pushing a shopping cart through the store. Whitlock took certain cosmetic items from the cart, looked about, and then stuffed the items in the purse she was carrying. Shortly thereafter, Elrod removed some lingerie from the same cart, went to the same spot as Whitlock had, and stuffed the lingerie into her pocketbook. The two women went through the checkout and paid for some other items but did not pay for the items in their purses. The purses were emptied in the security office and the unpaid items found. The evidence was sufficient to enable any rational trier of fact to find Elrod guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In enumerations of error four, five, six, and eleven, appellant cites adverse rulings regarding admission of evidence of statements by the deceased Whitlock admitting Whitlock’s sole guilt for the shoplifting.

The Court ought not consider the enumerations because appellant does not comply with Court of Appeals Rule 15 (c) (3) by pointing out where in the record or transcript the alleged erroneous evidentiary rulings occurred. “[An appellate] court can not read every line of the record and transcript to hunt for error.” Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895) (1968).

Secondly, the record reveals defense counsel’s ambivalent acquiescence in the court’s now objected-to rulings. The objections were not properly preserved and she cannot now be heard to complain of them. See Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986), citing Upshaw v. Cooper, 127 Ga. App. 690, 692 (1) (194 SE2d 618) (1972).

3. In enumeration seven, appellant contends the “court erred in overruling [her] objection to repeatedly asking a witness how many bags were present.”

Again, appellant makes no effort to identify the testimony by page reference to the transcript. Nor does she identify which witness’ testimony is at issue. Moreover, she presents no legal argument other than bare contentions and no citation of authority. The enumeration is abandoned. Court of Appeals Rule 15 (c); Ramsey v. State, 183 Ga. App. 48, 51 (4) (357 SE2d 869) (1987).

4. Enumeration eight cites error in preventing her from cross-examining the prosecuting witness about his memory of his other shoplifting arrests for the same month. She contends the security officer’s ability to perceive and recall such specific details was crucial to his credibility and to the defense theory of the case.

Again, the alleged occurrence is not identified in the transcript, but the State has pointed out the subject testimony. Defense counsel asked the witness how many shoplifting arrests he had made during the month of Elrod’s arrest and the witness responded that there had been twelve. Defense counsel then asked the witness to name the twelve. The State objected on the basis of relevancy. Defense counsel argued that the witness’ ability to recall was critical, ostensibly because of the defense position that the security guard/witness had confused Elrod’s identity with that of Whitlock and that Elrod had not been carrying any purse. The court permitted the question and the witness was asked to name the adult shoplifters, which he did. Defense counsel then asked what kind of pocketbook one of the named women had carried. The State again objected. The court told defense counsel it thought the defense had gotten its point across. Defense counsel agreed, reiterated what had been attempted, and ended the recross examination.

“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. The admission of evidence is a matter which rests within the discretion of the trial court. Lewis v. State, 158 Ga. App. 586, 587 (1) (281 SE2d 331) (1981); Baker v. State, 246 Ga. 317, 319 (3) (271 SE2d 360) (1980). “The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning. . . . The trial court has a wide range of discretion in the control of cross-examination. [Cit.] That discretion will not be limited in the absence of obvious abuse. [Cits.]” Johnson v. State, 158 Ga. App. 333, 334 (280 SE2d 379) (1981).

Even if the evidence were relevant to show the witness’ recall ability, as appellant contends even though there is no evidence that defense counsel was in possession of the details of the other shoplifting incidents so as to verify or challenge the recitation, the court permitted defense counsel considerable leeway and only halted the questioning so as to prevent obscuring the case on trial with evidence of unrelated thefts. There was no abuse of the court’s discretion. Moreover, defense counsel acquiesced in the court’s ultimate treatment of the matter. Upshaw, supra.

Decided April 20, 1990

Rehearing denied May 11, 1990

Nancy A. Bradford, Louis C. Thacker, for appellant.

John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.

5. Enumerations of error nine, ten, and twelve, and sixteen are unsupported by authority or argument, save the bare assertion of prejudice and harm in number nine. They are deemed abandoned. Court of Appeals Rule 15 (c); Ramsey, supra.

6. In enumerations of error thirteen, fourteen and fifteen, appellant contends the court erred in failing to give three requests to charge, one on flight and two on identification.

Again these enumerations are bereft of any supportive reference or argument and the only authority given is the sole citation which accompanied each request; the contentions should be treated as abandoned. Court of Appeals Rule 15 (c); Ramsey, supra. We do note that there was no evidence of flight so as to warrant a charge in that regard. “When [a] requested [charge] deal[s] with a matter not in issue, it is not error for a trial court to deny the [request]. [Cit.]” Smith v. State, 180 Ga. App. 278, 279 (1) (349 SE2d 26) (1986).

The trial court instructed the jury in its own words about defendant’s defense of mistaken identity. “It is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error. [Cit.]” Coleman v. State, 189 Ga. App. 366, 367 (6) (375 SE2d 663) (1988).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Birdsong, Judge.

text:
    A90A0578.
    MARCOUX v. FIELDS.
    (394 SE2d 361)
   Birdsong, Judge.

Joanne Marcoux sued Northside Realty Associates, Inc., and its agent Eddie C. Fields for damages arising from Fields’ alleged fraud, practicing law without a license, legal malpractice, real estate brokerage and salesperson malpractice, breach of contract, and breach of fiduciary duties.

The suit arose out of Marcoux’ sale of a condominium in Gwinnett County, with Fields and Northside Realty as her real estate agents. Fields allegedly prevailed upon Ms. Marcoux to believe she did not need an attorney and persuaded her to deviate from the original terms of sale (which had provided for a payment of $69,900 in cash to Marcoux), and instead to accept at closing a $2,000 purchase money note secured by a second mortgage, and payable in three months. In fact, the “purchase money note” did not give Marcoux a secured interest in the property and when it “went unpaid,” Marcoux was compelled to file suit against the purchasers.

That lawsuit against the purchasers was filed and tried in Gwinnett County, where the purchasers resided. The trial court directed a verdict in favor of Marcoux for the $2,000 indebtedness and directed a verdict in favor of the defendant purchasers on Marcoux’ claim for attorney fees.

Thereafter, Marcoux sued Northside Realty and Fields, in Fulton County, on all the claims enumerated above, and sought damages including the $11,534.86 attorney fees and expenses of trial litigation she incurred in the underlying Gwinnett suit against the purchasers. The trial court granted summary judgment to defendants Northside Realty and Eddie Fields on the asserted ground that the attorney fees and expenses of litigation were not recoverable, this issue having been settled by the directed verdict in favor of the purchasers in the underlying Gwinnett County suit, that is, that the Gwinnett judgment in favor of the purchasers was res judicata on the damages issue in this suit. Held:

1. We will not recite the arguments of the parties because they are not exactly to the point. It is sufficient to say that the Gwinnett County lawsuit against the condominium purchasers was an action for breach of contract, i.e., failure to pay the note. In actions on contract, attorney fees and expenses of litigation generally “shall not be allowed,” unless the defendant “has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” OCGA § 13-6-11. We must presume such misconduct by the purchasers in failing to pay the note was found lacking, for that was the only ruling of the Gwinnett trial court in denying attorney fees against them.

However, the purchaser’s conduct or lack of bad faith in failing to pay the note is not the issue in this case. The instant case is one of fraud and misfeasance against the real estate agents for having induced Marcoux to take a note which gave her no security interest and ultimately forced her to a lawsuit against others and a recovery on a mere contract.

Attorney fees and expenses of litigation in an underlying action are recoverable as real damages incurred as the result of defendants’ malfeasance or misfeasance (see Hamilton v. Powell, Goldstein, Fra zer & Murphy, 167 Ga. App. 411, 412 (306 SE2d 340)). These are actual damages and, if they are the proximate result of Marcoux’ having to sue the purchasers because of defendants’ inducements leading her to take a note which gave Ms. Marcoux no security interest, we know of no reason they should not be allowed. See OCGA §§ 51-1-6; 51-12-7; see Glynn County &c. v. Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628).

The question in this case against the realtors has nothing to do with whether the purchasers of the condominium acted in bad faith or caused unnecessary trouble or expense or were stubbornly litigious in failing to pay the note, which is the only issue settled by the directed verdict denying attorney fees in the Gwinnett County suit against the purchasers. If Marcoux had recovered these expenses in that suit, she could not get them here, for that would simply be a double recovery on the injury related to legal fees and expenses. See Pennsylvania Threshermen &c. Ins. Co. v. Hill, 113 Ga. App. 283 (148 SE2d 83). But, the fact that the purchasers were not found to be in bad faith or stubbornly litigious in failing to pay the note (OCGA § 13-6-11) does not in fact or logic foreclose the issue of whether North-side Realty and Fields committed fraud and misfeasance resulting directly or consequentially (§ 51-12-3) in Marcoux’ incurrence of legal fees and expenses in a resultant lawsuit against third parties, as in Hamilton, supra.

We conclude the denial of attorney fees in the Gwinnett suit against the purchasers for bad faith or stubborn litigiousness in failing to pay on a contract, and the question in this suit of damages consisting of legal fees and expenses arising out of the real estate agent’s alleged torts, do not have the same identity of issue, or cause of action, or parties or privies, so as to create a bar in this case of res judicata; nor did the Gwinnett judgment based on the purchasers’ conduct adjudicate the merits of the issue of damages caused by the realtors in this case so as to create an estoppel by judgment. McFadden Business Pub. v. Guidry, 177 Ga. App. 885, 887 (341 SE2d 294); 18 EGL, Judgments & Decrees, § 283 et seq. (1981 rev.).

Appellee Fields argues, however, that plaintiff Marcoux is foreclosed because she did not amend her Gwinnett County complaint against the purchasers to add appellees as party defendants, that she could not “split” her causes of action as she did, and that the Gwinnett judgment is therefor binding on all parties and privies as to all matters “which might have been put in issue in the cause wherein the judgment was rendered,” OCGA § 9-12-42; Hamlin v. Johns, 41 Ga. App. 91 (151 SE 815). But these were two separate causes of action against two separate parties, not joint tortfeasors and not even residents of the same county. In fact, Marcoux was not required to have brought in, as tortfeasors, the Fulton County realtors into the Gwinnett contract suit against the purchasers; although she might have done so under OCGA § 14-2-510 (b) (2) and (3), the causes of action differ completely against the purchasers in contract, and the realtors in separate tort, and such proceedings would be complicated and subject to severance.

Moreover, the wrongs asserted against the realtors in conducting the sale with fraud and negligence and breach of contract are not even superficially the same “wrongs” as the purchasers’ mere failure to pay a note. See Hamlin v. Johns, supra, where a second suit by Johns against Hamlin for nonpayment of purchase money notes was held not to involve the same issue as, and was not barred by, a prior unsuccessful suit by Hamlin against Johns to rescind and cancel the same notes for fraud.

Since the plaintiff Marcoux’ causes of action are for different wrongs against different parties, who were not in privity to each other (Walka Mountain &c. v. Hartford Acc. &c. Co., 222 Ga. 249, 252 (149 SE2d 365)), the Gwinnett judgment that the purchasers did not act in bad faith or in stubborn litigiousness so as to be liable for attorney fees for not paying the note, is not a bar against the recovery of legal fees and expenses of litigation incurred in that suit as a proximate result of the realtors’ alleged negligence, malfeasance, and breach of contract in conducting the sale. Hamilton, supra.

2. Appellant Marcoux’ appeal, being meritorious, is therefore assuredly not frivolous and does not warrant payment of penalties to the appellees.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.

On Motion for Rehearing.

Fields contends we failed to address the trial court’s finding that the parties here were “in privy” and therefore the realtors are insulated from damages in the suit against them for negligence and fraud, by the Gwinnett judgment denying attorney fees from the buyers for failure to pay the note.

We did address this issue, holding that the two suits “do not have the same identity of issue, or cause of action, or parties or privies, so as to create a bar in this case of res judicata. . . .”

As Fields points out, “[p]rivity connotes those who are in law so connected with the party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. . . .” (Emphasis supplied.) Smith v. Wood, 115 Ga. App. 265, 269 (154 SE2d 646). But there is clearly no identity of interest between the plaintiff’s realty agents and the home buyers; and, as we took pains to show certainly there is no identity of interest between the question of whether the home buyers were liable to plaintiff for bad faith in failing to pay their note, and whether the plaintiff’s realty agents are liable for fraud and negligence in inducing their principal (the plaintiff) to take a note that bore no security interest.

Decided April 24, 1990

Rehearing denied May 11, 1990

Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, for appellant.

William A. Wehunt, Frederick G. Boynton, for appellee.

Motion for rehearing is denied.


text:
    A90A0639.
    JOHNSON v. THE STATE.
    (394 SE2d 359)
   Beasley, Judge.

Johnson appeals his conviction for trafficking in cocaine, OCGA § 16-13-31 (a) (1). Defendant was indicted on April 20, 1988, for knowingly bringing into the state and actually possessing 96.6 grams of cocaine on March 24, 1988, in violation of OCGA § 16-13-31 (a) (1), which was amended effective March 28, to delete the requirement of “actual” possession. Johnson contends that the trial court erred in refusing to direct a verdict of acquittal because there was no evidence that he placed the cocaine in the out-of-state rental car or that it was put there before the car’s entry into Georgia.

The police officer was on routine traffic patrol when he noticed a car driving off the roadway onto the right shoulder, raising a cloud of dirt and dust, and then weaving back and forth across the centerline. Suspecting that the driver might be intoxicated, the officer pulled the car over. Johnson was the driver and sole occupant. The officer discovered that the car had been rented in Tampa approximately fifteen hours earlier and asked to see the rental agreement. Johnson gave changing, conflicting and confused responses to the officer’s questions about Johnson’s destination and purpose. While the officer checked the rental agreement, Johnson kept getting closer and closer to the officer as if to reach around and grab him. Concerned for his safety, the officer called for a backup. Upon his arrival, the backup noticed that Johnson was trying to “ease up” on the other officer.

The officer noted that there were no observable signs of travel in the car’s passenger compartment such as clothes or travel items. When the officer asked Johnson if he had any traveling clothes or suitcases or anything, Johnson replied “sure” and voluntarily opened the trunk. Inside, the officer noticed a tote bag and that the material on the right rear tire compartment was torn or pulled away. The officer asked for and was granted permission to search the vehicle. He looked in the tote bag and found a .38 caliber pistol with the serial numbers obliterated and $1,900 in bills wadded up in a pair of pants.

Johnson gave what to the officer seemed like an illogical explanation for the cash, so the officer put his hand into the tire wall area that looked obviously tampered with. The officer pulled out a small blue purse. Johnson stated, “That ain’t mine.” The purse contained the cocaine and a box of razor blades.

Later, in custody, Johnson gave a Florida law enforcement officer vague and confusing explanations for his trip and for the cash found in the car.

The “actual possession” that was required for a conviction for trafficking in cocaine did not mean that the person had to be holding the contraband in his hand or have it physically on his person. “ 'If a person [was] driving an automobile or [had] an automobile in his possession, custody or control, all in that automobile [was] presumed to be his and in his possession.’ Autry v. State, 150 Ga. App. 584 (2) (258 SE2d 268) (1979). Whether or not the evidence was sufficient to rebut the inference arising from the finding of the drugs in the automobile [was] a question for the jury to decide. Moore v. State, 155 Ga. App. 149, 151 (270 SE2d 339) (1980).” Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988).

Johnson did not testify on his behalf and the only evidence was that presented by the State. The undisputed evidence of Johnson’s rental of the car in Florida fifteen hours prior to the stop, his being the driver and sole occupant of the car when stopped, his unusual behavior and responses to law enforcement officers prior to and after his arrest, the ill-explained large amount of cash, the razor blades often used to cut crack cocaine, the anonymous weapon, the lack of traveling clothes and gear, the obvious tampering with the trunk tire area, and Johnson’s immediate disclaimer of ownership of the purse prior to its opening, was sufficient for the jury to find that Johnson had placed and/or had knowledge of the cocaine in the car, had knowingly transported it into Georgia, and was in actual possession of it at the time of the traffic stop beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the trial court correctly refused to direct a verdict of acquittal.

Farmer v. State, 152 Ga. App. 792 (264 SE2d 235) (1979), relied upon by appellant, is inapposite. There is no evidence of equal access here and there is sufficient evidence to connect Johnson with the contraband.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided April 20, 1990

Rehearing denied May 11, 1990

Randall M. Clark, for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee.


text:
    A90A0768.
    BACKUS CADILLAC-PONTIAC, INC. v. ERNEST.
    (394 SE2d 367)
   Birdsong, Judge.

This is an appeal of the verdict and judgment in favor of appellee/plaintiff and of the order denying appellant’s motion for new trial and motion for judgment notwithstanding the verdict.

We have examined the record and hearing transcript filed by appellant; and have taken judicial notice of the record and transcript of Case No. A90A1053 on file in this court. Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 213 (2) (367 SE2d 43), citing Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107).

Appellant is an automobile dealer. Appellee, Virginia Ernest, brought her car to appellant for servicing, including an oil change. The next day appellee’s husband picked up the vehicle, drove it a few blocks, and the engine stalled. When the car was re-started, the lifters were “making ... a loud racket”; and the engine made distinct rattling and grinding sounds as if the rod, pistons or crankshaft were loose or broken. The sound was that of an engine being run without oil. The engine was immediately shut off. Check of the oil dip stick showed no recorded oil level thereon. The vehicle subsequently was towed to appellant’s business. Appellant’s agents checked the oil, found it to be two, two and one-half, or three quarts low, filled the car with oil, and test drove it; appellant found the engine to perform satisfactorily and heard no abnormal noise. Neither the Ernests nor their mechanic was present at these tests. Thereafter, a letter was hand-delivered to appellant’s service manager. The letter instructed appellant not to repair the car until Mr. Ernest, his mechanic, and Mr. Johnson of appellant’s company could “agree on what parts will be replaced.” Appellant’s service manager would not sign the letter.

Appellee’s husband later offered to Mr. Backus to take the car “[i]f you will sign a letter stating that if anything happens to that car in fifty thousand miles, that can be associated with this incident, that you will fix it.” George Backus would not sign such a letter, and responded by saying “my word and Backus Pontiac’s word is your bond.” Appellee’s husband declined to accept such oral assurance, and he also refused to test drive the vehicle, as he wanted to see inside the engine. The mechanic who had checked the vehicle’s dip stick and had towed it was re-contacted by appellee’s husband. The mechanic opined that there was “no way that that engine could be satisfactory, because it had sounded so bad with the rods and the lifters and the crank bearings.” Appellee’s husband had the vehicle picked up from appellant’s business by the mechanic who disassembled and inspected the engine, and opined it was ruined. The rod bearings had “spun,” seized to the crankshaft, and scored; the crankshaft was damaged. Although not further disassembled, the engine would have been “damaged equally well all the way through it.” Another mechanic also viewed the disassembled engine and declared it was destroyed; he also opined that if a mechanic or anyone knowledgeable had checked the engine at appellant’s business, it would not have left that establishment in the condition it was in when viewed by him. Two days after the vehicle had been removed from appellant’s business and after the engine had been disassembled, appellant wrote appellee a letter offering to conduct further tests, although asserting that such tests were unnecessary, and assuring appellee it would stand by its work. In this letter appellant also stated: “Backus continues to feel it is totally unnecessary and unwise to go in and replace any perfectly good engine.” Evidence also was presented by appellee that a charge of $4,644.12 would constitute reasonable attorney fees.

Appellant enumerates four errors. The first three enumerations contend that for various reasons the trial court erred in entering judgment of the jury’s verdict in favor of appellee and refusing to grant defendant’s motion for a judgment notwithstanding the verdict as to the attorney fees awarded. The fourth enumeration of error asserts that the trial court erred in charging the jury on bad faith, stubborn litigiousness, or cause to appellee/plaintiff of unnecessary trouble and expense, as to the issue of expenses of litigation. Held:

1. Factual assertions in briefs unsupported by evidence in the record cannot be considered in the appellate process; as a general rule, allegations contained in pleadings do not constitute evidence nor are they to be accepted as true except to the extent they are admitted by the opposite party to be true. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

2. An appellate court is required to construe the evidence most strongly to support the verdict and judgment (McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777)), and every presumption and inference must be in favor of the verdict. Worn v. Sea-Cold Svcs., 135 Ga. App. 256 (3) (217 SE2d 425).

“‘“[M]ere refusal to pay a disputed claim, without suit is not sufficient to award attorney fees” ’ ” based on the grounds of either stubbornly litigious or causing plaintiff unnecessary trouble and expense. Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 580 (2) (373 SE2d 758); accord Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251). “ ‘Where no defense exists (to the suit or the contract), . . . forcing a plaintiff to resort to the courts in order to collect is plainly causing him “unnecessary trouble and expense.” ’ ” Ostrom v. Kapetanakos, 185 Ga. App. 728, 730 (2) (365 SE2d 849). The primary key to the test is whether there exists a bona fide controversy, and where none exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing him to go to unnecessary trouble and expense within the meaning of OCGA § 13-6-11. TypoRepro, supra. Where there exists a bona fide controversy, recovery of attorney fees is not authorized for stubborn litigiousness and unnecessary trouble and expense. Manderson, supra; Typo-Repro, supra; Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 221 (2) (308 SE2d 564).

However, questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide. Manderson, supra; Gorin v. FPA 2, 184 Ga. App. 239, 241 (361 SE2d 193); Jeff Goolsby, supra. Likewise, it is generally a question of fact for the jury to determine whether a bona fide controversy existed in a case. Manderson, supra; Jackson v. Brinegar, Inc., 165 Ga. App. 432, 437 (301 SE2d 493).

Even where a jury does not return the full amount sought by the plaintiff either under the counts of the complaint or for the full amount claimed for attorney fees, this is not per se evidence that the defendant had a reasonable defense and that a genuine controversy therefor existed as a matter of law. Compare Jackson, supra at 436 (2). Likewise “ ‘where a defendant has disclaimed all liability prior to litigation, the raising at trial of a dispute as to the amount of liability, without more, will not satisfy the bona fide controversy requirement.’ ” (Emphasis supplied; original emphasis deleted.) Southern R. Co. v. Crowe, 186 Ga. App. 244, 247 (2) (366 SE2d 846).

In the case sub judice, the main claims which appellee has asserted are ex contractu claims against appellant. Compare Hub Motor Co. v. Burdakin, 192 Ga. App. 872, 874 (2) (386 SE2d 854). Appellee contends, and we agree, that if there exists some evidence authorizing the award of attorney fees, this court cannot hold as a matter of law that there was a reasonable defense as to the main ex contractu claims of the appellee/plaintiff. Jackson, supra at 436.

Regardless of whether the claims asserted by appellant were ex contractu or ex delicto in nature, viewing the records and transcripts in Case Nos. A90A0768 and A90A1053 in a light most favorable to the verdict, as we are required to do, we find that there existed an issue of fact for the jury regarding whether appellee had been put to unnecessary trouble and expense within the meaning of OCGA § 13-6-11 (see Manderson, supra; Gorin v. FPA 2, supra; Jeff Goolsby, supra), and as to whether or not a bona fide controversy existed (see Manderson, supra; Jackson, supra).

Nor do we find convincing, from the state of these records, that the trial court’s ruling not to submit the issues of bad faith and stubborn litigiousness to the jury was per force a binding determination, as a matter of law, that a bona fide controversy existed for purposes of determining whether unnecessary trouble and expense had occurred (see Division 3, below). Neither do we find that the trial court’s grant of summary judgment to appellant on appellee’s Fair Business Practice Act claim, and its grant of directed verdict to appellant as to appellee’s punitive damage claim established, that there existed a genuine controversy, as a matter of law, regarding appellee’s separate ex contractu claims, particularly where before trial appellant denies liability as to those ex contractu claims. For regardless of the disposition of these collateral issues and claims, “ ‘[t]here being some evidence authorizing the award of attorney fees, this court cannot say as a matter or law that there was a reasonable defense to the main claim.’ ” Perfect Image v. M & M Elec. Constructors, 191 Ga. App. 605, 607 (2) (382 SE2d 405); see Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676, 677 (266 SE2d 796). Accordingly, we find that appellant’s first, second, and third enumerations of error are without merit.

3. Appellant asserts that “[t]he trial court erred in charging the jury on bad faith, stubbornly litigious or caused plaintiff unnecessary trouble and expense (plaintiff’s charge No. 7) on the issue of expenses of litigation for the trial court struck the grounds of bad faith and stubbornly litigious.”

The record reflects that, at trial, appellant posed an objection to the giving of appellee/plaintiff’s charge number 7 on the grounds that “[t]here was no evidence of any bad faith conduct, no evidence of stubborn litigiousness, and I contend that the charge of the [c]ourt was not tailored to the evidence and to the direction of the Court.”

The trial court, in fact, instructed the jury that “[f] or ring a [p]laintiff to sue where no bona fide controversy exists causes unnecessary trouble and expense and authorizes the award of attorney’s fees and costs of litigation, if you so find by a preponderance of the evidence. In that regard, I charge you that the expenses of litigation are not generally allowed as a part of [the] damages, but if the [defendant has caused the [p]laintiff unnecessary trouble and expense, you may allow them. You should determine from the evidence such attorney’s fees or other expenses, if any, as will be allowed by the jury upon a finding by a preponderance of the evidence.”

It is readily apparent that the trial court did not, as asserted by appellant, instruct the court either that attorney fees or other expenses of litigation could be awarded on the grounds of stubborn litigiousness or bad faith. It is clear from the cases cited in Division 2 above, and from a reading of the plain language of OCGA § 13-6-11, that “unnecessary trouble and expense” is a basis, separate and distinct from either bad faith or stubborn litigiousness, for the award of expenses of litigation. We are also satisfied, as evidenced in part by the court’s election not to include a reference either to bad faith or to stubborn litigiousness in its instruction, that the charge was adequately tailored, as required by law.

Decided April 27, 1990

Rehearing denied May 11, 1990

Owen H. Page, for appellant.

Chamlee, Dubus, Sipple & Walter, George H. Chamlee, for appellee.

This is not a case where an inapplicable instruction might draw the jury’s attention away from the true issue to be resolved in awarding attorney fees. The instruction in its entirety, especially that portion concerning the award of attorney fees, was a correct statement of the law and, as above stated, was adequately tailored to the issue to be resolved in determining whether to award such expenses. “[V]iewing the charge as a whole, we find that it ‘cannot reasonably be said to have misled the jury as to the appropriate principle of law applicable to the case’ ” sub judice. Gaines v. Crompton &c. Corp., 190 Ga. App. 863, 865 (2) (380 SE2d 498).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Banke, Presiding Judge.

text:
    A90A0068.
    BRIDGES v. SCHIER.
    (394 SE2d 408)
   Banke, Presiding Judge.

This is an appeal by the plaintiff from a judgment entered on a jury verdict for the defendant in a personal injury action arising from an automobile collision.

As the defendant was making a left turn into a parking lot, her vehicle was struck by a vehicle being operated by Tavakolian, who is not a party to this litigation, thus causing it to collide with the rear of the plaintiff’s vehicle, which was parked in the lot. The defendant testified that she saw Tavakolian’s vehicle approaching her but believed she had “plenty of room, plenty of time” to complete her left turn. She described what happened as follows: “I had gotten all the way in [the parking lot] except the right back fender. . . . [T]hen I saw the man coming and he got faster and faster just as I got in, almost in, he hit me right on the back. He pushed my car into a car that was parked headed out, which was [the plaintiff’s] car.” The investigating officer testified that Tavakolian’s vehicle had left skid marks approximately 20 feet long. He also testified that the defendant did not tell him that the approaching vehicle had increased its speed just before the impact. Held:

1. In the first of 21 separate enumerations of error, the plaintiff asserts that the verdict was contrary to the evidence. “ ‘It is not the responsibility of this court to weigh the evidence in regard to the action brought. Our task is merely to determine if there is sufficient evidence to authorize the trial court’s judgment. If there is any evidence to support the jury’s verdict and the trial court’s judgment, then all conflicts in the evidence will be resolved to favor the verdict.’ ” Ellis v. Cameron & Barkley Co., 171 Ga. App. 211, 213 (319 SE2d 38) (1984). There was at least some evidence in the present case to authorize the jury to conclude that the collision was caused by the negligence on the part of Tavakolian rather than by negligence on the part of the defendant. Accordingly, the verdict was not contrary to the evidence. Nolen v. Murray Indus., 165 Ga. App. 785 (1) (302 SE2d 689) (1983).

2. The plaintiff contends that the issue of insurance was improperly injected into evidence. The plaintiff’s physician stated that he had not been able to determine the cause of the plaintiff’s back and leg problems because the plaintiff had not undergone a CAT scan. The plaintiff explained that he had been unable to have the procedure performed because he did not have the funds to pay for it. The trial court then allowed the defendant to cross-examine the plaintiff concerning the availability of no-fault benefits which would have paid for the procedure.

As the accident occurred prior to the effective date of OCGA § 51-12-1 (b) (Ga. L. 1987, p. 915, § 3), evidence of collateral insurance benefits was generally inadmissible. See Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988). However, even prior to the abolition of the collateral source rule, it was permissible to cross-examine a plaintiff on the availability of insurance benefits “to test his averment that he did not return to see a certain physician (as the physician recommended) because he was unable to pay for the physician’s services.” Johnson v. Bryant, 178 Ga. App. 327 (3) (343 SE2d 397) (1986). Accordingly, the trial court did not err in permitting the cross-examination at issue in the present case.

3. The plaintiff enumerates as error the exclusion from evidence of certain portions of his physician’s deposition dealing with the extent of his injuries and their effect upon his ability to work, the admission into evidence of Certain testimony by the defendant’s medical expert on the same subject,' the court’s charge on the duty of a claimant to mitigate damages, and the court’s direction of a verdict against him on his claim for lost wages. However, because the jury returned a verdict for the defendant on the issue of liability, the issue of damages was never reached. Consequently, each of these rulings by the trial court must be considered harmless. See Nolen v. Murray Indus., supra, 165 at 787 (2).

4. The plaintiff complains that counsel for the defendant was erroneously allowed to make reference during his closing argument to the unavailability of his (the plaintiff’s) x-rays. Again, because the issue under discussion was the amount of the plaintiffs damages, any error in this regard was harmless.

5. The plaintiff complains that the trial court made an improper comment on the evidence when it responded in the negative to an inquiry by the jury as to whether a person making a left-hand turn is automatically at fault. The trial judge expressed no opinion as to what had or had not been proved, and his response was an accurate statement of the law. Accordingly, this enumeration of error is without merit.

6. The plaintiff contends that the trial court erred in failing to charge the jury that the defendant had the burden of proof with respect to his assertion that the conduct of a non-party had been the sole proximate cause of the accident. This principle was adequately covered by the court’s charge that “the party raising an issue to be proven whether that be the plaintiff or the defendant, bears the burden of proof on that issue.”

7. The plaintiff contends that the trial court erred in permitting two members of the law firm representing the defendant to participate in the closing argument. The plaintiff’s attorney waived the right to open the closing arguments, whereupon the two defense counsel argued and the plaintiff’s attorney gave the concluding argument. OCGA § 9-10-182 provides: “Not more than two counsel for each side shall be permitted to argue any case, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion.” The latter phrase has been interpreted to limit participation in the closing argument to one counsel per party. See White v. Cline, 174 Ga. App. 448 (1) (330 SE2d 386) (1985), Southern Bell Tel. & Tel. Co. v. LaRoche, 173 Ga. App. 298 (3) (325 SE2d 908) (1985). However, “[i]t is an old and sound rule that error to be reversible must be harmful. [Cits.] Thus when a plaintiff in error brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” Best Concrete Prods. Co. v. Medusa Corp., 157 Ga. App. 97, 101 (276 SE2d 147) (1981). The plaintiff has not suggested how he was harmed by the fact that two attorneys made closing arguments for the defendant, and since plaintiff’s counsel had the concluding argument, we are unable to perceive how this could have been harmful to him. We accordingly hold that this enumeration of error establishes no ground for reversal.

Decided May 11, 1990.

Greer, Klosik & Daugherty, John F. Daugherty, Robert J. McCune, for appellant.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Cynthia J. Becker, for appellee.

8. We have considered the plaintiff’s remaining enumerations of error and have found them to be without merit.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Carley, Chief Judge.

text:
    A90A0085.
    BOLDS v. THE STATE.
    (394 SE2d 593)
   Carley, Chief Judge.

Appellant was arrested on December 22, 1988, indicted on May 2, 1989, and filed a motion to quash the indictment on May 15, 1989. The motion to quash was predicated upon OCGA § 15-12-70 which provides for the disqualification of a grand juror “related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree. . . .” According to the motion to quash, the district attorney was a “party interested in the result of the case or matter” and, in violation of OCGA § 15-12-70, the district attorney’s aunt had served on the grand jury that returned the indictment against appellant. The trial court denied the motion to quash but certified its order for immediate review. We granted appellant’s application for an interlocutory appeal from the trial court’s order.

We do not reach the merits of appellant’s contention that the district attorney was a “party interested in the result of the case or matter” so as to disqualify his aunt from serving as a grand juror pursuant to OCGA § 15-12-70. Even assuming that she was disqualified, that disqualification would not be a viable ground for quashing the indictment. Smith v. State, 203 Ga. 569 (1) (47 SE2d 579) (1948); Farrar v. State, 187 Ga. 401, 403 (1) (200 SE 803) (1939); Bitting v. State, 165 Ga. 55, 59 (2) (139 SE 877) (1927); Phillips v. State, 167 Ga. App. 260, 263 (3) (305 SE2d 918) (1983); Hall v. State, 7 Ga. App. 115, 116 (1) (66 SE 390) (1909).

Appellant urges that he should nevertheless be entitled to rely upon the purported disqualification as a ground for seeking to quash the indictment because he had no notice of the composition of the grand jury before it returned the indictment against him. There is, however, no authority for the proposition that such a lack of notice would be an exception to the rule that a grand juror disqualification based upon OCGA § 15-12-70 does not constitute a viable ground for quashing an indictment. “[C]auses which would tend to disqualify a grand juror propter affectum do not furnish sufficient ground for a plea in abatement to the indictment. [Cit.] ... It is true that there are several. . . decisions of the Supreme Court in which there are to be found intimations that the defendant might raise the point by plea in abatement, if he could prove that he had no notice that his case was to be investigated by the grand jury and had no opportunity to present his objections or challenge before the indictment was returned; but in none of these cases is there any direct ruling on the proposition.” Hall v. State, supra at 117. In Bitting v. State, supra at 61-62 (2), the Supreme Court did make a “direct ruling on the proposition” and concluded that, regardless of a lack of notice, a grand juror disqualification based upon OCGA § 15-12-70 does not constitute a viable ground for quashing an indictment. It necessarily follows that the trial court correctly denied appellant’s motion to quash the indictment returned against him.

Decided May 11, 1990.

Ballard, Slade & Ballard, H. Geoffrey Slade, for appellant.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A0157.
    MORGAN v. THE STATE.
    (394 SE2d 588)
   Banke, Presiding Judge.

On appeal from his conviction of driving under the influence of alcohol, the appellant contends that the trial court erred in denying his plea of former jeopardy.

On February 24, 1989, a Georgia state patrolman began pursuing the appellant in Pike County approximately one-half mile from the Spalding County line, after a radar check revealed that he was doing 69 miles per hour in a 55-mile-per-hour zone. The patrolman stated that he observed the appellant’s vehicle “weaving” after it crossed into Spalding County and that he detected a strong odor of alcohol on the appellant’s breath upon stopping him. It was further shown that the appellant had registered .19 on a breathalyzer test administered to him following his arrest.

Decided May 11, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

John T. Newton, Solicitor, Griffin E. Howell III, Assistant Solic itor, for appellee.

The patrolman issued the appellant two uniform traffic citations, one charging him with speeding in Pike County and directing him to answer that charge in the Pike County Probate Court on March 22, 1989, and the other charging him with driving under the influence of alcohol in Spalding County and directing him to answer that charge on April 28,1989, but without specifying the court or county in which he was to do so. On March 8, 1989, an accusation was filed in the State Court of Spalding County charging the appellant with driving under the influence. On April 20, 1989, the appellant pled guilty to the speeding charge in the Probate Court of Pike County and was ordered to pay a fine of $97. Thereafter, he filed a “motion to dismiss and plea in bar” in the State Court of Spalding County, seeking dismissal of the DUI accusation on double jeopardy grounds. After that motion was denied, he entered a plea of nolo contendere to the DUI charge, specifically reserving the right to appeal the denial of his plea in bar. Held:

OCGA § 16-1-7 (b) requires that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .” In the present case, the charges of speeding and driving under the influence of alcohol clearly arose from the same transaction and therefore are considered to have arisen “from the same conduct” within the meaning of this Code section. See McCannon v. State, 252 Ga. 515, 518, n. 5 (315 SE2d 413) (1984). It is apparent that the patrolman elected to bring the speeding charge in Pike County because that was where he had clocked the appellant on radar and to bring the DUI charge in Spalding County because that was where he had observed his erratic driving. (Of course, under OCGA § 17-2-2, either offense could have been prosecuted in either county.) Obviously, the Solicitor of the State Court of Spalding County cannot be charged with knowledge or responsibility under these circumstances for the action of the Judge of the Probate Court of Pike County in accepting the appellant’s plea of guilty to the speeding charge. Accordingly, we hold that the entry of this plea did not operate as a bar to the DUI prosecution. See Powe v. State, 257 Ga. 563 (361 SE2d 811) (1987); Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0164.
    BLACKMON et al. v. THOMPSON et al.
    (394 SE2d 795)
    Decided May 11, 1990.

      James Booker, for appellants.

      Love & Willingham, Robert P. Monyak, Daryll Love, Thomas K. Foster, for appellees.
   Carley, Chief Judge.

On June 15, 1988, appellant-plaintiffs filed this medical malpractice action against appellee-defendants, alleging that the cause of action arose on June 16, 1986. However, appellants failed to file with their complaint the affidavit of an expert as required by OCGA § 9-11-9.1, which became effective July 1, 1987. The lack of an expert’s affidavit was raised in appellees’ answer and they thereafter moved to dismiss the complaint on that ground. Appellants never attempted to amend their complaint by filing such an affidavit and the trial court granted appellees’ motion to dismiss. Appellants appeal from this order.

Appellants urge that OCGA § 9-11-9.1 affects substantive rights and thus cannot be applied retrospectively to their cause of action which arose prior to its effective date. This contention is controlled adversely to appellants by Precision Planning v. Wall, 193 Ga. App. 331, 332 (387 SE2d 610) (1989): “In the instant case, the OCGA § 9-11-9.1 requirement of submitting an expert’s affidavit along with the complaint did not affect the substantive right of action for professional malpractice; it alters neither the standard of care to be applied nor the measure of recovery. The statute merely prescribes a procedure for enforcing that right, evidently with the purpose of preventing frivolous or unsustainable actions. Accordingly, the trial court [did nor err] in applying the statute [retroactively], and in [granting appellees’ motion] to dismiss. [Cits.]”

Judgment affirmed.

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


text:
    A90A0221.
    SPARKS v. THE STATE.
    (394 SE2d 407)
   Carley, Chief Judge.

Appellant was tried by a jury and found guilty of possession of cocaine and driving under the influence of drugs in violation of OCGA § 40-6-391 (a) (2). He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts. The sole enumeration of error raises the general grounds.

Decided May 11, 1990.

Willis A. Duvall, for appellant.

J. Brown Moseley, District Attorney, for appellee.

1. Appellant consented to give a urine sample. At the Georgia State Crime Lab, the sample tested positive for cocaine. “ ‘The presence of cocaine in a defendant’s bodily fluids is considered to be direct positive evidence of possession of cocaine. (Cit.)’ [Cits.] Accordingly, there was sufficient evidence produced at trial to authorize any rational trior of fact to find appellant guilty beyond a reasonable doubt of possession of cocaine. [Cits.]” Buffington v. State, 190 Ga. App. 365 (378 SE2d 884) (1989). See also Stevens v. State, 165 Ga. App. 814, 815 (1) (302 SE2d 724) (1983).

2. The evidence that appellant had ingested cocaine was the only evidence adduced to show his violation of OCGA § 40-6-391 (a) (2). However, that statute does not prohibit driving after ingesting any quantity of drugs. Compare OCGA § 40-6-391 (a) (4). It prohibits driving “[u]nder the influence of any drug to the extent that it is less safe for [one] to drive. . . .” OCGA § 40-6-391 (a) (2). There was nothing from which the jury could have inferred that appellant was under the influence of cocaine to the extent that he was a less safe driver, such as additional evidence of his physical condition or conduct at the time of arrest. Under these circumstances, the evidence is not sufficient to convict appellant of driving under the influence in violation of OCGA § 40-6-391 (a) (2). See Turner v. State, 95 Ga. App. 157 (97 SE2d 348) (1957); Clay v. State, 193 Ga. App. 377, 379 (2) (387 SE2d 644) (1989). Therefore, the conviction and sentence for violation of OCGA § 40-6-391 (a) (2) must be set aside.

Judgments affirmed in part and reversed in part.

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


text:
    A90A0252.
    WILLIAMS et al. v. MAYOR & CITY COUNCIL OF CARROLLTON.
    (394 SE2d 389)
   Carley, Chief Judge.

Pursuant to the provisions of OCGA § 22-2-100 et seq., appelleecondemnor instituted proceedings to condemn appellant-condemnees’ property. Appellants were dissatisfied with the amount that was ultimately awarded by the special master and they appealed to the superior court. The issue of just and adequate compensation was tried before a jury and appellants appeal from the judgment that was entered by the superior court on the jury’s verdict.

Decided May 11, 1990.

Jack F. Witcher, John E. Gilchrist, Johnson, Beckham & Price, William P. Johnson, for appellants.

Wiggins & Camp, William J. Wiggins, for appellee.

1. The jury’s verdict was within the range of the evidence that was adduced as to the fair market value of the property. Accordingly, appellants’ enumeration of the general grounds is without merit. Southern v. Cobb County, 78 Ga. App. 58 (2) (50 SE2d 226) (1948).

2. Appellants enumerate as error several instances wherein their witnesses were not allowed to testify as to a separate value for the “chewacla” soil located on the property.

The fact that “chewacla” soil was present was a relevant factor to be considered in determining the overall value of the property. See generally State Hwy. Bd. of Ga. v. Shierling, 51 Ga. App. 935 (1, 2) (181 SE 885) (1935). However, the separate value of the “chewacla” soil would certainly not be a relevant inquiry. “[L]and containing [valuable] deposits . . . may be of greater market value than land without [such] deposits, but. . . the land and the deposits constitute one subject matter and there cannot be a recovery for the land as such, and also for the . . . deposits.” Southern R. Co. v. Miller, 94 Ga. App. 701, 704 (1) (96 SE2d 297) (1956). “The existence of [chewacla soil] on the land taken was certainly a factor to be considered in determining its value, but the loss of [such soil] was not a separate element of damages which [appellants] were entitled to recover in addition to recovering the fair market value of the land as enhanced by [chewacla soil]. [Cit.]” Department of Transp. v. Willis, 165 Ga. App. 271, 272 (2) (299 SE2d 82) (1983). Thus, the only relevant inquiry was the overall value of the property, with the fact that the property contained “chewacla” soil being taken into account. The trial court did not err in excluding irrelevant testimony as to the separate value of the “chewacla” soil located on the property.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A90A0269.
    HOGAN v. PONY EXPRESS COURIER CORPORATION et al.
    (394 SE2d 391)
   Cooper, Judge.

This appeal is from the trial court’s grant of appellees’ motion for judgment notwithstanding the mistrial in a case arising out of an automobile collision between a car in which appellant was a passenger and a tractor trailer truck.

Appellant’s car was travelling in the single eastbound lane of a highway which at the point of the collision, consisted of two westbound lanes and one eastbound lane, divided by a double yellow line. It is undisputed that appellant’s driver put his left turn signal on, crossed the dividing yellow lines, and began travelling east in one of the westbound lanes. A Pony Express van had been behind appellant’s car for approximately one-half mile and the driver, assuming that appellant’s car was going to turn left at the next driveway stayed in the eastbound lane and increased her speed to pass appellant’s car. Although the evidence is somewhat conflicting regarding the next sequence of events, it appears that when the driver of the van saw a tractor trailer truck travelling west in the same westbound lane in which appellant’s car was travelling east, she let off the gas in an attempt to give appellant’s car room to move back into the eastbound lane; however, upon realizing that a collision between appellant’s car and the truck was imminent, she pulled onto the shoulder and went down an embankment. Appellant’s car collided with the truck in the westbound lane, killing appellant’s driver and injuring appellant. Appellant brought a lawsuit against the estate of the driver of the car in which she was a passenger, the driver of the tractor trailer truck and his employer, the driver of the Pony Express van, Pony Express and its insurer. Before the conclusion of the trial, appellant reached a settlement with all defendants except Pony Express, its driver and insurer. When the jury was unable to reach a verdict, the court declared a mistrial.

1. In her first two enumerations of error, appellant contends that the trial court erred in granting appellees’ motion for judgment notwithstanding the mistrial. “ ‘A motion for judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where ‘(t)here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ [Cits.]” Georgia Power Co. v. Purser, 152 Ga. App. 181, 182 (262 SE2d 473) (1979). Appellant contends that the evidence is conflicting as to the sequence of events which occurred after appellant’s car crossed the double yellow lines into the westbound lane. An accident reconstructionist testified that in his opinion there was a slight impact between appellant’s car and the Pony Express van when appellant’s car tried to reenter the eastbound lane. He also testified that but for the presence of the Pony Express van, appellant’s car would have been able to reenter the eastbound lane and the collision between appellant’s car and the tractor trailer truck would not have occurred. Appellant contends that the evidence was sufficient for the jury to conclude that the van driver was negligent in following too closely, in attempting to pass appellant’s car on the right, or in preventing appellant’s car from reentering the eastbound lane. We acknowledge, as did the trial court in granting appellees’ judgment notwithstanding the mistrial, that the sequence of events leading up to the collision is somewhat unclear; however we agree with the trial court that the evidence introduced, with all reasonable deductions and inferences therefrom, does not support a finding that appellees were negligent in any manner. “ ‘Negligence is not to be presumed, but is a matter for affirmative proof. In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence.’ [Cit.]” Neal v. Miller, 194 Ga. App. 231, 232 (390 SE2d 125) (1990). Although issues of negligence, proximate cause and contributory negligence are typically matters for the jury, appellant has failed to prove any fault on the part of appellees. Accordingly, the trial court did not err in directing a verdict in favor of appellees. See Clayton v. Larisey, 190 Ga. App. 512, 514 (379 SE2d 789) (1989).

Decided May 11, 1990.

Mathis, Sands, Jordan & Adams, Charles A. Mathis, Jr., Brian G. Combs, Virgil L. Adams, for appellant.

2. Appellant contends that the trial court erred in failing to instruct the jury in the exact statutory language of OCGA § 40-6-43. We have examined the charge and find that it accurately stated the law in substance, and there was no error in failing to charge exactly as appellant requested. Brooks v. Coliseum Park Hosp., 187 Ga. App. 29, 34 (369 SE2d 319) (1988).

3. In her final enumeration of error, appellant contends that the trial court erred in finding that the last clear chance doctrine was inapplicable to the case. We disagree. The last clear chance doctrine requires among other things that there be negligence on the part of the plaintiff. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (4) (360 SE2d 280) (1987). Although there was ample evidence that appellant’s driver was negligent, there is nó evidence that his negligence was imputed to appellant. Therefore, the trial court correctly ruled that the last clear chance doctrine was inapplicable.

Judgment affirmed.

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

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, for appellees.


text:
    A90A0324.
    ROBINSON et al. v. DEPARTMENT OF TRANSPORTATION.
    (394 SE2d 590)
   McMurray, Presiding Judge.

Following the decision of this court in Robinson v. Dept. of Transp., 185 Ga. App. 597 (364 SE2d 884), plaintiffs Robinson and Glover filed this action seeking compensation for the alleged taking and interference with certain burial easements by defendant Georgia Department of Transportation. Plaintiffs’ purported “renewal action” is predicated on alternative theories of inverse condemnation and trespass. Plaintiffs appeal the grant of defendant’s motion for summary judgment. Held:

While plaintiffs allege that defendant’s ongoing use of the burial easements is a continuing trespass, this contention overlooks the fact that defendant initiated the condemnation of the fee simple title to the real property at issue on March 26, 1981, so that under the provisions of OCGA § 32-3-7 (a), defendant has owned fee simple title to the real property in question since that date. Thus, plaintiffs had no remaining rights in the real property upon which a trespass or inverse condemnation claim could be predicated after that date. See generally Dorsey v. Dept. of Transp., 248 Ga. 34, 36 (279 SE2d 707).

Therefore, the statute of limitation applicable to either of plaintiffs’ claims commenced on or before March 26, 1981. The applicable statute of limitation, OCGA § 9-3-30, provides that: “All actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues.”

“Where property has been taken or damaged for public purposes by public authorities or a quasi-public corporation, the party injured, being entitled under the constitution ... to ‘just and adequate compensation,’ may bring one action therefor, within the time required by the statute of limitations . . .” Georgia Power Co. v. Moore, 47 Ga. App. 411, 412 (2) 413 (170 SE 520). “It is thus apparent that the installation of the public works and their resulting damage occurred many years ago. Any cause of action upon the theory of the quoted constitutional provision accrued immediately upon the installation of the public works involved here . . . and thus not within four years immediately prior to the filing of this action. Therefore, an action on this theory is barred by the statute of limitation governing trespass to real property. [Cits.]” Mitchell v. City of Atlanta, 217 Ga. 202, 203 (1) (121 SE2d 764). See also Southern R. Co. v. Leonard, 58 Ga. App. 574, 581 (199 SE 433).

Decided May 11, 1990.

Bondurant, Mixson & Elmore, Jeffrey O. Bramlett, Suzanne F. North, for appellants.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Roland F. Matson, Charles M. Richards, Senior Assistant Attorneys General, for appellee.

Although the actual taking or trespass alleged by plaintiffs occurred more than four years prior to the filing of this action on August 5, 1988, plaintiffs contend that their action is not barred by the statute of limitation since they have brought a proper renewal action pursuant to OCGA § 9-2-61 (a) asserting the claims for compensation were dismissed on procedural grounds, which dismissal was affirmed in the previous appearance of this case before this court. Robinson v. Dept. of Transp., 185 Ga. App. 597, supra. However, OCGA § 9-2-61 (a) has no application to this case since this action is not the recommencement of an earlier action which a “plaintiff discontinues or dismisses . . .” and the plaintiffs in the present action were not plaintiffs in the condemnation action. See Adams v. Cobb County, 184 Ga. App. 879 (2) (363 SE2d 260). Furthermore, OCGA § 9-2-61 (a) does not apply due to the absence of an earlier valid suit by plaintiffs. Fowler v. Aetna Cas. &c. Co., 159 Ga. App. 190, 192-194 (3) (283 SE2d 69).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0383.
    WILLINGHAM v. THE STATE.
    (394 SE2d 393)
   Carley, Chief Judge.

Appellant and four others were co-indicted for commission of the following offenses: Criminal attempt to commit first degree forgery; two counts of first degree forgery; and, three counts of financial transaction card theft. Two of appellant’s four co-indictees pled guilty prior to trial. Appellant and the two remaining co-indictees were tried before a jury and found guilty of all but one of the two first degree forgery counts. Appellant appeals from the judgments of conviction and sentences that were entered by the trial court on the jury’s guilty verdicts.

1. One of appellant’s original co-indictees who had pled guilty was called as a witness for the State. In the course of her direct testimony, this co-indictee gave a version of the events which was essentially exculpatory of appellant. Counsel for the State was thereafter properly allowed to prove that the co-indictee had given a prior statement which was inculpatory of appellant. See generally Davis v. State, 249 Ga. 309, 313 (3) (290 SE2d 273) (1982).

Construing the co-indictee’s prior statement most favorably for the State, there was a conspiracy which included appellant and, in the course of a least one of the crimes that had been committed in furtherance of that conspiracy, appellant had acted as a look-out. The co-indictee’s prior statement served not only as evidence which was impeaching of her, but also as substantive evidence which was probative of appellant’s guilt. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982); Lockhart v. State, 169 Ga. App. 931, 932 (1) (315 SE2d 455) (1984). Although the evidence may not have shown appellant’s active participation in all of the crimes that were attempted or committed in furtherance of the conspiracy, it was nevertheless sufficient to authorize a rational trior of fact to find him guilty beyond a reasonable doubt as a party to all of those crimes. Ford v. State, 163 Ga. App. 745 (296 SE2d 85) (1982). It follows that appellant’s enumeration of the general grounds is without merit.

2. On direct examination, the co-indictee was asked how she had first met the other four members of the conspiracy. She responded: “Well, I was smoking crack and I was over to the guy’s house.” Counsel for one of appellant’s co-defendants moved for a mistrial, urging that her client’s character had been impermissibly placed into evidence. The trial court denied the motion, but gave curative instructions that the jury was to disregard the reference to drugs. The trial court’s failure to grant the motion for mistrial is enumerated as error.

Since the record does not indicate that appellant ever joined in his co-defendant’s motion, there is considerable doubt whether he is now entitled to raise the issue. However, even assuming that appellant does have standing, there was no error. The co-indictee’s response implicated the character of no one other than herself. Her testimony was merely that she had been smoking crack. Moreover, the motion for mistrial was not renewed after the trial court gave curative instructions. Mach v. State, 111 Ga. App. 423, 424 (2) (142 SE2d 87) (1965).

3. The trial court did not err in allowing into evidence testimony regarding the commission of a similar crime in another county which had occurred some two hours prior to the commission of the crimes which underlay the instant prosecution. Jackson v. State, 225 Ga. 39, 44 (4) (165 SE2d 711) (1969); Fluellen v. State, 163 Ga. App. 425, 426 (5) (294 SE2d 653) (1982).

4. The trial court did not err in denying appellant’s motion to sever his trial from that of his two co-defendants. Stevens v. State, 165 Ga. App. 814, 815 (3) (302 SE2d 724) (1983).

Decided May 11, 1990.

Porter & Lehman, Thomas L. Lehman, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

5. Over objection, the trial court admitted into evidence the post-arrest statement of one of appellant’s co-defendants who did not testify and who was not, therefore, subject to cross-examination.

The co-defendant’s statement was, standing alone, inculpatory of neither the co-defendant himself nor appellant. In his statement, the co-defendant denied any wrongdoing and admitted only that he and the four other individuals, including appellant, had been together on the date the crimes were committed. Merely placing appellant in the company of a co-defendant who denies any wrongdoing is not, in and of itself, inculpatory. The trial court did not err in admitting the statement into evidence. Owens v. State, 193 Ga. App. 661, 662 (3) (388 SE2d 712) (1989).

Judgments affirmed.

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