author: Carley, Judge. Deen, Presiding Judge, Banke, Presiding Judge, Beasley, Judge,

text:
    74199.
    TANDY CORPORATION v. McCRIMMON.
    (360 SE2d 70)
   Carley, Judge.

Appellee-plaintiff is a licensed member of the Georgia Bar. Acting pro se, he filed this action to recover actual and punitive damages for appellant-defendant’s alleged fraud in connection with the sale of certain computer equipment and software. Along with the complaint, appellant was also served with 15 interrogatories and 5 requests for production of documents. Appellant objected to all of the requested discovery, but nevertheless provided unsworn responses to five of the interrogatories. Appellee filed a motion to compel, and on April 1, 1985, the trial court entered an order requiring appellant to respond fully within 30 days to all but one of the five requests for production and to all of the interrogatories “to which [appellant had] previously objected.”

On May 1, 1985, appellee was mailed what was styled as appellant’s supplemental responses to the interrogatories and requests for production. However, no documents nor copies of documents were actually produced. Instead, appellant’s response was that the documents sought by appellee in two of the requests for production either had been destroyed in the normal course of business or would be impossible to locate and that the documents sought by appellee in the other two requests would be produced only upon his payment of copying expenses and the entry of a proposed protective order. The protective order proposed by appellant specified, in essence, that only one copy of each of the documents would be made, that such copy would be retained at all times by appellee in a secure location in his office, and that appellee could not make any of the material available to anyone except his employees or expert witnesses involved in the preparation of the case.

On May 16, 1985, appellee moved for the imposition of sanctions based upon appellant’s failure to comply with the discovery order of April 1, 1985. Appellant responded by submitting the affidavit of its counsel who stated, in essence, that sufficient answers had been provided to all the interrogatories and that, appellee had not availed himself of appellant’s conditional offer to allow him to inspect at least some of the requested documents. With regard to the conditional aspect of that offer, counsel averred as follows: “To allow [appellee] to do whatever he wishes with documents that contain confidential and sensitive information on [appellant’s] business could expose [appellant] to competitive disadvantage in the marketplace. The protective order suggested by me is a reasonable restraint upon [appellee] to limit his use of the documents to the case at bar.”

Although appellee’s motion for sanctions was initially heard on June 6, 1985, it was not ruled upon until well over a year later. However, at the hearing, the trial court orally indicated to appellee’s counsel that it believed the discovery order had been violated. Several days after the hearing on the motion for sanctions, appellant finally moved for a protective order along the lines of the proposed order it had previously submitted to appellee. The following month, a judge who had not previously been involved in the case granted appellant’s motion and entered such protective order. Appellee thereafter renewed his motion for sanctions and, on October 7, 1986, the trial court finally entered its order granting that motion. Contained in that order were specific findings that appellant’s failure to comply with the discovery order of April 1, 1985, was “wilful, intentional, and was done in such a manner as to interfere with the [appellee’s] right to prosecute his case and to obtain lawful discovery.” The trial court additionally concluded that there was “nothing in the disputed documents of a sensitive nature which would have justified [appellant’s] withholding of the documents from [appellee],” and that, even if there had been, appellant had waived its right to object to their disclosure on this basis by failing to raise such an objection prior to the expiration of the 30-day period allowed in the discovery order for their production. The trial court once again ordered appellant to produce the documents and further ordered appellant to pay appellee “the sum of $4,000.00 for attorney’s fees for bringing of all motions, pleadings, appearances, court costs, depositions, transcript take-downs, and any other expenses incurred from the date . . . [appel-lee’s] initial motion to compel discovery was filed.” The trial court certified its order for immediate review and this appeal results from this court’s grant of appellant’s subsequent application for an interlocutory appeal.

1. “The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse. [Cits.]” Harwood v. Great American Mgt. &c., 171 Ga. App. 488, 491 (320 SE2d 269) (1984). Moreover, the trial court’s discretion in discovery matters is particularly broad when it is dealing with a party’s failure to obey a discovery order that it has previously entered in the case. Pursuant to OCGA § 9-11-37 (b) (2), a wide range of options is available to the trial court in such a situation and, in addition, that code section specifies that “the court shall require the party failing to obey the order or the attorney advising him, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” (Emphasis supplied.)

In the present case, there can be no doubt that appellant was, at the very least, in violation of that portion of the trial court’s discovery order of April 1, 1985, which compelled responses to appellee’s requests for production. The protective order that was later obtained by appellant obviously did not serve to cure this violation, the time for seeking such protection having long since expired. See Williamson v. Lunsford, 119 Ga. App. 240, 241 (5) (166 SE2d 622) (1969). The record also provides ample support for the trial court’s determination that appellant’s conduct was characterized by its deliberate intent to evade its discovery obligations and thereby to frustrate appellee’s right to prosecute his case. The trial court did not err in finding appellant’s conduct to evince a wilful failure to obey the discovery order.

2. In a separate enumeration of error, appellant challenges the sufficiency of the evidence to support the award of $4,000 as attorney’s fees. Our review of the record reveals that there is no evidence upon which the trial court could base its determination as to the reasonable expenses actually caused by the failure of appellant to comply with the discovery order. In fact, during the sanctions hearing, appellant’s attorney pointed out to the trial court that appellant had not had an opportunity to be heard with respect to the award of attorney’s fees. In response, the trial court stated “the Code recognizes the Court as an expert without taking testimony as capable of making a determination as to what amount of attorney’s fees are justified without hearing evidence from either party and that is what the Court finds is reasonable under the circumstances.” We cannot agree with the trial court’s description of its authority to award expenses under OCGA § 9-11-37 (b) without some evidence upon which to base a determination that such expenses were “caused by the failure” of the party to comply with the discovery order. Accordingly, the award of attorney’s fees by the trial court is vacated and the case is remanded for a hearing as to the amount of expenses of litigation to be awarded in accordance with OCGA § 9-11-37 (b) (2).

3. The partial dissents fail to comprehend or acknowledge that, in this case, we have absolutely no authority to address the issue of whether an attorney who is representing himself is authorized to collect attorney’s fees pursuant to OCGA § 9-11-37 (b) (2). The award of attorney’s fees to appellee was not enumerated as error on this basis and, accordingly, “this court is without jurisdiction to consider it.” Riggins v. State, 128 Ga. App. 478 (197 SE2d 154) (1973). “The duty of the appellate court is to correct errors alleged to have been made in the trial court and not to manufacture them.” Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970). See also Slaughter v. Linder, 122 Ga. App. 144, 148 (2) (176 SE2d 450) (1970); Sunn v. Trophy Marine, 176 Ga. App. 68 (334 SE2d 884) (1985).

Judgment affirmed in part and vacated in part and case remanded with direction.

Birdsong, C. J., McMurray, P. J., Sognier, Pope and Benham, JJ., concur. Been, P. J., Banke, P. J., and Beasley, J., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

This case, wherein the attorney litigant has apparently prevailed in his claim for attorney fees, may defeat the old adage that “he who acts as his own lawyer has a fool for a client.” White v. State, 105 Ga. App. 616, 627 (125 SE2d 239) (1962). Nevertheless, I concur fully with Presiding Judge Banke’s partial concurrence and dissent.

Banke, Presiding Judge,

concurring in part and dissenting in part.

I fully agree with the majority that the trial court was authorized to impose sanctions upon Tandy Corporation pursuant to OCGA § 9-11-37 (b) (2) for failure to comply with its discovery obligations. Indeed, so reprehensible do I find Tandy’s conduct in the matter that I believe the trial court would have been justified in striking its answer and entering default judgment against it pursuant to § 9-11-37 (b) (2) (C). However, contrary to the majority’s view in Division 3, I do not believe the courts of this state are authorized under current law to award attorney fees to the prevailing party in a discovery dispute, even to one who is a licensed attorney, where that party is not represented by an attorney but is proceeding pro se.

The portion of the statute authorizing an award of attorney fees against a party for failing to comply with a discovery order reads as follows: “In lieu of any of the foregoing orders, or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” (Emphasis supplied.) The word “expenses,” as used in this statute, quite clearly denotes monetary expenses; and a pro se litigant, even one who is a licensed attorney, obviously incurs no monetary expense for attorney fees. While it may be argued that a licensed attorney-litigant should be entitled to some remuneration for his own services in securing an opposing party’s compliance with a discovery order, only by the most tortured of constructions can that result be reached under the present statute.

Additionally, it strikes me that attorneys already enjoy a considerable advantage over non-lawyers in prosecuting claims such as the one at issue in the present case, wherein the relatively small amount of actual damages involved and the considerable financial ability of the defendant to resist the claim may make the employment of independent counsel by the plaintifF an unrealistic option. To extend a further advantage to attorney-litigants by allowing them and them alone to recover compensation for their time spent in prosecuting such claims compounds that advantage and runs the risk of contributing to the unfortunately widespread public perception that the courts exist firstly and foremostly for the benefit of the legal profession. Non-lawyers are, after all, as fully entitled to represent themselves in lawsuits in the courts of this state as are licensed attorneys, Ga. Const, of 1983, Art. I, Sec. I, Par. XII; and they, too, may experience lost income or lost business opportunities as the result of their time spent in doing so.

Although the issue of whether a pro se litigant may recover attorney fees as expenses of litigation in a discovery dispute appears as one of first impression in this state, the federal courts have almost universally disallowed such recoveries construing analogous statutory provisions. For example, every federal circuit court of appeals which has addressed the issue appears to have held that a pro se litigant may not recover attorney fees under 42 USC § 1988 for representing himself in a civil rights action. See Lovell v. Snow, 637 F2d 170 (1st Cir. 1981); Pitts v. Vaughn, 679 F2d 311 (3rd Cir. 1982); Cofield v. City of Atlanta, 648 F2d 986 (5th Cir. 1981); Davis v. Parratt, 608 F2d 717 (8th Cir. 1979); Turman v. Tuttle, 711 F2d 148 (10th Cir. 1983). In litigation involving the Freedom of Information Act, the federal circuits are split on the issue of whether a pro se plaintiff who is also an attorney may recover attorney fees, with the Sixth Circuit holding that he cannot, Falcone v. I.R.S., 714 F2d 646 (6th Cir. 1983), cert. den. 466 U. S. 908 (104 SC 1689, 80 LE2d 162) (1984), and the Fifth Circuit holding that he can. Cazalas v. U. S. Dept. of Justice, 709 F2d 1051 (5th Cir. 1983). On the issue of whether non-attorney plaintiffs may recover attorney fees for representing themselves in FOIA actions, the federal courts are virtually united in concluding that they cannot, with only the District of Columbia Circuit holding unconditionally that they can. See Wolfel v. United States, 711 F2d 66, 68 (6th Cir. 1983), and cases cited therein.

Therefore, I would vacate the trial court’s award of attorney fees to McCrimmon, for I do not read OCGA § 9-11-37 (b) (2) as authorizing payment of attorney fees to a pro se litigant, even one who is a licensed attorney; and I would remand the case for a new assessment of sanctions, which does not include such compensation.

I am authorized to state that Presiding Judge Deen joins in this opinion.

Beasley, Judge,

concurring in part and dissenting in part.

I concur with the majority, but the direction to the trial court should be more explicit lest we invite additional error which otherwise is bound to occur. When we remand with direction to the trial court, we thereby exert a more active role and go beyond merely ruling on whether or not that court has committed error as enumerated. We then function as an instructive court, affecting further proceedings in the case. In that regard, we are not addressing issues not raised but rather assuring insofar as possible that we do not directly instigate error in the future proceedings.

The scope of the remand is inherently in error unless it is clarified. In addition, if its scope is not made clear, this opinion can be construed to consider attorney fees as awardable as a discovery sanction in pro se cases in the future. While the majority directs that the circumference of the hearing be limited to “expenses of litigation,” with which I have no quarrel, it does not point out that, as a matter of law, those expenses in this case would not include “attorney fees” as provided in the award we are vacating, because McCrimmon was acting pro se. Only those expenses authorized by OCGA § 9-11-37 may be considered.

First, attorney fees are fees incurred by a party who chooses to employ a professional to represent that party in legal matters, or in other words, fees charged for professional services rendered to another in representing that other’s interests. When a party chooses to represent himself, there is no such other advocate.

Second, in the OCGA § 9-11-37 context, the attorney fees are those arising out of the pursuit of discovery in a lawsuit. The statute explicitly provides for “expenses.” Mr. McCrimmon’s legal services to himself are unquestionably valuable. And no doubt his attention to his own lawsuit negatively impacted the availability of his time and stock in trade which otherwise would be available to others. But such is not an “expense.” It would merely mean the transfer of money from one of his pockets to the other, were he to bear this “expense” in the absence of the sanction against the recalcitrant defendant. The sanction creates the expense, in effect. Without the sanction, the “fee” would not exist. Instead, there would be no “expense” but rather the party’s choice to use his own time and efforts and expertise instead of hiring another to represent him.

Decided July 16, 1987.

Everette L. Doffermyre, Jr., Alan R. Perry, Jr., for appellant.

Edward W. McCrimmon, pro se.

To so construe the statute reads into it a legislative intent to include the fair market value of one’s own legal services to oneself, lay or attorney, in the provision of “reasonable expenses, including attorney fees.” If the legislature meant to include the fair market value of self-representation as a sanction, it could easily have written “reasonable expenses, including attorney fees or the fair market value of one’s self-representation,” or words to that effect. Instead, it left the scope of the sanction precisely to “expenses, including attorney fees.”

I recognize that to the contrary is judicial interpretation of congressional intent in the Freedom of Information Act somewhat analogous proviso for the award of attorney fees. 5 USCA § 552 (a) (4) (E). See Cox v. U. S. Dept. of Justice, 601 F2d 1, 5 (5-7) (D.C. Cir. 1979); Crooker v. U. S. Dept. of Treasury, 663 F2d 140, 141 (1) (D.C. Cir. 1980); Jordan v. U. S. Dept. of Justice, 691 F2d 514, 523 (6) (D.C. Cir. 1982); Holly v. Acree, 72 FRD 115 (D.C. 1976), aff’d 186 U. S. App. D.C. 329 (569 F2d 160) (1977); Jones v. U. S. Secret Svc., 81 FRD 700 (D.C. 1979). That statute does not speak of attorney fees as “expenses” as does OCGA § 9-11-37 (b) (2), but rather of “reasonable attorney fees and other litigation costs reasonably incurred.” A difference is discernible. See Holly, supra.

Third, if a pro se attorney can recover “attorney fees” under OCGA § 9-11-37 (b), the pro se litigant who is not an attorney will be discriminated against because his services to himself will not be measurable as “attorney fees.” How could fair market value of self-representation by a non-lawyer be calculated? The subjective and speculative nature of the assessment when such is attempted is illustrated in Jones, supra. We will not even take an attorney’s bill as conclusive of reasonable attorney fees, in the context of an assessment of the same in a workers’ compensation award. OCGA § 34-9-108 (b); State of Ga. v. Mitchell, 177 Ga. App. 333, 335 (2b) (339 SE2d 384) (1985).

Georgia’s Bill of Rights provides that “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const. 1983, Art. I, Sec. I, Par. XII. The Constitution recognizes an either/or distinction and so should we.

There are, of course, other sanctions affordable to the pro se litigant under OCGA § 9-11-37 when an opponent abuses discovery. And there is some indication of actual expenses of approximately $723.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    74512.
    ROBERTS et al. v. BIENERT et al.
    (360 SE2d 25)
   Deen, Presiding Judge.

Appellant Edward Roberts sought treatment from appellees Bienert and Hughes for back problems. He alleges that when his condition did not improve in response to conservative treatment, he consented to undergo surgery. He further alleges that the surgery caused his condition to worsen, with the result that he is no longer able to work.

1. On November 13, 1985, Roberts brought an action for medical malpractice and fraud against Dr. Bienert and Dr. Hughes. Mrs. Roberts joined in the complaint, seeking damages for loss of consortium. The marshal attempted to serve both defendants at the East Point (Fulton County) office where Roberts had consulted them. Dr. Hughes accepted service for himself and, after informing the marshal that Bienert had opened another office, accepted service for Dr. Bienert, also. The record shows that Hughes passed along the papers to Bienert but does not indicate on what date.

Both Hughes and Bienert answered on December 18, 1985. Bienert’s answer raised the defenses, inter alia, of no service, insufficient service, and improper venue; the answer also denied, paragraph by paragraph, the substantive allegations of the complaint. On August 11, 1986, both Bienert and Hughes moved for summary judgment on the substantive grounds alleged in the complaint. On August 18 appellants filed an amended complaint alleging that Bienert was a resident of Fayette County and could be served at his place of business (stated as Dr. Hughes’ office address in East Point) or by second original at his Fayette County residence. On September 10,1986, personal service by second original was made upon Bienert at his Fayette County address. On October 7 Bienert filed an amended answer in which he admitted the allegation of jurisdiction in the amended complaint and raised the additional defense of laches. On October 16, the date of the hearing on the motion for summary judgment, Bienert sought to withdraw two of the three issues addressed in his motion for summary judgment; the court denied this motion.

On December 8, 1986, the trial court entered an order granting summary judgment and dismissing Bienert from the action. The court held expressly that appellants’ reliance on the marshal’s return of service was unjustified and that, even if, arguendo, it were justified, the presumption of service had been rebutted; the court further held that plaintiffs/appellants had not made the requisite showing of due diligence in attempting to effect timely service. On appeal Mr. and Mrs. Roberts enumerate the following errors: the court erred in dismissing the claim for damages on the malpractice count, the court erred in dismissing the claim for fraud, and the court erred in dismissing Mrs. Roberts’ claim for loss of consortium. We granted an interlocutory appeal for the purpose of determining whether the case sub judice is controlled by Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986), wherein it was held that service upon an apparent agent, coupled with due diligence and actual knowledge of the suit on the part of the defendant, is sufficient to constitute substantial compliance with OCGA § 9-11-4 (d) (7); and to address appellants’ remaining enumerations of error. Held:

In Brim v. Pruitt, supra, this court held that service upon a visitor in the defendant’s home, who promptly turned over the papers to the defendant upon arrival a short while later, constituted such substantial compliance with OCGA § 9-11-4 (d) (7) as to satisfy the notice requirements embraced in that Code section. We emphasized in Brim the extreme diligence shown by the plaintiff in attempting to trace the defendant’s whereabouts through a series of changes of residence, both in and out of the state.

In the instant case appellants have demonstrated no such diligence and therefore are not entitled per se to the benefit of the liberal construction of the statute advocated and implemented in Brim. We recognize several significant factual distinctions between that case and the one at bar: most notably, that in the instant case service was attempted at defendant Bienert’s last known place of business, where he had had his practice for a number of years; that service was made upon Bienert’s former long-time partner and apparent agent; and that, according to the record, the latter apparently made no attempt to inform the marshal either as to his own status as agent vel non or as to Bienert’s new place of business. Because of these factual situations, it may well be that appellants were initially justified in relying on the marshal’s return of service. Appellants’ receipt of defendant Bienert’s responsive pleading, however, should have put them on notice and inspired them, through counsel, to exercise the greatest possible diligence to ensure proper and timely service. There is ample authority to support the principle that service of process on an apparent agent is insufficient to meet the requirements of the governing Code section, supra; see, e.g., News-Press Pub. Co. v. Kalle, 173 Ga. App. 411 (326 SE2d 582) (1985); Thaxton v. Ga. Insurer’s Insolvency Pool, 158 Ga. App. 407 (280 SE2d 421) (1981). It is well settled, moreover, that it is the plaintiff who has the burden of proving diligence in attempting to make proper service as quickly as possible. Jarmon v. Murphy, 164 Ga. App. 763 (298 SE2d 510) (1982).

In view of the facts that Bienert’s new office was located only a relatively short distance from his former place of business (in College Park, a Fulton County city adjacent to East Point) and that his new business address (as well as his residence address) could have been easily obtained by a number of means — including the simple expedí-ent of consulting the Atlanta metropolitan area telephone directory or calling Directory Assistance — we must agree with appellee Bienert that nearly 300 days after the filing of the complaint is an unreasonably long time to effect proper service. We hold, therefore, that the case at bar does not come within the ambit of Brim v. Pruitt, supra, or of Sanders v. Johnson, 181 Ga. App. 39 (351 SE2d 216) (1986), which followed Brim. See Trammel v. Nat. Bank, 159 Ga. App. 850 (285 SE2d 590) (1981); Williams v. Mells, 138 Ga. App. 60 (225 SE2d 501) (1976); see also the dissenting opinion in Sanders v. Johnson, supra. We note obiter that the fact that Brim and Sanders, supra, involved service at the defendant’s dwelling rather than at his place of business, as in the instant case, is not a factor in our finding Brim and Sanders inapposite here.

2. The record shows that on August 11, 1986, appellee Bienert filed a motion for summary judgment addressed not to the process issue but to the substantive issues set forth in appellants’ complaint. When a defendant files a motion for summary judgment on the merits of the case without having raised an issue as to sufficiency of service of process, he has made a general appearance and thereby waived any alleged defect in the service. Bigley v. Lawrence, 149 Ga. App. 249, 250 (253 SE2d 870) (1979). In his answer appellee had raised not only the defenses pertaining to lack of proper service but also those addressed to the substantive allegations of the complaint.

The general rule is that if there is a defect in service of process, “any act by which one consents to the jurisdiction of the court constitutes a waiver. [Cits.]” Georgia Power Co. v. O’Bryant, 169 Ga. App. 491, 492 (313 SE2d 709) (1984). Thus the Supreme Court has held that “[b]y pleading to the merits of the case and not raising any defense of lack of jurisdiction of the person (defective process) or improper venue, the appellee waived any objection he may have had under the CPA.” (Emphasis supplied.) Kiplinger v. Oliver, 244 Ga. 527, 528 (260 SE2d 904) (1979). This decision is but one of a long line of cases reiterating this concept. In Stallings v. Stallings, 127 Ga. 464 (6) (56 SE 469) (1906), it was held that “[t]he rule that appearance and pleading waives irregularities in the process or its absence, and the service thereof, and the other rule which declares that if a defendant appear and plead to the merits, without pleading to the jurisdiction and without excepting thereto, he admits the jurisdiction of the court, have no application so as to effect a waiver where the defendant excepted to the service, moved to dismiss the case for want of service, and pleaded to the jurisdiction at the time of filing his defense.” Stallings only followed an older line of precedent. “Appearance and pleading in writing to the merits will waive service, but not if want of service be likewise pleaded at the same time. Matters in abatement and in bar may be mixed in the same answer, and one defense will not defeat another.” Western &c. R. Co. v. Pitts, 79 Ga. 532 (3) (4 SE 921) (1887). “Pleading to the merits does not admit the jurisdiction, if at the same time exception be taken thereto.” Cox v. Potts, 67 Ga. 521 (2) (1881). “The filing of a plea to the merits where a plea to the jurisdiction had previously been filed does not waive the jurisdiction even though the plea to the merits is not expressly made subject to the plea to the jurisdiction.” Milam v. Terrell, 214 Ga. 199 (1) (104 SE2d 219) (1958); accord Weems v. Weems, 225 Ga. 154, 155-156 (166 SE2d 352) (1969); Barker v. Wilkinson, 222 Ga. 329 (1) (149 SE2d 698) (1966).

The Supreme Court continues to follow this line of cases. Thus, in Shaheen v. Dunaway Drug Stores, 246 Ga. 790 (273 SE2d 158) (1980), where the defendant, without filing an answer, appeared and contested a temporary restraining order, but later filed a timely answer in which improper venue was raised and overruled on the ground of waiver by general appearance, the court held that “[s]ince defendant Shaheen raised the defense of improper venue in his answer . . . we hold that under the CPA there has been no waiver of this defense.” Id. at 793.

This court follows these earlier precedents of the Supreme Court. In Gaddis v. Dyer Lumber Co., 168 Ga. App. 334 (308 SE2d 852) (1983), a defendant appeared specially and filed his answer in which he asserted insufficiency of service. Plaintiff moved for summary judgment and the defendant appeared at the hearing on the motion. Plaintiff contends that by defendant’s appearance before the court, he waived “his right to claim the trial court’s lack of personal jurisdiction over him as a defense.” Id. at 335. This court held that “jurisdiction of the person is waived by the making of a general appearance without specially reserving the matter in the answer or other defensive pleading. [Cits.] In the instant case, [the defendant] satisfied the above Code section [OCGA § 9-11-12 (h)] by raising this issue in his answer. Therefore, his appearance before the trial court subsequent to the filing of his pleading in which he contested the sufficiency of process did not amount to a waiver of that defense.” (Emphasis supplied.) Id. at 335.

In the case at bar, the trial court recognized and addressed the issue of waiver by the defendant in filing a motion for summary judgment. The court cited the fact that Bienert, in his brief on the motion for summary judgment, re-alleged the insufficiency of service of process. The court was aware of the impropriety of consideration of issues such as insufficiency of service on a motion for summary judgment, citing Pickett v. Paine, 230 Ga. 786 (199 SE2d 223), and knew the proper procedure would have been to request a hearing under OCGA § 9-11-12 (d). Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 99 (220 SE2d 86) (1975). However, the court was also aware that a court is not bound by the nomenclature of a pleading. “The well established rule in Georgia is that, under our system of notice pleading, the substance, rather than the nomenclature, of legal pleadings determines their nature.” Cotton v. Fed. Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980). Thus, the court found that Bienert’s “motion for summary judgment is actually a motion to dismiss or in the alternative a motion for summary judgment” and that “the hearing on Bienert’s motion for summary judgment was in essence a preliminary hearing” in which it found “Bienert’s defense of insufficiency of service of process has not been waived and therefore this Court cannot exercise in personam jurisdiction over this defendant.”

“ ‘While a party may by his conduct. . . waive a legal right, still where as here the only evidence of an intention to waive is what a party does or forbears to do, “his acts or omissions to act, relied on should be so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of his conduct is possible.” ’ ” Georgia Power Co. v. O’Bryant, supra at 492. It is clear that defendant Bienert preserved his issues of lack of service and insufficiency of service by pleading them in accordance with OCGA § 9-11-12, and by reasserting them in his motion for summary judgment documented his intent that he did not waive them, and this was recognized and adhered to by the trial court. This court has recently considered a similar issue in which a defendant made a special appearance to contest sufficiency of service in his answer, but “on the eve of trial . . . made an oral motion to dismiss,” and in this whole court case, found that the defendant “preserved its service defense.” CMT Investment Co. v. Automated Graphics Unlimited, 175 Ga. App. 353, 354 (333 SE2d 196) (1985).

In Glass v. Byrom, 146 Ga. App. 1, 2 (245 SE2d 345) (1978), this court held that “ [defendant's appearance in the action by the filing of an answer and raising the defense of insufficiency of service of process and answering interrogatories did not constitute a waiver of the defective service.” (Emphasis supplied.) “A party may set forth two or more statements of a claim or defense alternatively or hypothetically. ... A party may also state as many separate claims or defenses as he has, regardless of consistency. . . .” (Emphasis supplied.) OCGA § 9-11-8 (e) (2); see also Davis & Shulman’s Georgia Practice & Procedure § 8-13. “Pleading to the merits does not admit the jurisdiction, if at the same time exception be taken thereto.” Cox, supra at (2).

The trial court did not err in dismissing appellants’ claims against Dr. Bienert.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

Decided July 6, 1987

Rehearing denied July 20, 1987.

Robert A. Falanga, Jesse E. Barrow III, for appellants.

Brynda Sue Rodriguez, Michael G. Frick, for appellees.


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

text:
    74153.
    DIXON v. DIXON.
    (360 SE2d 8)
   McMurray, Presiding Judge.

This is a child custody case. The father and mother were divorced on April 17, 1981, and custody of the child, an infant at the time of the divorce, was awarded to the mother by agreement. A few years later, the father sought a change of custody. A hearing was held in the Juvenile Court of Bibb County on May 6, 7 and 8, 1985, and at the conclusion of the hearing, the juvenile court took the case under advisement. Ten months later, on March 12, 1986, the juvenile court entered an order changing custody to the father. In its order, the juvenile court found “that the home and the care of the child would be suitable except for the fact that the mother is cohabiting with a man to whom she is not married while the child is living with her.” Based on this finding, the juvenile court concluded that the welfare of the child had been affected by a material change of condition and that it was in the child’s best interest to change custody to the father. We granted the mother’s application for a discretionary appeal. Held:

“The mind is incapable of complete recall after a long lapse of time. On a close case there is less likelihood of error if they are decided by judges who try them while the case is fresh in his mind. Juries are required to do this. It would be a substantial contribution to our system if judges would follow, as closely as possible, that system. Long delays in disposing of litigation in civil and criminal cases are an ever increasing cause of concern, not only to the judiciary, but to the public. One of the oldest of judicial adages is ‘justice delayed is often justice denied.’ ” McLain v. McClain, 305 S2d 884, 885 (Fla. App. 1975). This adage is most apt in cases of this kind. When the welfare of a child is at stake, an order regarding custody of the child should be rendered with deliberate speed.

The mother contends we should vacate the judgment of the juvenile court simply because of the ten-month delay in the rendition of the judgment. We can find no authority to support this contention. We have undertaken a thorough review of the record, however, because the delay in the rendering of the judgment gave us cause for concern. See McLain v. McClain, 305 S2d 884, 885, supra.

We find the evidence of cohabitation to be scanty. Moreover, it was sharply conflicting. The mother denied that she cohabited with a man to whom she was not married. The man testified that he lived elsewhere. Some neighbors were of the opinion that the man did not live with the mother. Other neighbors, however, opined that he did. As one neighbor explained, “He was just always there. . . This evidence, with all reasonable deductions and inferences therefrom, was sufficient to authorize a change of custody in the present case. We cannot say the juvenile court abused its wide discretion by changing custody to the father. Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658); Bell v. Bell, 154 Ga. App. 290 (2) (267 SE2d 894).

Relying upon OCGA § 19-9-23 (c) (2), the mother asserts that the father impermissibly sought a change of custody in response to a complaint for modification in which the mother sought an increase in child support payments. This assertion is without merit. Simply put, a complaint for modification of support is not an “action or motion seeking to enforce a child custody order.” OCGA § 19-9-23 (c) (2).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Carley, Sognier, Pope and Benham, JJ., concur. Deen, P. J., also concurs specially. Beasley, J., dissents.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, it is appropriate to make additional comments.

The majority opinion properly notes the authoritative, apt, and ageless adage that “justice delayed is often justice denied.” While seeking to decide cases properly and accurately is the primary goal of our judicial system, it is no less important that it be done promptly and with deliberate speed.

The dissenting opinion also endorses the urging of rendering prompt decisions in child custody cases, and, in fact, suggests that these type cases ought to have priority over others “all along the judicial path.” The dissent goes so far as to charge that a slow judicial system may even be “complicitous in the further harm” to children in custody cases. However, can this court say that child custody cases are more important than (1) criminal cases (where one’s liberty is at stake), (2) workers’ compensation cases (where an injured claimant needs medical or financial assistance to survive), or (3) contempt cases (where one may have to spend time in the jail)? Selective preference of any category of cases would only result in delaying other cases which have been filed first and actually deserve priority.

The simple solution, of course, is to decide all cases whenever possible in the trial and appellate courts properly, promptly, and “with deliberate speed.” This could be accomplished by reduction of the time periods between (a) the date the case is filed, (b) the date the matter is tried or argued, and (c) the date of decision. OCGA § 9-11-1 sets forth the standard of a “just, speedy and inexpensive determination.” We cannot improve upon the words of one of Georgia’s most distinguished appellate justices, Logan Bleckley: “In the administration of justice there ought to be correctness, clarity and cheapness . . . Progress is the realization, in short time, of what formerly occupied long time.” Ga. Bar Assn. Annual Report, p. 25 (August 13, 1884).

I would affirm the judgment of the trial court, as this case is controlled by our recent whole court case of Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658) (1985). In that case, seven out of nine judges acknowledged that, as in the instant case, “implications and inferences of possible potential criminal fornication, which is a misdemeanor” (or a case involving adultery or incest) cannot be ignored where the best interests of a child are at issue. See also Milner v. Milner, 181 Ga. App. 760 (353 SE2d 628) (1987). Groans and “moans and love-making noises” were heard by a neighbor in the instant case. This might be somewhat scanty, and perhaps not the strongest case, but it is strong enough!

Beasley, Judge,

dissenting.

I respectfully dissent.

I wholly support the majority’s urging that decisions in child custody cases be rendered promptly. Perhaps they ought even to be given a priority over others, all along the judicial path. There is, e.g., a statutory time mandate for decisions on motions. OCGA § 15-6-21. Even where no change in custody is ultimately ordered, the child suffers because of the effect which limbo has on the relationship among the family members and towards the child. Where a change of custody is finally ordered, the delay usually means the child has been subjected to more of the selfsame harm causing the change, during the interim created solely by the slow wheels. Thus the judicial process itself contributes to the ongoing harm to the child. This all can be exacerbated by temporarily switching custody back and forth via supersedeas grants and denials. OCGA §§ 15-11-64; 5-6-35 (h).

Here, unless the father temporarily took custody between the trial court’s denial of the mother’s request for supersedeas and our grant of supersedeas (a period of twenty-one days), and assuming the father did not take custody immediately upon receipt of the trial court’s appealed-from order of March 12, 1986, the child has been in the custody deemed not in his best interest, for nearly three years from the filing of the petition setting forth the grounds. He is now age eight and was then about five.

The final result is that the change of custody of the child will be effected some three years after the mother’s alleged cohabitation with a man not her husband, which cohabitation is the ground for the ordered change. If that environment has continued, the judicial system has been complicitous in the further harm to the child.

I also agree that there is no authority to reverse the judgment of the trial court on the ground of the delay per se. The Uniform Juvenile Court Rules make no such time requirements. 254 Ga. 757, as amended, 255 Ga. 739. The closest legal basis may be OCGA § 19-9-21 (a) (4), (7), and (b), but it does not constitute authority for the proposition. Nor had the mother filed a motion to which OCGA § 15-6-21 would have applied, or sought the awkward and cumbersome mandamus. Graham v. Cavender, 252 Ga. 123 (311 SE2d 832) (1984). Although the state constitution declares that one of its purposes is to “promote the interest and happiness ... of the family” and requires “uniform court rules . . . which shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions,” it imposes time constraints only on the appellate courts. Ga. Const. 1983, Preamble; Art. VI, Sec. IX, Pars. I and II.

Where, then, do I dissent? In the conclusion that the evidence was sufficient to authorize a change of custody.

The law is that “[o]nce a permanent award of child custody has been made, when the non-custodial parent seeks to change custody, the trial court must determine whether there has been a material change of conditions affecting the welfare of the child. [Cit.]” Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658) (1985). The opinion in Robinson v. Ashmore, 232 Ga. 498, 501-502 (II) (207 SE2d 484) (1974) speaks of the necessity of showing a “material effect” on the interest and welfare of the child and quotes from Handley v. Handley, 204 Ga. 57, 59 (48 SE2d 827) (1948), which describes it more fully as change “which might substantially affect the health, happiness, or welfare of the children.” It is emphasized repeatedly in the cases that “any consideration of custody must always be made in the light of the best interests of the child involved . . . primary consideration [must be given] to the welfare of the child.” See OCGA § 19-9-3.

In the instant case the court found that the mother’s home was suitable “except for the fact that the mother is cohabiting with a man to whom she is not married while the child is living with her,” and on that basis found a material change of conditions adversely affecting the welfare of the child. True, it found changes in the father’s conditions to be favorable. But that itself would not be a valid ground on which to change custody.

I assume for the purpose of this dissent that the alleged cohabitation negatively affected the child’s welfare, as did the trial court, although that poses another legal problem. The court must make a finding that the change in circumstances “had in fact had a material adverse effect on the child,” not only that there has been a change of conditions. Evans v. Stowe, 181 Ga. App. 489, 491 (4) (352 SE2d 811) (1987); see Howard v. Fincher, 161 Ga. App. 411, 413 (288 SE2d 338) (1982).

Decided June 16, 1987

Rehearing denied July 21, 1987

Arline S. Kerman, W. Edward Meeks, for appellant.

Carl A. Veline, Jr., for appellee.

The evidence that the mother “is cohabiting” (when? at the time of the hearing in May 1985 or at the time of the decision in March 1986 or at the time the petition was filed in August 1984, or at any of these times and continuing as in Bell v. Bell, 154 Ga. App. 290 (267 SE2d 894) (1980)) is less than scanty. The transcript, which is now in the record although it was not when the trial court made its decision, shows that the evidence is purely speculative.

The only evidence that appellant and one Ethridge dwelled or lived together as husband and wife was not legally cognizable. The father said the child said Ethridge had lived with them at a previous apartment but conceded that the child’s statement could not be taken for the truth of it. The mother and Ethridge and Ethridge’s daughter steadfastly denied it. The father’s counsel conceded that his private investigator’s testimony should be discounted. The resident manager and the neighbor offered no evidence of cohabitation, just their con-clusory lay opinions, although the neighbor heard what she believed to be lovemaking once. Such evidence is an insufficient foundation for a finding of fact. City of Atlanta v. Hightower, 177 Ga. App. 140, 143 (338 SE2d 683) (1985); Bankers Health &c. Ins. Co. v. Fryhofer, 114 Ga. App. 107, 110 (1) (150 SE2d 365) (1966).

“ ‘Though the trial judge is given a discretion, he is restricted to the evidence and unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. (Cit.)’ [Cit.]” Evans, supra at 491.

I would for this reason reverse.


author: Beasley, Judge.

text:
    74276.
    DEUTZ-ALLIS CREDIT CORPORATION v. PHILLIPS et al.
    (360 SE2d 29)
   Beasley, Judge.

Plaintiff Deutz-Allis appeals from the granting of a partial summary judgment to defendant Gulf Insurance Company; the granting of summary judgment to defendant Phillips; the granting of partial summary judgment to defendant Terry Clenney; and the denial of its motion for summary judgment. The action was a claim against the bond posted by Sheriff Phillips pursuant to OCGA § 15-16-5, on which Gulf was the surety, and against Clenney as surety ori a bond under OCGA § 44-14-268 (a) (2). The action grew out of another Miller County Superior Court action, #1299, which is included in the record in this case.

Action 1299 began on January 20, 1982, when Allis-Chalmers, the predecessor company of plaintiff below, filed its petition for immediate writ of possession against E. V. Clenney, the father of defendant Terry Clenney. The petition, presented pursuant to OCGA § 44-14-261, sought only immediate possession of a tractor purchased by E. V. Clenney from Tri-County Tractor and financed by Allis-Chal-mers.

Although no foreclosure petition under OCGA §§ 44-14-230 and 44-14-231 was pending and plaintiff did not pray for foreclosure, the court issued the writ pursuant to OCGA § 44-14-264 on January 20. The same day, counsel for plaintiff, accompanied by a deputy sheriff, went to the Clenney farm to execute the writ pursuant to OCGA §§ 44-14-266 and 44-14-236. The petition was not served on defendant E. V. Clenney until nine months later, on September 23. See OCGA § 44-14-265.

Upon arrival at the Clenney farm E. V. Clenney became irate and had to be calmed by the deputy. His son Terry called an attorney who was then representing the Clenneys. Counsel for the creditor and this attorney spoke by phone and agreed that, rather than surrender the tractor, a bond under OCGA § 44-14-268 (a) (2) would be executed by E. V. as principal and by his son Terry as surety.

Sheriff Phillips was then called by his deputy and was asked if it was agreeable for E. V. to give a bond and, since Terry volunteered to sign, if that would be all right. The deputy also advised the sheriff that the creditor’s attorney did not have an appropriate bond form, but the deputy had a criminal appearance bond form which the creditor’s attorney then prepared. The sheriff said he would approve E. V. on the bond because the tractor was worth more than the amount of indebtedness and that he had no objection to Terry’s signing.

Being a criminal bond form, it was by its language conditioned on E. V. Clenney’s appearance at court on a day certain for arraignment, “to answer to the offense of ‘Bond for tractor’ with which he . . . stands charged, . . . until discharged by law. . . .” The tractor was left with E. V.

On February 3, E. V. and Terry executed a second bond, which referred to action 1299 and stated “if said principal (E. V.) shall pay the plaintiff all damages which plaintiff may be awarded in this matter, then this bond to be void.” Sheriff Phillips had never seen this bond but on deposition testified that his deputy probably signed his name to it based on the earlier authorization.

On June 17 petitioner amended action 1299 to add a paragraph notifying of a demand for attorney fees as provided by the contract if the principal and interest were not paid in ten days. It also amended the prayer, which had merely been for immediate possession and costs, to include judgment in the amount of the debt, plus attorney fees if the debt and interest were not paid within ten days of service. This amendment was served by mail on the same attorney with whom the creditor’s counsel had spoken.

No response was filed and, pursuant to petitioner’s motion purportedly under OCGA §§ 44-14-267 and 44-14-269, a money judgment was entered April 27, 1983, and reduced to a sum certain by a second judgment order entered September 28, with no mention made of the writ of possession. A writ of fieri facias issued at petitioner’s request, pursuant to which the sheriff levied upon the tractor which was still in E. V. Clenney’s possession, and sold it at public sale on October 2, 1984. The small proceeds went to satisfy a prior judgment and petitioner obtained nothing.

It is in this context that the present litigation began, with plaintiff (successor to Allis-Chalmers) suing Terry Clenney, as surety on the second bond (which was a substitute for the “criminal bond” posted in lieu of surrendering immediate possession) for failure to pay the judgment, and the sheriff and his bonding company for the sheriff’s alleged failure to ascertain the fiscal responsibility of Terry Clen-ney in approving the bond.

1. The procedures for the obtaining of writs of immediate possession have been found constitutional but must be strictly adhered to. Sumner v. Adel Banking Co., 244 Ga. 73, 74 (1) (259 SE2d 32) (1979); see Coursin v. Harper, 236 Ga. 729, 732 (225 SE2d 428) (1976); Mitchell v. W. T. Grant Co., 416 U. S. 600 (94 SC 1895, 40 LE2d 406) (1974); see generally 11 Ga. State Bar Journal 230 (April 1975). Neither the parties nor the courts may expand upon or change these procedures. Riviera Equip. v. Omega Equip. Corp., 145 Ga. App. 640, 641 (2) (244 SE2d 139) (1978).

The court did not err in its rulings. Lurking among the undisputed facts are numerous legal obstacles to plaintiff’s recovery against any of the defendants. We need not address them here because insurmountable is the legal significance of the fact that plaintiff ultimately gained possession of the property when it chose to do so. Even if we were to consider its orphan petition for immediate possession as encompassing a parent petition for foreclosure, the immediate writ and the statutes relative to it did not authorize the posting of a bond for payment of a money judgment. And even if they did, and assuming but not deciding that OCGA § 44-14-268 applied to this immediate writ, the court determination provided for therein was not obtained.

The writ authorized immediate possession. The creditor relinquished that right and left the tractor in E. V. Clenney’s possession and, instead of pursuing foreclosure, abandoned that and procured a money judgment instead. These are two different mechanisms for a secured creditor’s obtaining relief. Dein v. Citizens Jewelry Co., 149 Ga. App. 340, 341 (1) (254 SE2d 403) (1979); see also Sumner v. Adel Banking Co., supra at (4), relating to two separate counts; OCGA § 9-11-18. The creditor executed on the money judgment by levying on the tractor as an asset of the debtor and having it sold. Therefore it had no cause to complain when the bond given in lieu of immediate possession was not paid.

The bond related to foreclosure, if to anything at all, which procedure allows a person holding a security interest on personal property to foreclose on the property and sell it to satisfy the debt. OCGA § 44-14-230. That procedure, if ever it was properly instituted, was abandoned and the creditor turned its efforts instead to pursuit of a money judgment on the underlying debt.

Thus the validity of the bond, which could only be a substitute for immediate possession “pending a final decision on the merits,” Ward v. Charles D. Hardwick Co., 156 Ga. App. 96, 98 (274 SE2d 20) (1980), became academic. Along with it, so did the sheriff’s obligations with respect to approval of that bond, even if he had any to begin with, and those of his bonding company with respect to performance of the sheriff’s duties.

Once the tractor was obtained and sold pursuant to the writ of fieri facias obtained by petitioner based on the judgment, the issue of writ of immediate possession was deprived of practical significance, even if it had not earlier become so by the nonpursuance of foreclosure. This result is similar to that which follows the interim writ of possession under OCGA § 44-14-234, issued upon debtor’s failure to pay certain sums into the court’s registry. See Dein v. Citizens Jewelry Co., supra; see also Ward v. Charles D. Hardwick Co., supra, comparing the immediate writ such as we have here with the interim writ in dispossessory proceedings.

Plaintiff in the case below having obtained all, if not more than, it was legally entitled to with respect to the tractor in the underlying action 1299, i.e., a judgment for the amount of debt claimed on the loan and the sale of the tractor as an asset of the debtor, it has not been damaged by any error in the approval of the surety on the bond and, as a matter of law, was entitled to no recovery against the sheriff and his bonding company on this ground alone. For the same reason, the partial summary judgment in favor of surety Terry Clenney was not error.

Decided July 7, 1987

Rehearing denied July 21, 1987

B. Thomas Conger, for appellant.

Danny S. Shepard, Rikard L. Bridges, Billy M. Grantham, Peter Zack Geer, for appellees.

In effect, plaintiff, by its own actions long before the present suit was instituted, mooted the question which it now seeks to have reviewed. See Rogers v. Composite State Bd. of Medical Examiners, 245 Ga. 364, 365 (2) (265 SE2d 1) (1980); Edwards v. Edwards, 226 Ga. 875, 878 (2) (178 SE2d 168) (1970).

On appeal, in order to warrant reversal, an appellant must show harm as well as error. Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821) (1986). Here, assuming error, the plaintiff has failed to show any harm except that caused by its own inaction at the time of the judicial sale which it precipitated. See generally Finestone & Cardón, Ga. Post Judgment Collection, § 5-2.

Therefore, the order of the court below is affirmed in all respects.

2. Based on the decision in Division 1, it is . not necessary to consider the remaining enumerations of error.

Judgment affirmed.

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

       The motion filed by Phillips is styled a motion to dismiss under OCGA § 9-11-12 (b) (6) but the order was obviously based on the documentary evidence contained in the record as well as argument of counsel and will be treated as the grant of summary judgment. Blasingame v. Blasingame, 249 Ga. 791, 792 (294 SE2d 519) (1982).


text:
    73637.
    OSBORNE BONDING COMPANY v. HARRIS.
    (360 SE2d 32)
   Beasley, Judge.

This is an appeal by the bondsman from an appearance bond forfeiture. The following is undisputed: Whorton was indicted for conspiracy to traffic in cocaine. He was arrested and held in the Floyd County Jail without bond. Upon Whorton’s petition the court set bond at $500,000. Prior to securing a bond, Whorton and his counsel of record were sent notice that he would be arraigned approximately 2 Vi weeks later. The day after the notice was sent, Osborne Bonding Company prepared and executed a bond for principal Whorton in the amount of $500,050. Three days later, the Osborne bond was presented to the Sheriff of Floyd County. It had previously been approved by the Sheriff of Clayton County. At the time of presentation of the Osborne bond, the Sheriff of Floyd County was given a second bond made by five independent sureties for principal Whorton in the amount of $500,000, and the sheriff approved the bonds. Whorton was released.

He appeared for arraignment and pled not guilty. The court published its trial calendar and notice of the trial date was mailed to Whorton, his counsel, and the five sureties on the second bond. Notice was not mailed to Osborne.

Whorton appeared with counsel for the start of the trial, but four days later failed to appear to continue the trial. He was called to come into court as principal on the bonds and the sureties were called upon to produce the principal in accordance with the terms of the posted bonds. Whorton did not appear and the trial proceeded resulting in his conviction. The court delayed sentencing. After the state instituted proceedings to forfeit the bonds, the court ordered the principal and sureties to show cause why an order and judgment should not be made final against the bondsmen.

Osborne filed a response to the state’s petition for forfeiture of recognizance alleging that the bond on which it was surety lacked specificity and was therefore void, that it was not binding as to the principal and therefore not binding on it as surety, and that the forfeiture proceedings employed by the state were improper and failed to comply with statutory requirements.

After a hearing and the opportunity to submit legal memoranda the court entered a detailed order rendering final judgment by default against principal Whorton for $500,050, plus costs and judgment against Osborne and the sureties on the second bond for the same sum. The court specifically found that the sureties had shown no sufficient reason why the appearance bonds should not be forfeited.

The bases of Osborne’s appeal are three.

1. Osborne argues that the bond contract did not specify where and when it was to produce the principal and thus is void and unenforceable due to lack of specificity.

The face of the bond stated that Whorton “shall personally be and appear at the next Superior court of Floyd County, to be held on the To Be Notified next, from day to day, and from Term to Term, . . .” (Typed-in language italicized.)

The place of appearance as the “Superior Court of Floyd County” is sufficiently specific. See Gunsallus v. Busbee, 149 Ga. App. 109 (253 SE2d 470) (1979). Furthermore, the now objected-to language as to the time of appearance, i.e., “to be notified” was prepared and approved by Osborne itself; therefore, it cannot complain of it. Moreover, “[a] bond contract may be valid even though it is signed in blank, where the terms are agreed upon but left to be filled in at a future time. [Cits.]” Jam Bonding Co. v. State of Ga., 179 Ga. App. 82, 83 (345 SE2d 87) (1986).

Decided July 7, 1987

Rehearing denied July 22, 1987

T. Michael Martin, for appellant.

Stephen F. Lanier, District Attorney, H. Allen Moye, Special Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.

The ground of lack of specificity to void the bond falls.

2. Osborne asserts that the state’s failure to notify it as to the time and place for Whorton’s arraignment and trial nullifies and voids the bond because of the notice of arraignment requirement of OCGA § 17-7-91 (a), the notice of trial as provided in Uniform Superior Court Rule 32.1, and the notice provisions contained in the bond itself.

While it is true that the notice of arraignment as required by OCGA § 17-7-91 (a) was not given to Osborne, this does not void the bond or release Osborne’s obligations under it, because at the time of giving notice of arraignment, there was no bondsman to be notified. In addition, subsection (c) of the statute provides that, “[t]he appearance and entering a plea by the accused shall be a waiver of the notice required in this Code section.” The statute does not make provision for notice to the bondsman of the trial date.

The noncompliance with the Uniform Superior Court Rule 32.1 is to be assessed under the circumstances of each case; violation per se does not require the harshest remedy. Sanders v. State, 181 Ga. App. 117, 121 (2) (351 SE2d 666) (1986). Here the principal initially appeared for trial, continued to appear until well into the trial, and the bondsman was promptly notified of the failure to reappear. Considering these facts, the failure to notify Osborne of the date of the trial’s start, as required under USCR 32.1 does not mandate invalidation of the bond.

Osborne does not point to any specific language in the bond, nor do we find any such language, specifying notice requirements to the bondsman.

3. Osborne contends that the bond is invalid because it was never approved and accepted by the Sheriff of Floyd County as required by OCGA § 17-6-15 (b).

While the face of the bond does bear the signature of the Sheriff of Clayton County rather than that of the Sheriff of Floyd County, the Sheriff of Floyd County testified at the forfeiture hearing that he relied upon the Osborne bond to release Whorton from custody and that the second bond was just “extra security.” The sheriffs testimony makes it clear that he did accept and approve the Osborne bond.

The trial court’s judgment of forfeiture stands.

Judgment affirmed.

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


text:
    73667.
    NEW YORK INSURANCE COMPANY et al. v. WILLETT.
    (360 SE2d 37)
   Beasley, Judge.

This is an appeal by defendant joint venturers, collectively “Village Square-Nautilus,” from the denial of their motion for new trial following an unfavorable jury verdict and judgment in a suit by Wil-lett to recover money paid to defendants pursuant to a sales contract for the purchase of certain real property.

The evidence is construed most strongly in favor of the jury verdict. Stern’s Gallery of Gifts v. Corp. Property Investors, 176 Ga. App. 586, 592 (3) (337 SE2d 29) (1985). In the fall of 1979, Willett, owner of a number of car dealerships in Atlanta, acquired by assignment from one Willey, the rights to a contract to purchase real estate from Village Square-Nautilus on which Willett intended to construct and operate an automobile dealership, service department, and body shop. The contract was contingent on the purchaser’s being able to use the property for its intended use, a car dealership, as of the date of closing; the property containing not less than five and one-half acres usable by the purchaser after grading; and the purchaser’s being able to obtain satisfactory financing. If satisfactory financing was available and the seller so notified, the purchaser was to deposit $40,000 earnest money out of a $320,000 purchase price with the seller and the seller was to proceed immediately to grade the property and perform the site preparation. If satisfactory financing was not available and the seller so notified, the contract would be null and void and the earnest money refunded to the purchaser.

Willett encountered difficulty obtaining permanent financing and in 1980, prior to any grading of the property, he discussed the problem with Hicks, one of the partners in the joint venture. Hicks told Willett that if he wanted the property and wanted the grading to start, he would have to show good faith by giving him the $40,000 in earnest money even though under the contract terms it was not yet due. Willett agreed to pay the sum and in exchange obtained from the partnership, through Hicks, a commitment for some interim short-term financing. Willett understood that such financing was not a substitute for permanent financing but merely was to serve until other monies could be obtained. A letter from Hicks to Willett purported to amend the sales contract to reflect the interim financing agreement and to set a closing date of May 15, 1980. Willett’s understanding was that other provisions of the contract remained intact including the contingencies of obtaining permanent financing, that the parcel would contain the specified amount of usable acreage, and that he had the option to withdraw the $40,000 at any time. He continued to attempt to obtain permanent financing.

Around May 10, 1980, after completion of the grading of the property, Willett contracted with a civil engineer to go out and survey it to make certain that there was 5.5 acres of usable land and that the grading was satisfactory. Willett did not attend the May 15 scheduled closing because the permanent financing problem continued and the survey of the land was not yet completed. A new date was set for the closing.

The civil engineer reported to Willett that the land had less usable acreage than that specified in the contract, some of the grading did not comply with the specifications, some trees had not been planted, and some drainage work yet needed to be done. Still attempting to complete the land transaction, Willett met with Hicks to discuss the problems that the survey had disclosed. Shortly thereafter, Willett received a summons of garnishment against another member of the partnership. Though concerned, Willett still did not attempt to end the transaction but had his counsel write to counsel for the seller addressing the problems with the deal.

On the same date of that communication, seller’s counsel wrote Willett that because he (Willett) had not been in a position to close the transaction on May 15, and no meeting had been effected to extend the contract, the seller was declaring the contract null and void; neither party was to have a claim upon the other, and the $40,000 in earnest money would be retained by the seller. Willett’s counsel responded that since seller had declared the contract null and void, etc., Willett withdrew any offer to continue the contractual arrangements and demanded the immediate refund of the earnest money. Seller refused to return the earnest money.

Willett filed the present suit in June 1980, for return of the earnest money and for the expenses of litigation under OCGA § 13-6-11, including attorney fees in the amount of $10,000. Village Square-Nautilus counterclaimed for dismissal of the complaint, damages of no less than $43,347.27 (the amount defendants claimed it cost to grade the property less the earnest money retained, $83,347.27 - $40,000), and interest and expenses of litigation pursuant to OCGA § 13-6-11. The case was tried, five and one-half years after the filing of the complaint. The jury returned a verdict for plaintiff in the sum of $40,000 plus the legal rate of interest and all attorney fees, an amount of $13,016.94. The trial court entered judgment accordingly but reduced the attorney fees to $12,016.94 after consideration of defendants’ motion for judgment notwithstanding the verdict.

1. Village Square-Nautilus complains that the trial court in effect directed a verdict against the counterclaim without allowing presentation of evidence to support it. The contention is that the trial court erroneously found as a matter of law that the joint venturers’ remedy was limited to Paragraph 10 of the sales contract: “In the event the Purchaser fails to close this purchase according to the terms hereof, the extent of their loss or damage shall be a forfeiture of the Earnest Money and nothing else . . .” even though Willett insisted the contract had been rescinded. Also contended is that thereafter counsel attempted on several occasions to introduce evidence of additional damages and attorney fees incurred in prosecuting the counterclaim but that the court sustained all of plaintiffs objections to the introduction of any such evidence.

The now objected-to rulings occurred during defendants’ examination of Hicks. The defense attempted to introduce into evidence checks and invoices documenting expenses that defendants allegedly incurred in the preparation of the property for sale. Plaintiff objected to the exhibits on the basis of the limitation in Paragraph 10, i.e., that defendants should not be allowed to tender evidence in support of amounts not recoverable by them pursuant to the default provision in the contract. The court indicated it would reserve its ruling, and the direct examination of Hicks continued. Defendants’ counsel asked Hicks, “Did you ever authorize or tell Mr. Willett that you wanted to rescind the contract and return the earnest money?” Hicks responded, “No.” Counsel continued to attempt to elicit testimony from Hicks regarding the expenses incurred by the joint venture. Plaintiff renewed his objection.

Following a colloquy among the court and counsel, outside the presence of the jury, the court ruled that it would let defendants explore the amount of damages suffered but would limit that under Paragraph 10 to recovery of the amount of the $40,000 earnest money plus any attorney fees if the jury should find bad faith on the part of plaintiff in regard to the counterclaim. Defendants did not object. The jury was brought back in and the questioning of Hicks resumed.

Hicks was asked about the total loss suffered by Village Square-Nautilus as a result of their attempt to go forward with the contract. Plaintiff objected to testimony in excess of the $40,000 limitation on recovery. The court ruled that the witness could be asked if the losses in performing the contract exceeded or equalled $40,000. Hicks’ testimony continued until plaintiff objected to a question about incurred attorney fees which was sustained by the court. Defendants made no objection to the ruling and announced that there were no further questions of Hicks on direct examination.

To begin with, defendants acquiesced at trial to the now objected-to rulings. They cannot now complain. Boatner v. Kandul, 180 Ga. App. 234 (3) (348 SE2d 753) (1986). Moreover, defendants were allowed to present to the jury substantial testimony regarding the damages sought in the counterclaim. Furthermore, defendants contended all during the trial that the contract had not been rescinded. Hicks even testified to that effect. Rather they contended that the contract was in force and that Willett had breached it. Under the terms of the contract their recovery was limited to the amount of the earnest money. Finally, defendants never submitted a written request to charge the jury on rescission of contract (plaintiff did but it was withdrawn) and the jury was not so charged. Even if defendants had lodged proper objection to the evidentiary rulings they could not have been harmed thereby because they did not request that the jury be instructed on any theory of recovery which would make relevant any expenses incurred in preparing the property for sale to Willett.

2. Appellants enumerate that the trial court erred in refusing to direct a verdict in their favor as to Willett’s claim for attorney fees under OCGA § 13-6-11. They assert that there was no evidence that they acted in bad faith in entering the contract or were stubbornly litigious in defending themselves.

In considering the propriety of an award of attorney fees on appeal, the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense. Ken-Mar Constr. v. Bowen, 245 Ga. 676 (266 SE2d 796) (1980). From the evidence in the record and as outlined above, the jury would have been authorized to find that there was no bona fide controversy or that defendants acted in bad faith in that there was no contractual or equitable basis for defendants to have retained Willett’s earnest money. Therefore the trial court was correct in refusing to direct a verdict for defendants as to plaintiff’s OCGA § 13-6-11 claim.

3. Village Square-Nautilus contends that the trial court erred in excluding from evidence certain correspondence between counsel for the parties which.it asserts “[established that some of Willett’s stated reasons for failing to close may have been fabricated by Wil-lett’s attorneys.”

Willett’s counsel objected to introduction into evidence of the letter on the basis that it was a communication between counsel with reference to the case and that it was not relevant to any issue in the case. Defendants’ counsel responded that a portion of the letter “referring to bad title defense” was a clear admission by an agent of Wil-lett against Willett’s interest and was admissible on that basis as an exception to the hearsay rule.

Pretermitting the question of whether or not such letter was admissible, we are unable to perceive that defendants were harmed by its exclusion, for the legitimacy of a “bad title defense” was irrelevant inasmuch as Willett did not present such a defense at trial. Without harm, there can be no reversible error. “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. [Cit.]” Best Concrete Prods. Co. v. Medusa Corp., 157 Ga. App. 97, 102 (5) (276 SE2d 147) (1981).

Decided July 8, 1987

Rehearing denied July 22, 1987.

E. Kendrick Smith, for appellants.

Michael J. Elsberry, for appellee.

4. Appellants contend that the trial court erred in denying their motion for new trial. We have addressed all but one of the points raised by defendants’ motion for new trial in Divisions 1 and 2; appellants have failed to address, either by presentation of authority or argument, the remaining point in their motion for new trial, i.e., that the verdict was contrary to the law and the evidence at trial. Therefore we deem this issue abandoned on appeal. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315) (1985).

5. Appellee Willett has asked this court to award him damages for delay pursuant to OCGA § 5-6-6. See St. Amour v. Roberts, 170 Ga. App. 717, 718 (318 SE2d 313) (1984). Appellant’s contention that the contract had been modified by the provision of a firm closing date and payment of the $40,000 earnest money raised legitimate questions concerning the continued effectiveness of paragraph 10 of the contract. The several issues raised on appeal are not so entirely meritless as to justify an award of a delay penalty. Therefore we deny appel-lee’s request.

Judgment affirmed.

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


author: Carley, Judge.

text:
    74105.
    OXFORD MOTORS COMPANY v. NIBLACK et al.
    (360 SE2d 23)
   Carley, Judge.

Appellee-plaintiffs entered into a contract to sell the assets of their automobile dealerships to appellant-defendant. The sale was never consummated and appellees brought suit against appellant for breach of contract. The case was tried before a jury. At the close of appellees’ evidence and again at the close of all the evidence, appellant moved for a directed verdict. The motions were denied by the trial court, and the case was submitted to the jury. The jury returned a verdict in favor of appellees. Appellant appeals from the judgment that was entered on the jury verdict.

Appellant’s sole enumeration is that the trial court erroneously denied its motions for directed verdict. According to appellant, a directed verdict should have been granted because appellees adduced no evidence that two contractual conditions precedent had ever been satisfied so as to render appellant’s purchase of appellees’ dealerships an absolute obligation. One condition precedent was: “Closing of the sale shall be subject to approval of the Buick Division of General Motors Corporation of said Buick franchise from [appellees] to [appellant] and this contract shall be null and void unless said franchise transfer is approved.” The other condition precedent was: “It is agreed by buyer and seller that the buy/sell agreement dated August 13, 1981 between [appellant] and [appellees] is intended to include the approval of Distributors, Inc. for the transfer of the Subaru franchise from [appellees] to [appellant].”

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. [Cits.]” Carver v. Jones, 166 Ga. App. 197, 199 (3) (303 SE2d 529) (1983). In this case, there was conflicting evidence with regard to the existence of a waiver of the conditions precedent in the parties’ contract. Although the waiver of contract provisions is not always a jury question (see C.P.D. Chem. Co. v. Nat. Car Rental Sys., 148 Ga. App. 756, 757 (1) (252 SE2d 665) (1979)), it is a question for the trior of fact when the evidence in that regard is conflicting. Integrated Micro Systems v. NEC Home Electronics, 174 Ga. App. 197, 202 (3) (329 SE2d 554) (1985). Since the jury was authorized to find from the conflicting evidence in this case that there had been a waiver of both conditions precedent, the trial court correctly denied appellant’s motions for a directed verdict. “ ‘[T]he parties may, by their acts or conduct, waive a provision that their contract may not take effect or constitute a binding agreement unless it is approved by a designated person or agency, or unless it is formally approved by all the parties, and a provision that a contract shall not be binding until it is approved in writing by a designated officer of one of the parties may be waived by the party where the provision was inserted into the agreement solely for such party’s protection.’ [Cit.]” C.P.D. Chem. Co. v. Nat. Car Rental Sys., supra at 757-758 (1). Moreover, in addition to waiver, there was sufficient evidence from which the jury could have found that any nonsatisfaction of the condition precedent with regard to the approval of the Subaru transfer was the result of appellant’s failure to exercise good faith. “ ‘[W]here a defendant prevents the performance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up in his own behalf any injury which may have resulted from the non-performance of such condition.’ [Cits.]” Allied Enterprises v. Brooks, 93 Ga. App. 832, 834 (3) (93 SE2d 392) (1956).

Decided July 2, 1987

Rehearing denied July 22, 1987.

G. Stuart Watson, Howard S. McKelvey, Jr., for appellant.

Donald D. Rentz, for appellees.

There being sufficient evidence in the case to authorize the jury to return a verdict for appellees, the trial court did not err in denying appellant’s motions for directed verdict.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    74165.
    NEESE v. THE STATE.
    (360 SE2d 1)
   Banke, Presiding Judge.

The appellant was indicted for statutory rape, child molestation, and three counts of aggravated sodomy. All of the charges involved his minor daughter, who was four years of age when the alleged offenses took place and five years of age at the time of trial. The appellant was tried jointly with his stepfather, who had evidently been separately indicted for the same offenses. The stepfather was found not guilty on all counts, while the appellant was found not guilty of the three aggravated sodomy charges but guilty of statutory rape and child molestation. He contends on appeal that the trial court erred in denying his motion for directed verdict, in refusing to excuse for cause a prospective juror who was an honorary deputy sheriff, and in denying his motion for mistrial after his prior criminal record was revealed to the jury by a state’s witness on cross-examination.

The child lived in the custody of her mother, from whom the appellant was divorced, but at the time the events in question took place was spending the weekend at her aunt’s house, where the appellant also resided. She testified at trial to the effect that the appellant and his stepfather had each placed his penis in her vagina and in her anus. However, she denied that either defendant had placed his penis in her mouth, as was charged in one of the aggravated sodomy counts of the indictments. While the child stated at trial that no one else had participated in these incidents, the mother revealed on cross-examination by defense counsel that the child had previously accused the appellant’s brother, his stepson, and his stepfather’s son, as well as her own maternal grandparents (i.e., the witness’ parents) of molesting her.

Several days after the child reported the abuse to her mother, the mother reported it to juvenile authorities, who arranged for the child to be examined by a pediatrician. The pediatrician testified at trial that during the course of the examination the child told her she had experienced repeated sexual contacts over the past few months with two adult males, whose names were withheld by the witness pursuant to instructions from the court. The child reported that each of these men had placed his penis and fingers in her vagina and anus and had rubbed his penis across her chest. The pediatrician testified that although the child was pleasant and cooperative while discussing these incidents, she became hysterical when a genital examination was attempted, screaming, “Don’t hurt me” and “I don’t want you to touch me,” and thereby making it necessary to administer a “hypnotic agent” to her as a sedative in order to complete the examination. Under the influence of the “hypnotic agent,” the child gave the doctor exactly the same account of the sexual molestation as she had given previously. The genital examination revealed that the child’s vaginal opening was “extremely distensible” and that her hymen was perforated, which conditions the pediatrician described as being consistent with the occurrence of the sexual abuse which the child had described to her.

There was evidence that when the arresting officers arrived at the appellant’s house to effect his arrest, he fled into the woods behind the house and had to be coaxed out by his family and friends. Moreover, it was shown that after being informed by the officers that they had a warrant for his arrest, but before being informed of the nature of the charges against him, the appellant exclaimed, “I ain’t raped no kid.”

After his arrest, the appellant agreed to undergo a polygraph examination, with the stipulation that the results would be admissible as evidence. The polygraph examiner testified at trial that his analysis of the test results indicated that the appellant’s negative responses to the questions, “Did you ever put your penis in [the victim’s] vagina” and “Did you ever put your penis in [the victim’s] mouth?” were deceptive. However, the examiner testified that the appellant’s negative response to the question, “Is it true you put your finger in [the victim’s] vagina?” was non-deceptive.

In his defense, the appellant offered tape recordings of two interviews which his attorney had arranged with the victim prior to trial. Also present at and participating in the first of these interviews, in addition to the attorney, were the appellant, his wife, and the child’s two grandmothers. During the course of these interviews, the child, after much prompting and coaxing, denied that the appellant had “hurt” her and stated that it had instead been her mother and her mother’s current husband who had done so. Through his own testimony, supported by that of such witnesses as his co-defendant, his wife, his aunt, and his mother, the appellant additionally attempted to establish that he had not had the opportunity to commit the offenses. Held:

1. The appellant contends that given the child’s age, the fact that she had accused several other persons of molesting her, the fact that her in-court testimony was contradicted by the taped interviews, and the evidence that he had not had the opportunity to commit the offenses, the evidence must be considered insufficient to support either of the two convictions. We disagree. The fact that the child had been sexually abused by someone was not in dispute, nor was the child’s competency to testify as a witness challenged. Based on the child’s testimony, the medical evidence in the case, the statement made by the appellant at the time of his arrest, and the polygraph evidence, we hold that a rational trier of fact could reasonably have concluded beyond a reasonable doubt that he was guilty of statutory rape.

We reject the appellant’s contention that the polygraph evidence had no probative value, noting that the case upon which he relies for this proposition, Famber v. State, 134 Ga. App. 112 (213 SE2d 525) (1975), was overruled by the Supreme Court ten years ago. See State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977), holding that “upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” Id. at 76-77. The appellant’s contention that the jury could not have reached its verdict without arbitrarily disregarding such evidence as the tape recorded interviews with the child and the testimony regarding his purported lack of opportunity to commit the crime is also without merit. The jurors were clearly entitled to take into account the possibility that the child had been pressured into making the statements on the tapes and to make their own assessment of the motives and credibility of the witnesses who testified on the lack of opportunity issue. See generally Bragg v. State, 175 Ga. App. 640, 642 (334 SE2d 184) (1985); Bell v. State, 159 Ga. App. 621 (284 SE2d 639) (1981); OCGA § 24-9-80.

2. While we find the evidence sufficient to support the statutory rape conviction, we reach the opposite conclusion with regard to the child molestation conviction. It was alleged, in Count 2 of the indictment, that the appellant had committed the offense of child molestation by fondling the child’s breasts and by placing his finger in her vagina with the intent to arouse and satisfy his sexual desires. We are cited to no evidence whatsoever to indicate that the appellant or anyone else engaged in the former conduct, and the only evidence regarding the latter conduct consisted of the testimony of the pediatrician recounting the child’s statements to her regarding what the two unnamed males had done. Because the child did not mention any such sexual activity at trial, and because the appellant passed the lie detector test on the question of whether he had placed his finger in the child’s vagina, we are unable to discern any evidentiary basis for the appellant’s conviction of this offense, and we consequently hold that his motion for a directed verdict of acquittal should have been granted as to this count.

3. The trial court did not err in refusing to excuse for cause a prospective juror who had been named an honorary deputy sheriff in another county. It was established without dispute at the hearing on the motion for new trial that the juror was not and never had been employed as a law-enforcement officer but was in the auto parts business. It is further apparent from his testimony that he had never received any training in law enforcement and that he had no actual authority as a law-enforcement officer. Under such circumstances, the prospective juror was clearly not subject to disqualification for cause. Accord Wilson v. State, 250 Ga. 630, 635 (4) (a) (300 SE2d 640) (1983). Compare Hutcheson v. State, 246 Ga. 13 (268 SE2d 643) (1980).

4. The trial court did not err in refusing to declare a mistrial on the basis of a suggestion made by one of the arresting officers on cross-examination that the appellant had a criminal record. Appellant’s counsel had asked the witness, “Is it the normal procedure to handcuff somebody and place them in a vehicle before you explain what he’s charged with?” to which the officer had responded, “Known felons, yes sir.” The appellant contends that this answer was not responsive because the question called for a simple yes or no. We find this contention to be totally without merit. The officer quite obviously was not able to answer the question with a simple yes or no, and he was entitled to explain himself. Fields v. State, 176 Ga. App. 122 (335 SE2d 466) (1985). Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of such answers. Felker v. State, 252 Ga. 351 (11), 377 (314 SE2d 621) (1984).

5. Because the record reflects that the appellant received only one sentence (17 years, to serve 12) for both of the two convictions and because we have reversed the child molestation conviction, it follows that the appellant’s sentence must be vacated and the case remanded for resentencing.

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

Carley, J., concurs. Benham, J., concurs fully as to Divisions 1, 2, 3, and 5 and in judgment only as to Division 4.

Decided May 4, 1987

Rehearing denied June 3, 1987

Rehearing dismissed July 22, 1987.

Michael C. Clark, for appellant.

Thomas C. Lawler III, District Attorney, Phyllis Miller, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    74810.
    JACKSON v. WILLIAM L. BONNELL COMPANY et al.
    (359 SE2d 919)
   McMurray, Presiding Judge.

This is a workers’ compensation case. Claimant suffered a com-pensable injury and she received compensation benefits from the employer/insurer. Thereafter, the employer/insurer sought a change in condition finding in order to suspend the payment of benefits. Following a hearing, the administrative law judge determined that claimant’s injury (to a trapezius muscle) triggered psychological symptoms which prevented claimant from performing her duties on the job. Thus, even though claimant was physically able to perform her job duties, the administrative law judge denied the employer/insurer’s motion to discontinue benefits. In so doing, the administrative law judge specifically found that claimant’s psychological disability is real and that she is not malingering.

On appeal, the full board with one member dissenting, entered an award in favor of the employer/insurer. In its ruling, the full board found that claimant “is physically able to perform the duties of a driller . . .’’No finding was made by the full board concerning claimant’s psychological condition.

Claimant appealed to the superior court which affirmed the decision of the full board. We granted claimant’s application for a discretionary appeal. Held:

The board made a finding concerning claimant’s physical condition but did not address the crucial issue of whether claimant’s psychological condition stems from her compensable injury and whether she is disabled as a result of her condition. See generally St. Paul Ins. Co. v. Henley, 141 Ga. App. 581 (234 SE2d 159). No finding was made concerning her mental condition. In the absence of such a finding, a reviewing court cannot determine the propriety of the board’s award. Accordingly, we reverse and remand this appeal with direction that appropriate findings be made by the board with regard to claimant’s psychological injury. See Dycol, Inc. v. Crump, 169 Ga. App. 930 (315 SE2d 460).

Judgment reversed and case remanded for proceedings not in consistent with this opinion.

Decided July 8, 1987

Rehearing denied July 22, 1987.

John G. Shumaker, for appellant.

Oliver B. Dickins, Jr., for appellees.

Sognier and Beasley, JJ., concur.