author: Deen, Presiding Judge. Birdsong, Judge,

text:
    A89A1905.
    HIBBERT v. THE STATE.
    (393 SE2d 96)
   Deen, Presiding Judge.

Lascelles Hibbert was convicted of trafficking in cocaine in an amount exceeding 400 grams in weight. Driving north from Florida, he was stopped for improper tag display near Richland, Georgia. During the brief stop, the state trooper ascertained the car was a rental car and asked Hibbert where he was going; Hibbert stated he was driving to Fort Benning, Georgia, to visit a friend, but he could not name the friend nor give an address or phone number, or a place of contact. His suspicions thus aroused, the trooper asked permission to search the vehicle, and Hibbert agreed.

When the trooper looked in the trunk, he noticed that the carpet appeared to have been tampered with. He pulled back the carpet and discovered a taped brown-wrapped package which contained a substance he field-tested to be cocaine. Hibbert disavowed all knowledge of the package and its contents.

Thereafter, when Hibbert was arrested and given a Miranda warning, he did not speak further until taken to the station. Later, at the station, GBI Agent Bracewell conducted an interview with Hibbert. At first Hibbert signed a waiver of rights, but then Hibbert stated he wanted an attorney before he spoke. The agent told Hibbert the interview was terminated, and then proceeded to ask him routine questions incident to completing an arrest report. He asked biographical questions about Hibbert and for the names and addresses of Hibbert’s family members. According to the agent, appellant “hesitated when I started asking him his family’s names and addresses and that’s when I noted that he seemed concerned in giving me that answer ... he just seemed like something was weighing heavily upon him and that’s when he said he’d like to speak to [us] in confidence.” He said something like, “Can I tell y’all something? Can I talk to y’all[?]” and he seemed scared. Even though the agent again warned Hibbert of his right to an attorney, Hibbert insisted on talking; “he stated the reason he wanted to [talk] was he was concerned with his family’s safety in Miami.”

Although he still disavowed any knowledge of what was in the package, Hibbert revealed the name (Sharpe) and location of his intended contact. Subsequently Hibbert, wearing a body bug, “delivered” the package to Sharpe, who was thereupon arrested. All of these facts were admitted in evidence.

Hibbert appeals his conviction on grounds that the continued interrogation was constitutionally illegal, and that the resulting confession and statements were illegally admitted. Held:

After a suspect in custody has invoked his right to counsel, subsequent interrogation is strictly prohibited unless initiated by the suspect. Michigan v. Jackson, 475 U. S. 625 (106 SC 1404, 89 LE2d 631) (1986). However, it must be emphasized that the prohibition is against interrogation, not all communication between suspect and police. The routine inquiry concerning identification of the appellant’s family members, having nothing to do with the criminal investigation, cannot reasonably be considered interrogation.

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U. S. 291, 301-302 (100 SC 1682, 64 LE2d 297) (1980).

In this case, following termination of the interrogation, the officer proceeded to complete a standard form used by the department as an arrest record, which inquired as to names and addresses of family members. Arrest records are mandatory under OCGA § 17-4-27, and routinely inquiring about names and addresses of family members serves two very reasonable purposes: (1) it identifies someone to contact in case of medical emergency; and (2) it provides a reference point in case the defendant escapes. This inquiry was normally attendant to arrest and custody, and had absolutely nothing to do with the interrogation regarding the criminal offense under investigation. Accordingly, Hibbert’s subsequent, self-initiated statement was not unlawfully obtained.

Judgment affirmed.

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

Birdsong, Judge,

dissenting.

The majority concludes that the intrusive questioning of appellant, after he had requested representation by counsel, merely constituted a form of routine question designed to perfect the information necessary to complete an arrest record. OCGA § 17-4-27. I disagree. Contrary to the assertions of the majority, the posing of personal questions requiring appellant to reveal the names and addresses of relatives was neither essential nor routine in the manner in which it impacted upon appellant. While such questioning may well have provided information for the purposes the majority states, it is equally likely that it would provide leads for further criminal investigation should the police elect to transmit such information as criminal intelligence to other police agencies, and also could cause information to be revealed which could place innocent family members in jeopardy of their safety from a member of the ever-growing criminal drug distribution community. As stated by the majority, “the definition of interrogation can extend only to words or actions on the part of police officers that [the police] should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U. S. 291, 301-302 (100 SC 1682, 64 LE2d 297). The police should have known that asking personal questions to a frightened suspect, particularly one who has attempted to avail himself of his right to counsel thereby signifying that he believed himself in need of the sage advice of legal counsel, about the identification and location of his family, would be likely to elicit an incriminating response by the suspect. Clearly, such a response would be reasonably likely to protect appellant’s family members either from threat of their safety from the criminal drug dealing element or from the threat of criminal investigation, or both. In this regard, it is worthy of note that the police made no genuine effort to ease appellant’s concern by explaining to him why they were asking such personal questions. Rather, they proceeded in a manner which, in effect capitalized to the maximum upon the psychological pressures and fears being heaped upon appellant.

Accordingly, the questions about his wife, parents, and siblings in this case were not such “routine incidents of the custodial relationship” as to supervene his right to remain silent. See Oregon v. Bradshaw, 462 U. S. 1039, 1045 (103 SC 2830, 2835, 77 LE2d 405). Clearly initiating questions regarding close family members was a means of “weighing down” upon appellant, and in fact, caused him to immediately become nervous and upset, and frightened for the safety of his family from some threat. The questioning obviously broke down appellant’s determination to remain silent before he could consult with an attorney as he had lawfully and unequivocally requested. To a suspect who has “indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.” Arizona v. Roberson, 486 U. S. 675, 686 (108 SC 2093, 100 LE2d 704). After the request to remain silent, any questioning considered to be necessary should be subject to the greatest restraint.

Decided March 16, 1990

Rehearing denied March 29, 1990

J. Michael Greene, for appellant.

John R. Parks, District Attorney, for appellee.

I find no difficulty in this case in determining that the continued interrogation was in violation of appellant’s constitutional rights, and that all the statements and confessions thereby obtained should have been suppressed, pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694); see Rhode Island v. Innis, supra at 301. And, under the operative circumstances of this case, it cannot be said that the illegally admitted evidence did not affect the jury’s verdict so as to be harmless either beyond a reasonable doubt (as required in cases of violations of constitutional magnitude) or under the reasonable probability test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) and Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515). The admissible evidence of record does not so overwhelmingly prove appellant’s guilt in this case, that we can sustain the error as harmless in the face of the admission into evidence of appellant’s illegally obtained confession.

I respectfully dissent. I am authorized to state that Chief Judge Carley, Judge Sognier, and Judge Cooper join in this dissent.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A89A1909.
    CANDLER v. WICKES LUMBER COMPANY et al. CANDLER v. WIELAND et al.; and vice versa.
    A89A1910, A89A1911.
    (393 SE2d 99)
   Beasley, Judge.

These cases are consolidated appeals and a cross-appeal from a judgment. The dispute involves adjacent parcels of property in Service Merchandise Plaza in the City of College Park.

Appellees Wieland and other partners (“Wieland”) own a parcel of land on which appellee Wickes Lumber Company is a tenant. Appellant Candler is the owner of a long term leasehold interest in the realty adjoining the Wieland land and operates a shopping center on it. The two properties have a common property line of several hundred feet, most of which runs across a paved parking lot used by customers and employees of the stores on each parcel.

In 1970 Candler’s predecessor in title and Wieland executed a written easement agreement over and across certain sections of the common property line within the paved parking area, granting the right of ingress and egress across the common property line “in such manner as to provide an unobstructed flow of vehicular and pedestrian traffic between the two properties.” A parking easement was also established by the agreement.

In May 1986, without prior notice to Wickes or Wieland, Candler broke ground on a proposed retail store building on his property running 180 feet along and roughly parallel to the common property line. Wickes sued Candler and his contractor Ken Pritchard, d/b/a Pritchard Construction Company, seeking temporary and permanent injunction against the construction of this “Building J” for violation of the access and parking easements. Alleging that Candler was “stubborn and litigious (sic)” and guilty of bad faith in the matter, Wickes sought expenses of litigation and attorney fees. A temporary restraining order stopped construction. At its expiration, Candler voluntarily abandoned further construction. Several months later Wieland filed a similar complaint seeking injunctive relief. Wieland claimed, in addition, violation of visibility or view rights and sought to terminate a sewer easement utilized by Candler across Wieland property. By amendment allowed, they added as parties the City of College Park, its Board of Zoning Appeals, its City Council and members as named, alleging that they improperly and unconstitutionally granted a variance to Candler in 1981 for construction of Building J.

Wieland moved for summary judgment as to Candler and Pritchard only. Wickes later joined that motion but added no new parties to its action. The trial court, which had the easement document in evidence, denied the motions for summary judgment, stating that it could not say “as a matter of law, that the Easement Agreement prohibits the proposed construction.” It also stated that “the issue of cancellation of the sewer easement is not proper for summary adjudication. . . .” It went further and in effect granted summary judgment against Wieland on the variance issue, stating that “proper government authorization was obtained for the construction of ‘Building J.’ ”

The two actions were consolidated for bench trial. At the close of plaintiffs’ evidence, the Wieland counsel stated in his place that his law firm had spent about $5,000 in expenses and approximately 500 hours of attorney time in representing them, that their lawyers’ fees ranged from $100 to $225 an hour and paralegal fees from $45 to $65 an hour, and that this was the best evidence he had at the time. He acknowledged that a substantial amount of discovery related to the variance and sewer issues. Wickes’ attorney stated in his place that he had 86 hours in the case and his average hourly rate over the course of the case was $100. Wickes’ counsel offered himself for cross-examination, but Candler’s counsel declined and made no objection concerning the admissibility of this evidence.

At the conclusion of the trial the court suggested that he and counsel hold a teleconference so he could set forth his tentative findings and allow counsel to propose findings of fact and conclusions of law. During the teleconference, the court informed counsel that he found the intent of the easement to provide an unobstructed flow of vehicular and pedestrian traffic would have been clearly violated by the construction of Building J, and that he would grant a permanent injunction against it. He also expressed his intent to award attorney fees, “but not to the full extent asked.” Explaining that while the easement question was not a summary judgment issue because there were factual questions, he concluded that there was not a “significant” fact issue and thus he thought attorney fees “in the amount of fifty percent, as requested by both Wickes and Wieland, ought to be awarded. After commenting that he was not prepared to make a finding that bad faith had been shown, the court stated that was why he thought fifty percent of the attorney fees sought was a proper award. Suggesting this should be set out in the order, the court concluded the conference by asking counsel either to present agreed findings of fact and conclusions of law or to submit individual ones for the court to redraft.

The parties were unable to agree. By letter to the court, Candler’s counsel requested it to reconsider its oral ruling in regard to attorney fees and costs.

Wieland responded in a letter arguing the lack of merit of Candler’s position regardless of the denial of both plaintiffs’ and defendants’ motions for summary judgment. This letter urged the court to find that even if plaintiffs did not make the detailed showing of “reasonableness” of attorney fees which defendants Candler and Pritchard argued was required, they were nevertheless entitled under OCGA § 9-15-14 to all such costs as may be found by the court; and that since the award was statutorily mandated, the court and not a jury determines what is reasonable, under the any evidence standard. The letter concluded: “From evidence received at the trial, it appears that [defendants have paid their [c]ounsel more than $50,000. ... We note in this regard that we have advised [c]ounsel for [defendants that our fees and expenses not involved with the College Park [variance] issue aggregated $77,911 and $5,045, respectively, as of . . . September 30th; we have also invited inspection of our billing records. We are prepared to submit to such further evidentiary hearing regarding fees and expenses as the [c]ourt may wish, and we are also prepared to file a formal motion under OCGA § 9-15-14 for that purpose.” (Indention omitted.) No such motion was filed nor was a further trial of the issue conducted.

The court in a final judgment held that Building J violated the intent of the easement agreement by constituting a substantial obstruction of the flow of traffic between the properties; that this finding was not based on any alleged visibility easement or upon the destruction of existing parking places; and that while Candler had “been stubborn and litigious in that his proposed building violate [d] the unambiguous intent of the [e]asement [agreement,” the “action or defense of this action was [not] done in bad faith as there was an arguable question of fact.” The court held that “the attorney fees incurred by the plaintiffs were reasonable and necessary” but declined to award the full amount requested. It ordered Candler to pay Wieland $44,000 and Wickes $4,300.

Case Nos. A89A1909 and A89A1910

1. Candler appeals only from the awards of attorney fees, on three grounds: 1) attorney fees cannot be awarded in an equity action; 2) attorney fees were precluded by a bona fide controversy; 3) lack of proof of the reasonable value of the fees and their certainty, for the work performed, as to the claim on which plaintiffs prevailed.

Appellees’ post-trial letter to the trial court sought attorney fees pursuant to OCGA § 9-15-14, although in their complaints both Wieland and Wickes “specially pleaded and . . . made prayer therefor” in accordance with OCGA § 13-6-11. See Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 275 (7) (329 SE2d 900) (1985). The court order does not refer to either Code section. However, its finding that Candler had been “stubborn and litigious (sic)” and its use of other language found in OCGA § 13-6-11 but not in OCGA § 9-15-14 convinces us that the attorney fee awards were made under the aegis of OCGA § 13-6-11. All appellate arguments are directed to that statute. The errors enumerated will be considered only under it.

(a) Attorney fees are allowable under OCGA § 13-6-11 in equity cases. C & S Nat. Bank v. Haskins, 254 Ga. 131, 137 (4) (327 SE2d 192) (1985) and cases cited.

(b) Only stubborn litigiousness, and neither of the other two statutory grounds under OCGA § 13-6-11, i.e., bad faith nor unnecessary trouble and expense, formed the foundation for the award. Thus, if there were a bona fide controversy, then the trial court could not conclude that defendant was stubbornly litigious and awards for the expenses of litigation would be unjustified. “The key to the test is whether there is a ‘bona fide controversy.’ ” Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (2) (278 SE2d 33) (1981). Such an award is not generally allowed under our system and is regarded as an additional amount of damages for the victor. See C & S Nat. Bank, supra at 138 (4).

Wickes alleged that the proposed Building J would violate two easements, one for parking and one for ingress and egress, or access. The trial court denied summary judgment because there were issues of fact. It intimated that, for example, if the building accommodated pass-through traffic, then there would be no obstruction of pedestrians; they would simply walk through the building rather than across the parking lot. Candler made architectural modifications accordingly after the summary judgment hearing. In defendant’s favor, there was some evidence that no bars to access would result and also that at most only small percentages of shoppers would be affected.

The court ultimately concluded that the building would not violate the parking easement. A bona fide dispute as to part of a claim precludes a finding of stubborn litigiousness. Gaston v. Mullins, 168 Ga. App. 371, 372 (1) (309 SE2d 166) (1983). That is a very practical principle, for were it otherwise, the task of separating out the litigation expense relating exclusively to the points which should have been conceded without lawsuit would itself be costly, time-consuming, and frequently impossible.

Although the court did conclude that the access easement prevented the building’s construction as planned, it found that there was no “bad faith” in defending the action because “there was an arguable question of fact” in the defense of the action. Since the court itself recognized, in effect, a bona fide controversy, it could not award to Wilkes the expenses of litigation as an additional measure of damages against Candler. Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 222 (2) (308 SE2d 564) (1983). Although it used the term “bad faith” in measuring the conduct of Candler as the suit’s defendant, it obviously did not mean the type of bad faith which would support litigation expenses under the statute. The reason is that such bad faith relates to that which arises out of the transaction upon which the complaint is based. It refers to a time prior to the institution of the suit, not defendant’s conduct in defending the case. Id. at 221; Brannon Enterprises v. Deaton, 159 Ga. App. 685 (285 SE2d 58) (1981); Allen v. Brackett, 165 Ga. App. 415, 421 (3) (301 SE2d 486) (1983). For the same reasons, Wieland is not entitled to the similar award. The circumstances are even more weighty against it. Wieland lost on four of its claims. The court found no violations of their visibility or sewer easement rights, as well as no violation of their parking rights. In addition, the court early on rejected the zoning variance claim against Candler, the City, and the other added parties. Wieland had contended that a 1981 variance which would have allowed the building was unlawfully obtained and unlawfully granted. These were not insignificant resolutions in Candler’s favor, as they did not amount to a prohibition against any structure but only one that interfered with access.

Defense against these claims was not only warranted as arguable, it prevailed. It would be peculiar if the law assessed the loser’s expenses in this regard against the winner. Although Wieland may argue that it supplemented its trial evidence and revised its claim for expenses in its letter to the court following trial, so as to extract only those related to the access easement issue, that is not evidence even if we were to accept it as otherwise sufficient proof. Damage awards must be supported by trial evidence. See, e.g., Tri-State Systems v. Village Outlet, 135 Ga. App. 81, 85 (2) (217 SE2d 399) (1975).

The awards made pursuant to OCGA § 13-6-11 must be reversed. We need not reach the remaining ground regarding sufficiency of the evidence.

Case No. A89A1911

2. The cross-appeal by the Wieland partners arises from the additional claim raised by amendment to their complaint. They assert that the trial court improperly denied their motion for summary judgment and ruled in Candler’s favor that proper governmental authorization was obtained for the proposed construction of Building J, contending (1) that the College Park Board of Zoning Appeals did not make the findings and determinations required by the applicable zoning ordinance; (2) that the purported grant of the variance was invalid because, as interested parties, they were not provided with proper notice; (3) that no authorization was obtained for the actual construction of Building J; and (4) that Candler misrepresented to the Board certain material issues of fact upon which the Board relied in granting the variance.

These objections are immaterial and irrelevant because the varianee complained of related only to a reduction in the number of parking spaces required by the city ordinance on Candler’s property. No variance or other special authorization was necessary to proceed with construction of Building J once a building permit was secured, and such a permit was issued on June 2, 1986. The hearing on the parking variance occurred in 1981, and the allowed reduction in the overall number of parking spaces in Candler’s shopping center has no bearing on the issue of whether the easement agreement was violated by obstruction of the flow of vehicular and pedestrian traffic between the two properties. Nor have the cross-appellants demonstrated that any damage accrued to them as a result of allowing the parking variance, particularly since Candler did not appeal from the injunction against construction of Building J.

Decided March 16, 1990

Rehearing denied March 29, 1990.

Smith, Gambrell & Russell, James H. Bratton, Jr., Lisa L. Ballentine, Wood & Meredith, Dwight A. Meredith, for Wieland.

Morris, Manning & Martin, Richard P. Reinhart, Gerald L. Pouncey, Jr., David A. Rabin, for Candler.

Howard H. Johnston, for Wickes.

Judgments reversed in Case Nos. A89A1909 and A89A1910 and affirmed in Case No. A89A1911.

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


text:
    A89A2123.
    COLQUITT v. NETWORK RENTAL, INC.
    (393 SE2d 28)
   Beasley, Judge.

Colquitt appeals the grant of summary judgment on his counterclaim for interference with contract rights, costs and attorney fees under OCGA § 9-15-14, and abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).

Network Rental, Colquitt’s former employer, sued in August 1986 to enjoin him and another former manager from working as managers for a competitor in the “rent-to-own” industry. The suits were premised on a non-competition clause contained in the two men’s contracts with Network. The court hearing Colquitt’s suit ruled the clause enforceable while the court in the second suit held it was not.

Colquitt began work for Network in October 1985 and signed the employment contract with this following covenant: “Employee agrees that he will not, in any way, directly or indirectly, . . . within three (3) years after the termination of his employment . . . either as an individual on his own account or as a partner, employee, officer, director, stockholder, or agent of or for any person, firm, association, or corporation, engage, within [fourteen named Georgia counties] in either the performance of any duties which are the same or similar to those duties performed by Employee while employed by Network Rental for, or the management of, any business establishment renting televisions, stereos, furniture, and appliances which are the same or similar to those rented by Network Rental within the territory described above.....” A clause provided that employee agreed that Network would be entitled to injunctive relief upon proof of a violation of the covenant. Colquitt had no experience in the rent-to-own industry and was given classroom and on-the-job managerial training. He became a manager of a Gwinnett County Network store before leaving Network voluntarily. He then began work for a direct competitor, managing its Gwinnett County store approximately a mile from Network’s.

Both cases were appealed to the Supreme Court, which found the clause unenforceable in a non-unanimous decision reversing the 9-month-old injunction against Colquitt. Colquitt v. Network Rental, 257 Ga. 652 (363 SE2d 150) (1987). The court concluded that the “covenant is too broad in both its time restriction and its territorial restriction, see Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 183-184 (236 SE2d 265) (1977); Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 140 (1) (287 SE2d 546) (1982); Crowe v. Manpower Temporary Services, 256 Ga. 239, 240 (1) (347 SE2d 560) (1986).” The grant of summary judgment to Network on Colquitt’s counterclaim for abusive litigation and attorney fees was reversed since it was “based on its determination that the restrictive covenant was valid . . . ."

Summary judgment was granted to Network on three causes of action in the amended counterclaim, i.e., intentional interference with contract claim; Yost; and attorney fees and costs pursuant to OCGA § 9-15-14.

1. We first consider the scope of the review. Appellant filed a supplemental enumeration of errors on November 14, 1989 and a supporting brief on December 27. The case had been docketed on August 10 and appellant was required to file any enumeration of error within 20 days thereafter. “An enumeration of error may not be amended after the original filing time has expired. [Cits.]” Parham v. State, 166 Ga. App. 855, 856 (305 SE2d 599) (1983); MacDonald v. MacDonald, 156 Ga. App. 565, 569 (2) (275 SE2d 142) (1980).

2. The trial court held that the fact that the restrictive covenant was eventually declared invalid did not mean the suit at its inception was “bereft of any justiciable issue” and that the action did not lack substantial justification, due to the court’s original grant of summary judgment to Network, citing Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613 (379 SE2d 555) (1989).

While Georgia does regard as void those contracts which lessen competition and restrain trade against public policy, a contract containing such type clause may be upheld “if the restraint is reasonable and the contract is valid in other respects. [Cit.]” Shanco Intl. v. Digital Controls, 169 Ga. App. 184, 186 (1) (312 SE2d 150) (1983). Whether such restraint is reasonable is a question of law for the court, but if the contract is not void on its face, reasonableness is tested in light of the specific facts. Rollins Protective Svcs. v. Palermo, supra at 139 (1). Not all such covenants are unreasonable. Beckman v. Cox Broadcasting, 250 Ga. 127 (296 SE2d 566) (1982).

Colquitt’s contention below was that his clause was premised on an “anomaly” of Georgia law, Pierce v. Indus. Boiler Co., 252 Ga. 558 (315 SE2d 423) (1984), and that Network should have known such a contract would not be upheld. Since the court below granted summary judgment to Network, the evidence is viewed in favor of Colquitt, and it is assumed that it was so based. Pierce upheld a territorial restriction of a 120-mile radius and a restriction that the employee was not to engage in the boiler sales business in any capacity held by him for one year. The language is very similar to that in the contract at issue.

(a) Because the area of non-compete clauses is one in which similar clauses beget dissimilar results and each case must be considered on its own particular facts, see Fuller v. Kolb, 238 Ga. 602, 605 (234 SE2d 517) (1977) (dissenting opinion), the suit here did not suffer from such a complete absence of justiciable issues of law and fact that no court would accept it. Yost, supra; Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79 (387 SE2d 34) (1990).

Colquitt contends the trial court’s reliance on its original summary judgment order as establishing “substantial justification,” which it labels probable cause, was erroneous. It was not. Bulldog Trucking v. Adams, 259 Ga. 382 (380 SE2d 702) (1989); Bouchard v. Fowler, 193 Ga. App. 697 (388 SE2d 874) (1989); Biosphere, supra; compare Howe v. Roberts, 259 Ga. 617, 619 (2) (385 SE2d 276) (1989).

(b) Likewise, the denial of OCGA § 9-15-14 attorney fees and costs of litigation was not an abuse of discretion under these circumstances. Bulldog, supra; Bouchard, supra; Biosphere, supra.

(c) The court granted summary judgment on the count for intentional interference with contract on the theory that, since the Yost and OCGA § 9-15-14 claims failed, there was no basis for that claim as a counterclaim for abusive litigation. This procedural rationale is relevant only to claims for attorney fees and costs under OCGA § 13-6-11, which is not present. However, a decision right for any reason will be affirmed. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978); Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (1) (380 SE2d 78) (1989). Therefore, the merits of the claim alleging interference with contract rights will be reviewed.

Decided March 13, 1990

Rehearing denied March 29, 1990

Fowler, Hein & Daum, Robert P. Hein, David R. Passino, for appellant.

Winburn, Lewis & Barrow, Gene Mac Winburn, Jeffrey W. Bell, for appellee.

The issue is whether a former employer tortiously interferes with the contract rights of its former employee by obtaining from a court an injunction against that former employee’s working for a competitor.

Network notified the competitor that Colquitt was working in violation of a non-compete clause, by copy of its attorney’s letter to Colquitt asking him to cease and desist. But the competitor took no steps to relieve Colquitt of his managerial duties. When Colquitt was advised of the order enjoining his working for a competitor, he quit.

An employee has a property right in his contract of employment with which another may not unlawfully interfere. OCGA § 51-9-1; Ott v. Gandy, 66 Ga. App. 684, 688 (19 SE2d 180) (1942). Thus, although there was “interference,” the former employer’s availing itself of the court for the settlement of the dispute, even though the court’s decision was later overturned, was not such an unauthorized act or one without legal justification so as to give rise to liability for interference with contract rights. Singleton v. Itson, 192 Ga. App. 78, 79 (383 SE2d 598) (1989); Combs v. Edenfield, 184 Ga. App. 75, 77 (360 SE2d 743) (1987); see Fulton Grocery Co. v. Maddox, 111 Ga. 260, 264 (36 SE 647) (1900).

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A89A2185.
    COFFEE et al. v. SILVER.
    (393 SE2d 58)
   Cooper, Judge.

Appellee performed dental surgery on appellant Jane Coffee (“Mrs. Coffee”) and brought suit against Mrs. Coffee to recover $1,550 for dental services rendered. Mrs. Coffee defended and counterclaimed alleging negligence, breach of contract, dental malpractice, and assault and battery. Appellant Don Coffee (“Mr. Coffee”) intervened seeking damages for loss of consortium. The case was tried before a jury and at the close of the evidence, the court denied appellants’ motion for directed verdict as to liability and granted appellee’s motion for directed verdict on the assault and battery count. The jury returned a verdict in favor of appellee for $500 and awarded to appellant no damages on the counterclaim. This appeal follows the trial court’s denial of appellants’ motion for judgment notwithstanding the verdict, or in the alternative, for a new trial.

1. In enumerations of error 1, 2, 4 and 7, appellants seek review of the trial court’s rulings on motions for directed verdict, j.n.o.v. and new trial. In enumerations 3, 5, 6 and 9, appellants contend the court erred in the submission of certain issues to the jury. In support of these contentions, appellants filed a transcript containing only argument on the motions for directed verdict, appellee’s closing argument and the charge to the jury.

“ ‘(T)he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. (Cits.) . . . “(W)here the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Cits.)’ ” In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988). In this case, review of the foregoing enumerations of error requires consideration of all the evidence and not selected excerpts from the trial transcript. The transcript submitted is an insufficient record of the proceedings below. Lawson v. Watkins, 188 Ga. App. 245 (1) (372 SE2d 830) (1988). See also Welch v. Mercer, 165 Ga. App. 776 (302 SE2d 629) (1983).

“ ‘Since in the absence of a transcript or other appropriate substitute, OCGA § 5-6-41 (g), an appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence, for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction, (cit.), we are constrained to affirm the (judgment).’ [Cit.]” Brown v. Thomas, 191 Ga. App. 679 (1) (382 SE2d 656) (1989).

2. Appellants contend in their eighth enumerated error, that the trial court erred in failing to caution counsel for appellee as to personal references made concerning appellants’ counsel. Since no such objection was raised at trial, the issue will not be considered on appeal. McNeil v. Cowart, 186 Ga. App. 411 (2) (367 SE2d 291) (1988).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

Decided March 15, 1990

Rehearing denied March 29, 1990

Chamberlain, Hrdlicka, White & Johnson, Richard N. Hubert, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Robin Frazer, for appellee.


author: Banke, Presiding Judge.

text:
    A90A0363.
    GONZALEZ v. THE STATE.
    (392 SE2d 893)
   Banke, Presiding Judge.

On appeal from his conviction of trafficking in cocaine, the appellant contends that the trial court erred in refusing to suppress the contraband on which the conviction was based.

While on patrol at approximately 4:51 a.m. on March 26, 1989, Georgia State Trooper Michael Ralston saw a vehicle being driven by the appellant weave from one curb to the other as it exited into a rest area on Interstate 75 near Adairsville. Ralston followed the vehicle into the rest area, where he observed the appellant and a companion, later identified as Luis Hidalgo, get out and walk towards the rest rooms. Concerned that the appellant “was possibly intoxicated or very fatigued from driving,” Ralston confronted him upon his return and asked to see his driver’s license and vehicle registration papers. The appellant responded by producing a Florida driver’s license, along with an Illinois registration document revealing that the vehicle belonged to an individual named Juan Guillon. He explained to the trooper that he and his companion were en route to Chicago from Florida to deliver the vehicle to Mr. Guillon, following which they intended to return to Florida by plane. However, he was unable to give the trooper a telephone number for Mr. Guillon.

After speaking with Mr. Hidalgo and determining that the latter’s explanation for the purpose of the trip was consistent with the appellant’s, Ralston radioed his state patrol unit and asked them to “check with the directory in Chicago to see if they had a telephone listing” for Mr. Guillon. He received a negative response to this inquiry, whereupon, after returning the appellant’s driver’s license and vehicle registration documents to him, he asked the appellant to consent to a search of the vehicle. By this time, approximately 20 minutes had passed since the trooper’s initial encounter with the appellant. The appellant agreed verbally to permit a search of the vehicle, following which Ralston read him the contents of a “voluntary consent to search form” advising him, among other things, of his right to refuse to consent to the search. Ralston testified that the appellant signed this form after acknowledging that he understood its contents; and the form itself, bearing the appellant’s signature, was introduced into evidence.

Before proceeding with the search of the vehicle, the trooper conducted a pat-down search of the appellant’s person “for safety purposes.” During the course of this procedure, he felt an object in the appellant’s right front pocket and asked him what it was. The appellant responded by removing an unlabeled plastic prescription container from the pocket, which the trooper took from him and opened, exposing to view a “white powder substance.” Believing “from personal experience” that this substance was cocaine, Ralston then placed the appellant under arrest for possession of cocaine and proceeded with the search of the vehicle. Although he was unable to find any significant quantity of contraband inside the vehicle during this search, he did observe a white powdery substance in the middle of the front seat and on the steering column. Acting again on the basis of “personal experience,” he formed the opinion that this substance also was cocaine. He then performed a “field test” on the substance he had found in the prescription container, the results of which confirmed his belief that it was cocaine. He did not, however, perform a similar test on the substance found on the seat and steering column of the vehicle, nor was any other chemical analysis ever made of that substance.

The appellant was advised at this time that he was under arrest for possession of cocaine, while his companion, Mr. Hidalgo, was informed “that he would [also] be detained until a further search of the vehicle could be made.” The latter responded by saying he was cold and pointing to a jacket which was lying atop some luggage which had been removed from the trunk of the vehicle during the search. Ralston searched this jacket for possible weapons preparatory to giving it to Mr. Hidalgo and discovered a marijuana cigarette in one of the pockets. On the basis of this discovery, he advised Mr. Hidalgo that he was under arrest for possession of marijuana, at which point, according to the trooper, the appellant announced that the jacket was his.

The two suspects and their vehicle were thereafter transported to the sheriff’s office, where the vehicle was subjected to a second search, this time with the aid of drug-sniffing dogs. Ralston testified that before commencing this second search, he asked the appellant “for permission to search the vehicle again or continue to search the vehicle.” He stated that the appellant responded that “it was okay, to go ahead and search,” but refused “to sign any more forms due to the fact that, I guess, he was already under arrest.” During this second search of the vehicle, which occurred some two hours after Ralston’s initial encounter with the appellant, approximately 930 grams of cocaine were discovered inside a hidden compartment located behind the dashboard of the vehicle.

The trial judge granted the appellant’s motion to suppress the prescription container and its contents, concluding that it had been seized during the course of an improper frisk. In addition, the court suppressed the marijuana cigarette with respect to Mr. Hidalgo but not with respect to the appellant. The court declined, however, to suppress the 930 grams of cocaine which had been seized during the second search of the vehicle, concluding that this search had been authorized by the original consent signed by the appellant at the rest area. Held:

Pretermitting whether the appellant consented freely and voluntarily to the second search of the vehicle, and further pretermitting whether the prescription container was lawfully seized from his person, we hold that the second search of the vehicle was authorized by the discovery of the suspected cocaine on its front seat and steering column during the course of the initial search of the vehicle at the rest area. There is no question that the appellant consented freely and voluntarily to that search; and although it does not appear that any portion of the powdery substance in question was ever subjected to chemical analysis, Ralston’s belief, based on his personal experience, that the substance was cocaine must be credited with substantial weight in view of the fact that his identical opinion regarding the substance in the prescription container was later confirmed by chemical analysis. We thus conclude that, based on the totality of the circumstances known to him at the time, the trooper acquired probable cause to arrest the appellant and his companion for possession of cocaine during the original search of the vehicle. It follows that the impoundment and subsequent search of the vehicle resulted in no violation of the appellant’s Fourth Amendment rights, for “ ‘when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody.’ Michigan v. Thomas, 458 U. S. 259, 261 (102 SC 3079, 73 LE2d 750) (1982).” Barfoot v. State, 173 Ga. App. 461 (2) (326 SE2d 791) (1985). Accord Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985); Glover v. State, 139 Ga. App. 162 (2) (227 SE2d 921) (1976).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

On Motion for Rehearing.

The appellant contends on motion for rehearing that this court erroneously relied upon suppressed evidence (i.e., the results of the “field test” performed on the white powdery substance discovered inside the prescription bottle) in reaching its conclusion that trooper Ralston had probable cause to believe the white powdery substance he observed on the seat and steering column of the vehicle was cocaine. However, our reliance on the results of this field test has nothing to do with the fact that the prescription bottle was seized from the appellant. For our purposes, the relevance of this evidence was simply that it supported Ralston’s claim that he had the ability to recognize cocaine by observation; and in this respect, the significance of the results would have been the same even if the test had been performed on cocaine obtained from a source totally unconnected with the appellant. We thus conclude that even if the test results were not admissible as evidence that the appellant was in possession of illicit contraband, they nevertheless had probative value on the limited issue of whether Ralston knew cocaine when he saw it.

Decided March 12, 1990

Rehearing denied March 29, 1990

Bailey & Bearden, J. Lane Bearden, Cook & Palmour, Bobby Lee Cook, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

The motion for rehearing is denied.


author: Cooper, Judge. Deen, Presiding Judge,

text:
    A89A1627.
    McDANIEL et al. v. HENDRIX et al.
    (393 SE2d 4)
   Cooper, Judge.

This medical malpractice action, originally dismissed without prejudice, was refiled by plaintiffs/appellants within the allowed time period, specifically incorporating the discovery taken in the original action. In a related appeal to this court, the denial of defendant Northside Hospital’s motion to dismiss was affirmed on grounds not involved in the instant appeal. See Hospital Auth. of Fulton County v. McDaniel, 192 Ga. App. 398 (385 SE2d 8) (1989). Appellants included with their complaint, by way of amendment, the affidavit of their expert witness as required by OCGA § 9-11-9.1. The physician appellees moved for summary judgment on the ground that the affidavit submitted by appellants’ expert stated a standard of care which, under Georgia law, insufficiently measures appellees’ conduct. The appellants herein appeal the grant of summary judgment by the trial court. We affirm.

1. When a defendant in a medical malpractice action has submitted his or her affidavit that the services performed complied with the requisite standard of care, a plaintiff, to withstand a summary judgment motion, must produce an expert’s affidavit contesting that claim. Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500 (1) (333 SE2d 884) (1985). “If the plaintiff fails to produce a contrary expert opinion in opposition to the motion, then there is no genuine issue to be tried by the jury. . . .’’Id. Georgia law requires that the standard to be used to establish professional medical negligence under OCGA § 51-1-27 is that standard of care “ ‘which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally. [Cits.]’ ” Cronic v. Pyburn, 170 Ga. App. 377, 378 (317 SE2d 246) (1984). Thus, evidence of non-compliance with local standards is not sufficient to state a claim or to withstand a summary judgment motion.

To support their motion, appellees herein submitted their own affidavits stating compliance with the standards of care employed by the medical profession generally under the same conditions and like circumstances. In the opposing affidavit of appellants’ expert, the appellee physicians’ conduct is clearly measured against the “accepted standards of medical care for similar physicians specializing in obstetrical medicine practicing in Atlanta, Georgia, or in any other similar community. . . .” Appellants submitted two separate affidavits of their expert during this re-filed action and in each affidavit, the expert uses this same local standard. Therefore, following this court’s decision in Cronic v. Pyburn, supra, the appellants’ affidavit is not probative and was properly stricken by the trial court.

2. Notwithstanding the non-probative nature of the affidavits, this court is obligated to consider the entire record in its review (Sullivan v. Henry, 160 Ga. App. 791, 798 (287 SE2d 652) (1982)), including the deposition of appellants’ expert. We have carefully reviewed the deposition and find no evidence that the deponent was measuring the physician appellees’ conduct against the general standard of care. References to the “acceptable standard of care,” the “standard of care relative to that issue,” the “standard of care,” or the “accepted standards” are not sufficient to contradict the appellees’ affidavits and cannot withstand the motion for summary judgment. Although the expert in the deposition expresses an opinion as to the “proper obstetrical standards,” individual views or opinions similarly cannot successfully contradict sufficient opposing affidavits. Simpson v. Dickson, 167 Ga. App. 344 (1) (306 SE2d 404) (1983). We cannot reverse the grant of summary judgment without valid affidavits or without unambiguous evidence that the requirements for a case of malpractice in this state have been met. If we determine otherwise, the prescribed procedures for establishing medical malpractice in this state would be rendered ineffectual.

Based upon our discussion herein, appellants’ enumeration of error based upon a violation of Northside Hospital’s local oxytocin policy is without merit, and therefore, the trial court’s grant of summary judgment was proper.

The dissent, while finding that questions for the jury remain, nevertheless does not directly confront the issue of whether the bare deposition testimony invokes the general standard of care as required by Georgia law.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., Banke, P. J., and Beasley, J., dissent.

Deen, Presiding Judge,

dissenting.

Reading Jackson v. Gershon, 251 Ga. 577, 579 (308 SE2d 164) (1983), a 4-3 case by the Supreme Court holding that the use of nomenclature or “magic words” in a medical expert’s affidavit as to improper treatment and standards utilized are unnecessary if substance is present in the affidavit and record, in conjunction with Hively v. Davis, 181 Ga. App. 733, 734 (353 SE2d 622) (1987), convinces me that the trial court erred in the grant of summary judgment. The latter cited case states that the omission of words such as, “care and skill exercised by the medical profession generally under similar conditions and like circumstances was not fatal to the affidavit.” (Emphasis supplied.)

Dr. Sherman testified that the treatment fell below accepted standards; that the action taken was not in the realm of acceptable medical judgment; that the woman should have been hospitalized and observed and not induced at the time she was; that the doctor failed to come to the hospital and examine the patient; and that the administration of IV oxytocin to induce labor in the patient should not have been done until the doctor’s examination was recorded on the labor and delivery record. Questions for the jury remain.

I am authorized to state that Presiding Judge Banke and Judge Beasley join in this dissent.

On Motion for Rehearing.

As stated in our original opinion, the expert’s affidavit submitted by appellants was properly stricken. The only remaining evidence submitted by appellants, the expert’s deposition, did not indicate the standard of care that was being used by the expert in evaluating the appellees’ conduct, while the affidavits submitted by appellees do clearly state their compliance with the requisite standard under Georgia law. Therefore, the appellants’ expert evidence is insufficient to counter the appellees’ affidavits and to withstand the motion for summary judgment.

Decided February 28, 1990

Rehearing denied March 30, 1990

Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, E. Graydon Shuford & Associates, E. Graydon Shuford, for appellants.

Allen & Ballard, Dennis A. Elisco, Hunter S. Allen, Jr., Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, for appellees.

Motion for rehearing denied.


author: McMurray, Presiding Judge.

text:
    A89A1688.
    MITCHELL v. THE STATE. ANDERSON v. THE STATE.
    A89A1689.
    (393 SE2d 274)
   McMurray, Presiding Judge.

Defendants Mitchell and Anderson were jointly indicted for trafficking in cocaine. The evidence adduced at a joint jury trial revealed the following:

Shortly before noon on August 15,1988, Agent Davis of the Georgia Bureau of Investigation (“GBI”) received information from “a confidential, reliable informant” that “three black males and a black female were in a Chevrolet Beretta . . .” automobile at a local motel; that, “a large amount of cocaine was observed in the car with these [people] and that one of the black males went to a motel room . . . with a portion of the cocaine. . . .” The informant identified the suspect vehicle’s Florida “tag number” and Agent Davis responded to the tip.

When Agent Davis arrived at the motel, he observed “a red Beretta vehicle with [the] same tag number that was described [by the confidential informant] parked in front of the registration desk at the office.” Defendant Anderson was in the suspect vehicle and another unidentified black male “was inside the registration office talking to the clerk.” Agent Davis discovered that the Beretta was a Florida rental car and he later summoned Detective Williams of the Statesboro Police Department for assistance. By the time Detective Williams arrived at the motel, the two suspects had left in the rented vehicle. A lookout for the Beretta was placed with officers of the Statesboro Police Department and, shortly thereafter, the vehicle was spotted and stopped. Agent Davis was summoned to the stop and, after arriving at the scene, he noticed that only defendant Anderson was at the car. Defendant Anderson’s driver’s license identified him as a resident of “Haynes City, Florida” and defendant Anderson informed the officers that “he was in that particular neighborhood looking for his uncle . . . Spencer.” Agent Davis was apprehensive that “Spencer” was the unidentified black male who had earlier accompanied defendant Anderson at the motel and Agent Davis was concerned that “Spencer” would alert the other suspects who had been observed by the confidential informant at the motel. Consequently, Agent Davis went back to the motel while other officers took defendant Anderson to the police station for questioning.

Agent Davis learned that the other two suspects had checked into a room at the motel and that the room was “registered to Vonnie McBride. . . .” Agent Davis and Detective Williams went to the motel room and defendant Mitchell answered the officers’ knocks. Ms. McBride was then summoned to the door and the officers informed the suspects of their “suspicions that there was cocaine in that room.” Ms. McBride was advised of her Miranda warnings (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) and she admitted “there [was] some crack cocaine in the room [and that she] and [defendant Mitchell were] in there smoking some crack.” The officers searched the suspects and found $664.88 in cash in defendant Mitchell’s back pocket. The officers also searched the motel room and found 10.2 grams of “crack” cocaine, “smoking devices” which are used to consume “crack” cocaine and paraphernalia which is used to separate or “cut” powdered cocaine.

Meanwhile, officers of the Statesboro Police Department discovered hidden in defendant Anderson’s underwear 97.2 grams of a substance which was 95 percent pure cocaine (92 grams of pure cocaine). After receiving his Miranda warnings, when questioned about the substance, defendant Anderson made the following statement:

“ ‘This past Saturday me and Spencer were together in Haynes City, Florida. I saw blank. He was driving the red Beretta. He told me his girlfriend or mother had rented it for him, I don’t remember which he said. He asked me if I had a driver’s license. He said he would pay me two hundred dollars to drive him to Georgia and come right back. We left that night. Spencer came along for the ride. We got to Statesboro this morning. Blank saw a girl and told me to stop the car. We went to her house. Blank handed me the package of cocaine and told me to hold it for him. I said no, I didn’t want to. He kept asking me to hold the package because he was fixing to get a motel with her and he didn’t want her to run off with the coc[aine]. I took it from him and laid it on the console. Spencer said to move it and give it back to blank, but I kept it because Blank said he wouldn’t be long. Blank and the girl was walking down the road and then I took them to the motel. Blank and the girl got out of the car and walked around the building. Spencer walked around there too, so he would know where to come back to. Me and Spencer left. I was going to see my cousin Robert Procter in Sardis, Georgia. Spencer didn’t want to go so I dropped him off a couple of blocks from the motel. I put the cocaine in my clothes after Spencer told me to move it. I was riding around looking for a bar when the patrolman pulled me over.[’]”

Later, defendant Mitchell, after receiving his Miranda warnings, was questioned, and he made the following statement: “ ‘We left Florida Friday night, my mama rented the car for me. I don’t have a license. I picked up [defendant Anderson] and Spencer. [Defendant Anderson] did the driving. We spent a couple of nights at some of Spencer’s people’s house in Byron, Georgia. We came to Statesboro this morning. We were just riding. I saw a girl on the street, I didn’t know her. I got her, I got out of the car and started talking to her. We ended up at the motel, then the police came. I don’t know anything about the cocaine.’ ”

A search of the red Beretta revealed 1.3 grams of marijuana, clothing which belonged to defendants Anderson and Mitchell and clothing which belonged to Ms. McBride. Defendants were found guilty of trafficking in cocaine. Defendant Mitchell now appeals in Case No. A89A1688 and defendant Anderson appeals in Case No. A89A1689. Held:

Case No. A89A1688

1. Defendant Mitchell first asserts the general grounds, arguing that the State failed to link him to possession of cocaine.

“Any person who knowingly . . . brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine. . . .” OCGA § 16-13-31 (a) (1). In the case sub judice, defendant Mitchell admitted that he had been traveling with defendant Anderson shortly before his arrest. There was also evidence that defendants Anderson and Mitchell were driving through Statesboro looking for areas where cocaine was available and where illegal drug use was prevalent. Further, defendant Anderson had over 97 grams of 95 percent pure powdered cocaine in the vehicle which defendant Mitchell’s mother had rented and defendant Mitchell was found with drug paraphernalia which is commonly used to separate or “cut” powdered cocaine. Defendant Mitchell was seen distributing “crack” cocaine on the day of his arrest and a quantity of cash was found in his pocket at the time of his arrest. Finally, defendant Mitchell was arrested after being found in a motel room with over 10 grams of “crack” cocaine. The evidence adduced at trial was sufficient to authorize a finding, beyond a reasonable doubt, that defendant Mitchell was an active participant in the possession of over 28 grams of cocaine so as to be a party to the crime of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Riley v. State, 191 Ga. App. 781 (1) (383 SE2d 172).

2. Next, defendant Mitchell contends the trial court erred in denying his motion to sever.

“The denial of severance is within the discretion of the trial court and will not be reversed unless it can be shown the joint trial constituted a denial of due process. Carroll v. State, 147 Ga. App. 332 (248 SE2d 702) (1978). In determining the severance issue, the trial court must consider the following: (1) Whether the joint trial will create confusion of the evidence and law applicable to each individual defendant; (2) Whether there is danger that evidence admitted against one defendant will be considered against another despite cautionary instructions by the court; (3) Whether the co-defendants will claim antagonistic defenses. Jones v. State, 243 Ga. 584, 586 (255 SE2d 702) (1979). See also Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975).” Martin v. State, 189 Ga. App. 483, 487 (3) (376 SE2d 888).

Defendant Mitchell first argues that the volume of evidence against defendant Anderson prejudiced his case and that defendant Anderson’s defense was antagonistic to his own. Defendant Mitchell does not specify how defendant Anderson’s defense was antagonistic, nor does he cite specific evidence admitted against defendant Anderson which prejudiced his case. Instead, he makes general reference of how actual possession of cocaine is necessary for a conviction under OCGA § 16-13-31 (a) (1) (A). In the context of this enumeration, we take this argument to mean that defendant Anderson’s physical possession of more than 28 grams of cocaine adversely affected defendant Mitchell’s defense, i.e., that he did not “know anything about the cocaine.”

“The burden is on the defendant requesting the severance to make a clear showing of prejudice. He must show more than a ‘possibility that a separate trial would give him a better chance of acquittal. . . .’ [Citations omitted.]” William W. Daniel’s Ga. Criminal Trial Practice, (1989 ed.) § 14-46, p. 416. In the case sub judice, defendant Mitchell has failed to demonstrate that evidence of defendant Anderson’s possession of cocaine would have been excluded at a separate trial. In fact, it is unlikely that such evidence would have been excluded. The defendants’ apprehensions and arrests were inseparably joined. The investigation which linked the defendants was initiated by information showing that defendants were in joint possession of cocaine. Further, other evidence indicated that defendants were involved in a common scheme to distribute the cocaine in the Statesboro area. Consequently, defendant Mitchell was not denied a fair trial based on evidence of defendant Anderson’s physical possession of cocaine. The trial court did not err in denying defendant Mitchell’s motion for severance on this ground.

Next, defendant Mitchell cites Bruton v. United States, 391 U. S. 123 (89 SC 1620, 20 LE2d 476), claiming that he was prejudiced by the admission of defendant Anderson’s statement. We disagree. “The Bruton rule prohibits the admission of evidence in a joint trial of a co-defendant’s confession implicating his fellow defendant where the co-defendant does not testify so as to be available for cross-examination. Hall v. State, 161 Ga. App. 521 (1) (289 SE2d 313) (1982).” Holloway v. State, 168 Ga. App. 294, 296 (4) (308 SE2d 641). There was no Bruton violation in the case sub judice. See Lunz v. State, 174 Ga. App. 893, 896 (2) (332 SE2d 37). Defendant Anderson testified at trial and was available for cross-examination.

Finally, defendant Mitchell contends that “the unprecedented reference to a separate indictment. . . against [defendant] Anderson without statutory notice of ‘similar crimes’ during trial with [him] made the return of an impartial and fair verdict impossible.” We have examined that portion of the trial transcript which defendant Mitchell cites in support of this argument and we find nothing to support the assertion that “a separate indictment . . . against [defendant] Anderson” was admitted into evidence at trial. Further, there is no argument or citation of authority to support this contention. Consequently, there remains nothing for review. We find no abuse of discretion in the denial of defendant Mitchell’s motion for severance.

3. Relying on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), defendant Mitchell moved for disqualification of the jury based upon the prosecuting attorney’s use of peremptory challenges against black prospective jurors. He now enumerates as error the denial of this motion.

Defendant has failed to make out a prima facie case of discrimination by showing the difference between the percentage of blacks on the panel and the twelve jurors that tried his case. See Stewart v. State, 190 Ga. App. 162 (1) (378 SE2d 387). However, even assuming defendant Mitchell did meet his initial burden, the record indicates that the prosecuting attorney’s use of peremptory strikes was sufficiently racially neutral. Stewart v. State, 190 Ga. App. 162 (1), supra. This enumeration is without merit.

4. Next, defendant Mitchell contends the trial court “erred in failing to adequately and properly instruct the jury on the material issue of actual possession as an essential element of the offense for which [he] was tried.” Defendant Mitchell further contends the trial court should have given his requested instruction “applicable to the issue of actual possession. ...” These contentions are without merit.

The record shows that the trial court properly and fully charged the jury on the essential elements of the crime charged. Further, actual possession of cocaine was neither charged in the indictment nor is it an essential element of the crime, trafficking in cocaine. Effective March 28, 1988, the General Assembly of the State of Georgia removed actual possession as an essential element of the crime. See Ga. L. 1988, p. 420, § 2.

5. Next, defendant Mitchell attacks the indictment.

The indictment charged both defendants Mitchell and Anderson with trafficking in cocaine on August 15, 1988, in that they “did knowingly bring into this state and be in control possession of 28 grams or more, but less than 200 grams, of cocaine and a mixture with purity of 10 percent or more of cocaine, as described in Schedule VI of the Georgia Controlled Substances Act. . . .”

First, defendant Mitchell complains that the State failed to present evidence “to support the allegation of the indictment regarding commission of the offense by transporting cocaine into this State.” This argument is without merit.

“In Henry v. State, 154 Ga. App. 120 (1) (267 SE2d 653), this court held that when an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence.” Chapman v. State, 173 Ga. App. 824 (2) (328 SE2d 425). In the case sub judice, inasmuch as the evidence showed that defendant Mitchell was guilty of trafficking in cocaine in one of the ways alleged in the indictment, i.e., defendant Mitchell was a party to the crime of possession of more than 28 grams of a cocaine mixture with a purity of 10 percent or more, there was no variance between the allegata and probata.

Next, defendant Mitchell argues that there was no proof of “actual ‘possession control’ of any cocaine as alleged in the alternative under the language of the indictment.” This argument is without merit. The indictment did not allege that defendant Mitchell had “actual” physical “ ‘possession control’ ” of cocaine; it charged that defendants Anderson and Mitchell committed the offense of trafficking in cocaine by “control possession” of the requisite amount of cocaine as provided in OCGA § 16-13-31 (a) (1). There was more than ample evidence to support the allegations of this indictment. See Division 1 of this opinion.

Finally, defendant Mitchell contends that the trial court erred in denying his motion in arrest of judgment because descriptive language of the indictment is inaccurate. More specifically, defendant Mitchell contends that “there exists no ‘Schedule VI of the Georgia Controlled Substances Act.’

It is true that no “Schedule VI” exists as part of Georgia’s Controlled Substances Act. However, no fatal error was generated by this flaw. At best, the mistake was surplusage which did not take away from the specific allegation that defendants were trafficking in cocaine in that they did unlawfully possess the requisite amount of the controlled substance. See Myers v. State, 143 Ga. App. 195 (2) (237 SE2d 662).

6. Defendant Mitchell contends the trial court erred in denying his motion for a mistrial after defendant Anderson impermissibly placed his character in issue.

Upon defendant Mitchell’s counsel’s cross-examination of defendant Anderson, the following transpired: “[Defendant Mitchell’s attorney] Q. Ever taken any drugs over there and delivered them to Alabama? [Defendant Anderson] A. No, sir. Has [defendant] Mitchell ever been caught in Florida with drugs before? Yes, sir. THE COURT: You can’t ask any questions, just respond to the questions. [Defendant Anderson] A. I’m sorry, I’m sorry. [Defendant Mitchell’s attorney]: Q. Based on the volunteered and totally unresponsive remark of this Defendant we now move for a mistrial. THE COURT. I will overrule your motion. Ladies and gentlemen, please do not pay any attention to that last statement that, unresponsive statement made by [defendant] Anderson.”

“[T]he complained of answer was elicited by defense counsel’s questions to the witness. Following the answer, curative instructions were given by the court. Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). Furthermore, the decision of whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508) (1981).” Buxton v. State, 253 Ga. 137, 139 (3) (317 SE2d 538). Under the circumstances of the case sub judice, we find no abuse of discretion. The trial court did not err in denying defendant Mitchell’s motion for a mistrial.

Case No. A89A1689

7. First, defendant Anderson asserts .the general grounds, arguing that the evidence was insufficient to support the verdict. We do not agree. Evidence showing that defendant Anderson had more than 28 grams of a powder which was more than 95% pure cocaine hidden in his underclothing was sufficient to authorize the jury’s finding that defendant Anderson was guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, supra.

Decided March 13, 1990

Rehearing denied March 30, 1990

Robert S. Lanier, Jr., for appellant (case no. A89A1688).

Francis W. Allen, for appellant (case no. A89A1689).

J. Lane Johnston, District Attorney, for appellee.

8. Defendant Anderson’s remaining contentions are virtually identical to the assertions of error raised by defendant Mitchell and addressed in Divisions 2 through 5 of this opinion. For the same reasons stated above, we find defendant Anderson’s remaining contentions of error to be without merit.

Judgments affirmed.

Carley, C. J., and Beasley, J., concur.

       The sequence of arguments in defendants’ briefs does not follow the order of the enumerations of error. In fact, defendants’ arguments do not flow or follow any logical pattern. Although such practice makes review extremely difficult and is a violation of Rule 15 (c) (1) of the Rules of the Court of Appeals of the State of Georgia, we shall address the contentions of error, avoiding the unnecessary task of redundancy where possible, as issues appear seriatim in the parties’ briefs. With regard to those enumerations of error which do not appear to be supported by citation of authority or argument, they are deemed abandoned pursuant to Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia. See Weeks v. State, 190 Ga. App. 373, 375 (2) (378 SE2d 895).


text:
    A89A1866.
    BROWN v. DEPARTMENT OF TRANSPORTATION.
    (393 SE2d 36)
   McMurray, Presiding Judge.

Larry A. Brown (plaintiff) brought an inverse condemnation action against the Department of Transportation, State of Georgia (“DOT”), seeking compensation for the alleged taking of a parking easement which was appurtenant to his business property. Plaintiff also sought compensation due to the purported “loss of access to his [business] premises. . . .” DOT denied liability and subsequently moved for summary judgment. The evidence and allegations, construed in a light which most favorably supports plaintiff’s claims, reveals the following:

Plaintiff owns a commercial building adjacent to a DOT road right-of-way in Bibb County, Georgia. He operates therein a dry cleaning and laundry business known as “Highland Cleaners.” Prior to 1987 the only vehicular parking available to Highland Cleaners was an area on the road right-of-way situated a few feet from the storefront of plaintiff’s business premises. This parking area was made available by virtue of a June 21, 1954, conveyance between the State Highway Department of Georgia, DOT’s predecessor in title, and a predecessor in title to plaintiff’s business property. The conveyance is evidenced in a “RIGHT OF WAY DEED” which provides, in pertinent part, as follows: “This grant and conveyance is expressly conditioned upon the curb being lowered at the curb line, as shown upon the attached plat, so as to provide vehicular access to the undersigned’s adjacent property shown upon said plat, and to the paving of the area between the curb line as shown and the inside edge of the sidewalk.”

In “about 1955 or 1956,” the condition of the “RIGHT OF WAY DEED” was met, i.e., the curb was lowered “so as to provide vehicular access to the undersigned’s adjacent property . . . ,” and the area in front of what is now Highland Cleaners was used for customer parking. This parking arrangement was maintained until 1987, when DOT constructed a raised curb over the road right-of-way in front of plaintiff’s business premises, cutting off convenient parking to Highland Cleaners and adversely affecting plaintiff’s retail sales. The trial court granted DOT’s motion for summary judgment and this appeal followed. Held:

Plaintiff contends the trial court erred in granting DOT’s motion for summary judgment, arguing that the 1954 transaction between DOT’s predecessor in title and his predecessor in title created an appurtenant parking easement which benefited his business property. On the other hand, DOT argues that the language of the “RIGHT OF WAY DEED” evidences, at best, a covenant which expired under the 20-year limitation period of OCGA § 44-5-60 (b).

The limitation period of OCGA § 44-5-60 (b) applies to restrictive covenants, not easements such as in the case sub judice. Executrix of Estate of Seamans v. True, 247 Ga. 721, 723 (4) (279 SE2d 447); Hendley v. Overstreet, 253 Ga. 136, 137 (318 SE2d 54). A restrictive covenant relates to a burden or “servitude” upon land, while an easement “relates more to the benefit conferred upon the dominant tenement.” George A. Pindar’s Ga. Real Estate Law, § 8-2, Vol. 1, p. 359 (3d ed.). Further, an easement runs with the land and differs from a restrictive covenant in that it only requires the servient tenant not to interfere with the reserved rights of the dominant owner. Murphey v. Harker, 115 Ga. 77, 82 (41 SE 585); Georgia Power Co. v. Leonard, 187 Ga. 608, 610 (2), 611 (1 SE2d 579). A restrictive covenant may or may not run with the land and it generally sets limits upon the use of the subject property. See George A. Pindar’s Ga. Real Estate Law, § 8-7, Vol. 1, p. 362 and §§ 19-177 to 19-198, Vol. 2, pp. 206-223 (3d ed.). With these opposing characteristics in mind, we turn to the pivotal issue in the case sub judice, whether the 1954 conveyance from plaintiff’s predecessor in title to the State Highway Department included the reservation of a parking easement.

“ ‘In determining whether an instrument grants an easement . . . , the crucial test is the intention of the parties, and the whole instrument must be looked to, and recitals in the instrument, subject matter, object, purpose, and nature of restrictions or limitations, if any, or the absence of such, and attendant facts and circumstances of the parties at the time of making the instrument are all to be considered. Code § 29-109 [now OCGA § 44-5-34]; Jackson v. Rogers, 205 Ga. 581 (54 SE2d 132), and cit.’ Danielsville &c. Tel. Co. v. Sanders, 209 Ga. 144, 145 (71 SE2d 226) (1952).” Dept. of Transp. v. Knight, 238 Ga. 225, 228 (232 SE2d 72). See George A. Pindar’s Ga. Real Estate Law, § 8-19, Vol. 1, p. 372 (3d ed.).

In the case sub judice, the object of the reservation in the “RIGHT OF WAY DEED” is clear, “to provide vehicular access to the undersigned’s adjacent property. . . .” It is therefore apparent that the author of this deed was more intent upon directing a benefit to the “adjacent property” than to placing a “restrictive” burden upon the newly acquired road right-of-way. From another perspective, it can be inferred from the evidence and allegations in the record that the State Highway Department was aware in 1954 that it was seeking the only available parking area to plaintiff’s predecessor in title’s business premises; that the taking of this land via condemnation would be time consuming and that the acquisition would be costly due to the adverse effect the taking would have upon the remaining business property. It can also be inferred that plaintiff’s predecessor in title did not then wish to give up his only parking area; that he was aware that such a loss would have a severe adverse effect upon the value of his business and that he was equally aware of the State’s power to take the land via condemnation. It can therefore be assumed that the parties entered into a mutually acceptable transaction whereby the State Highway Department obtained a right-of-way over the desired “strip” of land and that plaintiff’s predecessor in title avoided the loss in value to his business property by reserving a parking easement over the adjoining “strip” of land. If these circumstances prevail, it can easily be seen that the parties to the 1954 conveyance intended that the parking rights over the conveyed “strip” of land to continue with the “adjoining property,” thereby conferring an appurtenant easement in favor of the land which is now occupied by plaintiff. See Feckoury v. Askew, 244 Ga. 128 (259 SE2d 70). This question, for resolution by the trier of fact, remains in the trial court. However, it is sufficient to say that the undisputed evidence did not demand a verdict for DOT and that the trial court erred in granting DOT’s motion for summary judgment.

Decided March 14, 1990

Rehearing denied March 30, 1990.

Stewart R. Brown, for appellant.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison Kohler, Deputy Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beverly B. Martin, Assistant Attorney General, for appellee.

Judgment reversed.

Beasley, J., concurs. Carley, C. J., concurs in the judgment only.

       “ ‘[DOT], as movant for summary judgment, has the burden of establishing the absence of any genuine issue of material fact and of (its) right to recover as a matter of law. (Cit.) [Plaintiff], as the [party] opposing the motion, [is] entitled to all favorable inferences and the evidence is to be construed most strongly in [his] favor. (Cit.) “(A)ll the evidence adduced on said motion . . . must be construed most strongly against the movant.” ’ Ga. Health Care, Inc. v. Loeb, 151 Ga. App. 350 (1) (259 SE2d 734) (1979).” Hanover Ins. Co. v. Nelson Conveyor &c. Co., 159 Ga. App. 13, 14 (1) (282 SE2d 670).

       The evidentiary record is sparse and fails to include what, if any, interest plaintiff’s predecessor in title had to the property which is the subject of this dispute. Further, the “RIGHT OF WAY DEED” purports to convey a fee interest in a 44 foot “strip” of land, comprising “0.0404 Acres,” but it does not specifically describe the location of this property. Instead, the deed refers to and incorporates an April 7, 1954, plat to more particularly describe the “strip” of land. Unfortunately, there is no indication that the April 7, 1954, plat was properly introduced into evidence and made a part of the record. However, a March 1954 plat of “Baconsfield Park,” recorded in the Superior Court of Bibb County on December 22, 1954, is in the record and it appears to reflect the area of Highland Cleaners and DOT’s road right-of-way. Nonetheless, even a strained examination of this evidence does not conclusively reveal the relative rights and duties of the parties with regard to the disputed “strip” of land. It is from evidence of this and other such evidence that we find that plaintiff’s predecessor in title had a fee interest in the “strip” of land he conveyed to the State Highway Department; that the “strip” of land is situated directly in front of plaintiff’s business premises and that it formerly provided sufficient parking area for the adjacent business premises.

       In light of the above holding, it is unnecessary for this Court to address plaintiffs claim of a compensable “loss of access to his [business] premises. . . .”


author: Pope, Judge. Sognier, Judge,

text:
    A89A1987.
    CITY OF FAIRBURN v. COOK.
    (393 SE2d 70)
   Pope, Judge.

The City of Fairburn appeals from the December 1988 order of the Superior Court of Fulton County in which the trial court found that James Cook was entitled to recover the prejudgment interest previously awarded him in September 1986 and that all the City’s arguments why it was not responsible for the prejudgment interest award were adversely controlled by the doctrine of res judicata.

A partial review of the procedural history of the case sub judice is necessary in order to understand the nature of this appeal. Cook brought suit against the City and Atlanta & West Point Railroad (“Railroad”). In September 1986 the jury returned a verdict in Cook’s favor against the defendants for $2.5 million “to share equally.” In its judgment on the verdict, the trial court held the City and the Railroad jointly liable for the full amount, and because the $2.5 million verdict exceeded the amount of unliquidated damages ($1.95 million) claimed by Cook in his written notice made pursuant to OCGA § 51-12-14 (a), the trial court awarded Cook prejudgment interest in the amount of $1,089,221.94.

The City challenged the prejudgment interest award in its motion to set aside the verdict and the judgment, specifically asserting that it was not liable for prejudgment interest because the verdict against the City did not equal or exceed the amount of unliquidated damages claimed by Cook, as required by OCGA § 51-12-14. The basis for this claim was the City’s argument that the verdict was several, rather than joint (as the trial court had found), and thus the actual verdict against the City was for only $1.25 million (half the $2.5 million). Accordingly, the City asserted that because the verdict against it was $700,000 less than the unliquidated damages claimed by Cook, the award of prejudgment interest could not be supported as a matter of law.

On appeal to this court (City of Fairburn v. Cook, 188 Ga. App. 58 (372 SE2d 245) (1988)), however, the City presented only the argument that it was jointly liable with the Railroad, asserting that the jury verdict “to share equally” was illegally apportioned and thus a new trial on all issues was mandated. This court disagreed and upheld the verdict returned by the jury against the City. The court found, however, that the trial court had erred in entering judgment against the City for the full amount of the verdict, inasmuch as the jury had legally apportioned the verdict between the defendants by inserting the language “to share equally” after the verdict amount. The court also reversed the judgment as to the Railroad, finding the evidence was insufficient to support it.

Upon remittiturs being entered, the judgment and postjudgment interest amounts were paid, but the award of prejudgment interest was reserved by the trial court pursuant to a consent order which clearly reflected the parties’ intent not to resolve or otherwise waive issues involving the prejudgment interest award. Subsequently the trial court in its December 9, 1988, order found that the issues the City was raising in 1988 regarding its liability for the. prejudgment interest award had already been raised by the City in 1986, but that the City had failed to enumerate the alleged errors in its appeal to this court. Because the alleged errors involving the award of prejudgment interest in the September 1986 judgment were unappealed, the trial court found the City’s arguments were controlled by the doctrine of res judicata, and accordingly entered the award from which the City now appeals.

1. Initially, we must address Cook’s motion to dismiss the City’s appeal. Cook argues that pursuant to OCGA § 5-6-38, the prejudgment interest award was appealable within 30 days after the September 26, 1986, judgment was entered. Asserting that the December 9, 1988, order was not a “new” final judgment but merely a judgment on this court’s remittitur, Cook argues that the City’s appeal from the December 1988 order was untimely and must be dismissed under the mandate of OCGA § 5-6-48 (b).

In City of Fairburn, supra, this court vacated the judgment which had disregarded the verdict returned by the jury and directed the trial court to enter judgment against the City for the correct sum of $1.25 million. Upon remittitur, the trial court properly followed this court’s direction and entered judgment in Cook’s favor for the modified amount. The trial court then took under consideration the other aspects of the judgment, including the prejudgment interest award. The merits of the City’s argument concerning the prejudgment interest award are obvious: The jury returned a verdict which rendered the City liable for $1.25 million; that sum did not equal or exceed the $1.95 million in unliquidated damages claimed by Cook; thus, under OCGA § 51-12-14 (a), the verdict was insufficient to support the prejudgment interest awarded Cook by the trial court in September 1986. However, the trial court in its December 1988 order determined it was not necessary to reach the merits of the City’s arguments, finding that the issue was res judicata and ruling accordingly.

It is therefore apparent that the December 1988 judgment, based on the doctrine of res judicata, was premised on an issue different from any issue addressed by the trial court in the September 1986 judgment. Insofar as the application of the doctrine of res judicata to the prejudgment interest is concerned, the trial court’s December 1988 judgment “contained at l[e]ast something to appeal by either party, if there was any error in it. [Cit.]” West v. Dorsey, 167 Ga. App. 233, 235 (1) (305 SE2d 840) (1983), rev’d on other grounds, Dorsey v. West, 252 Ga. 92 (311 SE2d 816) (1984). We therefore find that the City timely filed its appeal from the December 1988 judgment pursuant to OCGA § 5-6-38, and Cook’s motion to dismiss this appeal is denied.

2. The remaining issue before this court is whether the trial court correctly concluded that the doctrine of res judicata should act as a bar to the consideration of all issues surrounding the award of prejudgment interest in this case. We find that it does not, and reverse.

Simply stated “ ‘(t)he doctrine of res judicata makes a prior judgment conclusive between the parties and their privies as to all matters put in issue or that might have been put in issue.’ [Cits].” Tandy Computer Leasing v. Bennett’s Svc. Co., 188 Ga. App. 594, 594-595 (373 SE2d 647) (1988). See also OCGA § 9-12-40. Thus, the trial court concluded that because the City “raised the question of its liability for the prejudgment interest in its motion for judgment notwithstanding the verdict [but] failed to enumerate [the trial] court’s denial of this particular ground of error to the appellate court, . . . that issue is now res judicata and is closed to further challenges.”

We agree that the City’s failure to assign error in the earlier appeal of this case forecloses it from mounting every possible challenge to the award, (for example, it could not now contend that notice was improper pursuant to OCGA § 51-12-14 (a)) but find that the trial court erred in refusing to consider any challenge to the award, specifically challenges arising solely and necessarily from this court’s decision on the previous appeal of this case.

As stated, supra, on appeal the City argued that it was jointly liable with the Railroad, asserting that the jury verdict “to share equally” was illegally apportioned and thus a new trial was mandated. This court, however, disagreed, finding that the jury had legally apportioned the verdict, but that the trial court had then erred by entering judgment for the full amount of the verdict against both defendants. Consequently, although it is true that the doctrine of res judicata forecloses the consideration not only of issues which were actually raised, but also issues which might have been raised, the trial court’s strict adherence to the doctrine of res judicata in this case requires the complaining party, here the City, not only to assert its arguments on appeal, but also to foresee that those arguments would be rejected by this court, and to anticipate this court’s specific findings so as to mount all challenges which might arise under every possible outcome of this case. Under these circumstances, the application of judicial principles such as are embodied in judicial doctrines such as res judicata must give way to avoid the unjust and unconscionable result which would otherwise obtain in the case at bar.

The trial court’s ruling here thus ignores the effect of our holding in the previous appeal of this case thereby allowing Cook to recover the entire amount of pre-judgment interest which was assessed against both the Railroad and the City, even though this court determined in the earlier appeal that 1) the evidence was insufficient to support the verdict and judgment rendered thereon against the defendant Railroad and 2) the trial court had erred in entering judgment against defendants for the full amount of the verdict, inasmuch as the jury had legally apportioned the verdict between the defendants. It is within the inherent power of this court to consider issues which follow as a natural consequence of its decisions on appeal, whether or not specifically enumerated as error. Likewise, the trial court has the authority and power to amend its judgments to effect the intendment of this court, whether or not specifically directed to do so by this court. “ ‘The trial court may amend a judgment to make it conform to the verdict, not only after the term in which it was rendered, but after the case has been affirmed by an appellate court. (Cits.)’ [Cits.]” Dismuke v. Gibson, 174 Ga. App. 546 (1) (330 SE2d 771) (1985). Thus, the trial court was authorized to consider, and should have considered, the effect of this court’s decision on the entire judgment, including the prejudgment interest award. Consequently, we reverse the order of the trial court finding that the issue of prejudgment interest was res judicata and direct that upon remand the trial court reverse the award of prejudgment interest, as it is clear that the award cannot stand inasmuch as, pursuant to the earlier appeal of this case, the judgment is now for an amount less than the sum claimed by Cook pursuant to OCGA § 51-12-14.

Judgment reversed and case remanded with direction.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Beasley and Cooper, JJ., concur. Banke, P. J., and Sognier, J., dissent.

Sognier, Judge,

dissenting.

I dissent because I would affirm the trial court’s December 1988 judgment awarding prejudgment interest to Cook and striking the City of Fairburn’s objections and defenses to that award on the basis that they were barred by the doctrine of res judicata.

The majority reverses the trial court’s judgment based on its conclusion that the doctrine of res judicata does not control the issues raised by the City. The majority does not deny that res judicata is applicable here; the majority does not deny that, properly applied, the doctrine of res judicata demands the affirmance of the trial court’s order. No attempt is made by the majority to distinguish the body of case law which compels the application here of res judicata. The majority simply concludes that the established law of this State “must give way” to avoid an “unjust and unconscionable result.”

In view of the facts of this case, it is difficult to understand why the majority feels compelled to ignore the law in this instance. Because the doctrine of res judicata is applied as to all matters put in issue or which might have been put in issue, OCGA § 9-12-40, there have been parties far more deserving of sympathy than the City here. After all, it is uncontroverted that the City was aware the prejudgment interest was objectionable as soon as it was awarded; clearly, the City had every opportunity to litigate the matter below and indeed did argue its objection persuasively in its motions and briefs to the trial court; unquestionably, the City could have raised its objection in this court. While I do not expect parties on appeal to anticipate every possible holding this court might reach, I cannot agree with the majority that it was asking too much of the City to expect it to foresee that this court might uphold the jury verdict and its liability for $1.25 million. But, even assuming that is asking too much, why then did the City not raise the matter in its motion for rehearing?

Decided March 16, 1990

Rehearing denied March 30, 1990

Eidson & Talmadge, James A. Eidson, John E. Talmadge, Glaze, Fincher & Bray, Kirby A. Glaze, Laurel E. Henderson, for appellant.

Scoggins, Ivy & Goodman, Charles Ivy, Joseph C. Chancey, Heyman & Sizemore, William B. Brown, for appellee.

Gambrell, Clarke, Anderson & Stoltz, Seaton D. Purdom, amicus curiae.

Possibly the majority feels that the application of res judicata here exacts too hefty a penalty from the City of Fairburn. The result may sound “unconscionable” when $1,089,221.94 is involved; perhaps res judicata would not appear so “unjust” were only $1,089.22 in issue. But res judicata is the law of this State. Applying it without regard to the amount involved or the party appealing promotes stability and eliminates any possibility of favoritism or prejudice, dangers inherent in the failure to apply established law equably. If we excuse the City’s liability because it failed to raise the proper objection in a timely fashion, does that mean this court will excuse the next erring party? Or will we return to strict adherence to the law? Will we apply the exception when the appealing party is a municipality, or is it applicable only where the money involved exceeds a million dollars?

By doing what it considers to be justice to the City, the majority is doing injustice to the law. Therefore, I must dissent.

I am authorized to state that Presiding Judge Banke joins in this dissent.