text:
    A89A0024.
    LITTLEJOHN v. THE STATE.
    (383 SE2d 332)
   Sognier, Judge.

Charles E. Littlejohn brings this pro se appeal from his misdemeanor conviction for criminal trespass and sentence under the First Offender Act, OCGA § 42-8-60.

1. The State’s motion to dismiss the appeal on the ground that the record submitted by the State in response to a prior motion filed by appellant was erroneously docketed as the record in this appeal is denied, as this court has in the instant record all documents and transcripts designated by appellant for which costs have been paid below, and the record is sufficient to afford a full and fair review of appellant’s enumerations. See generally Foster v. State, 178 Ga. App. 478, 481 (2) (343 SE2d 745) (1986).

2. Appellant first enumerates the general grounds. Construed to uphold the jury verdict, the record reveals that on Saturday, May 11, 1985 appellant received a collection agency letter regarding an unpaid bill from Sandy Springs Internal Medicine, P.C. (the Clinic). The bill was for treatment of a “Chuck Littlejohn,” but the letter was sent to appellant in error. Appellant testified that he became very upset upon receiving this letter, and attempted to contact the Clinic and the physicians who practiced there, and ultimately succeeded in reaching Dr. Sandy Carter by telephone at approximately 10:00 p.m. Carter testified that appellant was very irate and threatened to phone Carter re*peatedly until the matter was resolved, and that Carter told appellant he would have to call Bonnie Lindsay, the Clinic office manager, on Monday to settle the matter. Lindsay testified that on the following Monday, appellant telephoned her and others at the Clinic and spoke in such a manner that she became frightened and called the police. Two Fulton County police officers arrived and were present when appellant entered the Clinic. All the witnesses who were present at this time testified that appellant became irrational and abusive and was shouting repeatedly at Lindsay. In response to the officers’ inquiry, Lindsay, who was in charge of the office, twice asked appellant to leave, but he continued to shout at her and the others in the room, repeatedly asking whether they were “in fear of their lives.” The officers then arrested appellant for criminal trespass. Appellant testified that he only wanted to resolve the issue of the erroneous letter, and that he had agreed to leave when he was arrested. We find this evidence sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellant’s enumeration concerning the constitutionality of OCGA § 16-7-21 (b) (3) is controlled adversely to him by Daniel v. State, 231 Ga. 270 (201 SE2d 393) (1973).

. 4. Appellant’s challenge to the legality of his arrest is without merit, as a police, officer may make an arrest without a warrant when the offense is committed in his presence. OCGA § 17-4-20 (a); Marsh v. State, 182 Ga. App. 892, 893 (357 SE2d 325) (1987).

5. We also reject appellant’s contention that the evidence demanded a finding of entrapment. Upon review of the transcript we find no evidence that the police officers at the scene induced or solicited appellant to remain on the Clinic premises after being requested to leave. See OCGA § 16-3-25; see generally Strobhert v. State, 184 Ga. App. 615, 616-617 (1) (362 SE2d 99) (1987).

6. Appellant’s enumeration concerning the adequacy of the charge conference held by the tried court presents nothing for this court to review because no objection was made below, and thus there is no ruling for this court to address. See Cooper v. State, 188 Ga. App. 297-298 (1) (372 SE2d 679) (1988).

7. In two enumerations of error appellant raises the issue of ineffective assistance of counsel. To prevail on such a claim, appellant must show (1) that his counsel’s performance was deficient, and (2) that this deficient performance prejudiced his defense in that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial would have been different. Foote v. State, 188 Ga. App. 304, 305 (372 SE2d 843) (1988). Appellant has identified no evidence sufficient to show either deficient performance or prejudice, and our review of the available record discloses no such error.

8. Appellant next contends his sentence consisting of twelve months probation and a $600 fine was excessive because under the First Offender Act a fine cannot be imposed. This issue previously has been decided adversely to appellant. Dailey v. State, 136 Ga. App. 866, 867 (4) (222 SE2d 682) (1975).

9. We have reviewed appellant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

On Motion for Rehearing.

In his motion for rehearing appellant now contends, although he did not raise this issue in his prior briefs, that his sentence was excessive because the amount of community service he was ordered to perform was in excess of the statutory requirements. We agree with appellant that a requirement of 320 hours of community service was excessive, as OCGA § 42-8-72 (b) (1) provides that for misdemeanors the trial court may order the performance of “not less than 20 hours nor more than 250 hours” of community service. Accordingly, the portion of appellant’s sentence imposing a community service requirement is vacated and remanded for resentencing in accordance with OCGA § 42-8-72 (b) (1).

Motion for rehearing denied.

Decided May 25, 1989

Rehearing denied June 8, 1989

Charles Littlejohn, pro se.

James L. Webb, Solicitor, Helen A. Roan, E. Duane Cooper, Assistant Solicitors, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A0256.
    ROGERS v. THE STATE.
    (383 SE2d 331)
   McMurray, Presiding Judge.

Defendant Rogers appeals his conviction of the offense of aggravated assault (assault with intent to rape). Held:

1. Defendant’s first enumeration of error contends “[t]he trial court erred in denying Defendant’s motion for a directed verdict of acquittal. . . .” However, our review of the record and transcript fails to reveal any motion for directed verdict of acquittal by defendant. This court cannot consider matters raised for the first time on appeal. Denton v. State, 186 Ga. App. 864, 865 (3) (368 SE2d 811); Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796); Buckner v. State, 186 Ga. App. 376 (367 SE2d 277); Smith v. State, 186 Ga. App. 303, 311 (5) (367 SE2d 573). See also Neel v. State, 140 Ga. App. 691, 692 (3) (231 SE2d 394), overruled on other grounds, Baker v. State, 245 Ga. 657, 665 (5) (266 SE2d 477).

2. Defendant contends the trial court erred in sentencing him for presenting a defense rather than for the crime of which he was convicted. This contention is predicated on the trial court’s comment during the sentencing hearing that a “goodly portion” of defendant’s sentence was for his unsuccessful attempt (at trial) to incriminate the victim.

First, we note that the sentence imposed upon defendant of ten years was within the parameters prescribed by statute and thus ordinarily will not be reviewed by the appellate courts. Monroe v. State, 250 Ga. 30, 36 (7) (295 SE2d 512); Stephens v. State, 185 Ga. App. 546, 547 (3) (365 SE2d 136); Pendleton v. State, 184 Ga. App. 358, 360 (4) (361 SE2d 663). Additionally, we disagree with defendant’s interpretation of the trial court’s comment and do not view it as suggesting any punishment of defendant for exercising his right to present a defense. Instead, we view the trial court’s remark as a comment that in sentencing defendant, the conduct and attitude of defendant as shown by the evidence developed at trial would be considered. “In determining what sentence to impose upon a defendant, a trial court may consider any evidence that was properly admitted during the guilt-innocence phase of the trial. Dorsey v. Willis, 242 Ga. 316 (249 SE2d 28) (1978).” Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592). See also Hiers v. State, 179 Ga. App. 181 (2) (345 SE2d 900). Also, in reaching the sentencing decision the trial court may also consider the conduct and attitude of defendant observed during trial. Ingram v. State, 134 Ga. App. 935, 939 (8), 940 (216 SE2d 608). This enumeration of error is without merit.

Decided May 22, 1989

Rehearing denied June 8, 1989.

David A. Cook, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

3. Defendant’s final enumeration of error raises an issue as to ineffective assistance of trial counsel. Defendant’s appellate counsel was retained following the filing of the notice of appeal. Thus, pursuant to Smith v. State, 255 Ga. 654 (341 SE2d 5), the case sub judice must be remanded to the trial court for a hearing concerning the claim of ineffective assistance of counsel. We affirm defendant’s conviction and sentence and “remand the case to the trial court for a hearing and appropriate findings concerning only the issue of ineffectiveness of counsel. If, after that hearing, any further review of this issue is sought, the appropriate appellate procedure must be followed. See Martin v. State, 185 Ga. App. 145, 147 (363 SE2d 765) (1987).” Dawson v. State, 188 Ga. App. 378 (373 SE2d 857).

Judgment affirmed as to conviction and sentence and case remanded with direction.

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


author: Birdsong, Judge.

text:
    A89A0365.
    DUVAL et al. v. KIDDER.
    (383 SE2d 356)
   Birdsong, Judge.

This is an action for breach of contract against the seller of a house, Metta Kidder, filed by the purchasers Robert S. Duval and Beverly Duval. The complaint alleged a defect in the septic tanks, which defect the purchasers apparently discovered upon occupancy.

The Duvals’ complaint asserts that the seller (Kidder) assured them that “the property was in reasonably satisfactory condition.” Further, the plaintiffs Duval asserted that they had “inspected [the] property.” The case was disposed of below by the grant of summary judgment to the seller, Kidder, on grounds inter alia that the contract of sale expressly called for prior inspection of the sewage and plumbing system by the purchasers and written notification to the seller of the discovery of a defect; further, that the contract constituted the entire agreement between the parties and no verbal agreements had been made. The plaintiffs appeal. Held:

The appellants sued for breach of contract but have shown none, except their own in failing to properly inspect. They are not asserting that a verbal “agreement” was made. They assert they inspected the property, which the contract expressly required them to do, but they give no evidence as to what sort of inspection they conducted and why they could not reasonably have discovered that sewage “backed up” or “percolated” in the plumbing system.

In response to the defendant Kidder’s motion for summary judgment, the buyers Duval say they have raised up the issue of “passive concealment” under Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141), but in fact they do not allege that Kidder “passively” concealed anything. The cause of a defect might have been latent because the septic tanks were buried in the ground, but for all that is shown the disfunction arising out of the defect was readily apparent. And the fact alone that the septic tanks were buried does not answer or controvert the buyers’ clear duty to reasonably inspect and discover a defect under the contract, if they could reasonably have discovered the disfunction. After they purchased the property, they did discover (apparently by simple observation) that the sewage system was not working. No reason appears why they could not have discovered this fact by simple observation upon a prudent inspection.

What appellants do allege, in response to Kidder’s motion for summary judgment, is actual fraud in that Kidder made actual representations that she had had no problem with the sewage system, and that the septic tank was of 500 gallon capacity and was “legal” and adequate. Yet, they present no competent evidence that these representations were false and that Kidder knew or should have known it. Their attorney, in a pleading entitled “Material Facts Where There is a Genuine Issue to be Tried,” asserts that upon excavating the septic tank, the plaintiffs Duval discovered it was not of 500 gallon capacity, and was not adequate, legal, or licensed. However, these mere assertions in a pleading by counsel are not competent evidence and are not admissible as evidence. See Clements v. Hendi, 182 Ga. App. 118 (354 SE2d 700) and Glenn v. MARTA, 158 Ga. App. 98 (279 SE2d 481). Sherwood v. Boshears, 157 Ga. App. 542 (278 SE2d 124).

In fact, even liberally construing the pleadings as having properly raised the issue of fraud, or if we deem it properly raised because it was tried and heard (OCGA § 9-11-15 (a) (b)), there is no evidence whatever that the sewage system was defective. Kidder told appellants she had had no problems with it before they purchased the house. The appellants have not shown that she did, or should have discovered any.

Decided June 8, 1989.

Martin S. Jacket, for appellants.

Lovett Bennett, Jr., for appellee.

No genuine issue of fact has been raised by appellants so as to prove breach of contract or passive concealment or actual or constructive fraud. Even if an issue of fact had been raised as to the disfunction and Kidder’s knowledge of it, the appellants show no evidence that they could not reasonably have discovered the disfunction upon inspection. And, according to the classic laws of fraud, even if Kidder had knowingly misrepresented the fact, the appellants would still have to show the mixed propositions that they were justified in relying upon her representations; that they exercised the reasonable diligence required of everyone to discover misrepresentations; and that they complied with their own contractual duty to inspect or were excused from it.

The trial court was perfectly correct to grant judgment to Kidder.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    A89A0628.
    ABERCROMBIE et al. v. MILLER et al.
    (383 SE2d 358)
   Carley, Chief Judge.

When appellant-defendants failed to appear for trial, their answer was stricken and a default judgment was entered in favor of appellee-plaintiffs. Appellants then filed a motion, seeking the grant of a new trial or the setting aside of the default judgment. Appellants’ motion was based upon their alleged lack of notice of the trial. Appellants offered evidence in support of their motion and appellees submitted evidence in opposition. The trial court, after conducting a hearing, denied the motion and appellants appeal directly from that order.

1. “In the present case, appellants’ motion was not based upon a lack of notice appearing on the face of the record. Appellants relied upon extrinsic evidence in the form of numerous affidavits to demonstrate their alleged lack of sufficient notice. Thus, appellants’ ‘claim is in actuality one of “some extrinsic defect which does not appear on the face of the record or pleadings,” and therefore the proper means of attack is a motion for new trial. [Cit.]’ [Cit.] Because appellants seek direct appellate review of a ruling on what is properly denominated a motion for new trial and their notice of appeal from the denial of such motion was not untimely, this court has jurisdiction to entertain the appeal pursuant to OCGA § 5-6-34. [Cit.]” Hill v. Bailey, 187 Ga. App. 413, 415 (1) (370 SE2d 520) (1988).

Decided June 8, 1989

Edwin Marger, Philip H. Weener, for appellants.

Martin D. Chitwood, Craig G. Harley, for appellees.

2. Appellants concede that they had notice of the actual date of the trial of the case. In the affidavits submitted in support of their motion, appellants urged only that they had been misled as to the position of the case on the trial calendar. According to appellants, the secretary for appellees’ counsel had informed them that the case was seventh, rather than fifth, on the trial calendar. There is considerable doubt whether appellants’ receipt of such misinformation would even state a meritorious reason for the granting of a new trial. See Stamm & Co. v. Boaz Spinning Co., 129 Ga. App. 779, 780 (2) (201 SE2d 480) (1973). However, even assuming that this proffered excuse would otherwise have merit, appellants’ affidavits were contradicted by the affidavit of the secretary for appellees’ counsel. In her affidavit, she averred that, in response to appellants’ telephone inquiry, she had informed them that the case was fifth on the trial calendar. Moreover, appellants’ former attorney testified that, prior to the date of the scheduled trial, he had informed them that he “certainly expected the matter was at risk of being reached. In other words, they weren’t so far down [the calendar] that they couldn’t worry about it, and certainly that they needed to get a lawyer or needed to do something to protect their interest about it.” Accordingly, the trial court was clearly authorized to find that appellants had sufficient prior notice of the trial of the case but that, due to their own failure to exercise due diligence, they did not appear. See generally Rosenberg v. Mossman, 140 Ga. App. 694, 695 (2) (231 SE2d 417) (1976). The trial court did not err in denying appellants’ motion for new trial.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0780.
    WALKER et al. v. HOOVER.
    (383 SE2d 208)
   Birdsong, Judge.

This is an appeal from the trial court’s order granting summary judgment to appellee. Appellee’s motion for summary judgment was based upon belated service of process after expiration of the statute of limitation and the doctrine of laches.

Appellants/plaintiffs and appellee/defendant were involved in an automobile collision on January 6, 1986. At that time appellee provided the police investigator with his correct name, home address, and phone number, which were accurately recorded in the resulting police accident report. Appellee continued to live at the same address, located in Clayton County, and continued to have the same telephone number as appears on the accident report.

On December 17, 1987, appellant filed the instant complaint, seeking damages for personal injuries sustained in the collision in Henry County. On December 22, 1987, Captain Gilmer of the Henry County Sheriff’s Department marked on the return of service that after a diligent search the appellee was “not to be found in the jurisdiction of this Court.” The two-year statute of limitation expired the first week in January 1988, OCGA § 9-3-33, before service was accomplished. Over a month later, on February 15, 1988, appellant’s attorney wrote to the Sheriff of Henry County confirming that appellee resided at the address shown on the complaint and suggesting service be attempted at night. On February 22,1988, Deputy Sheriff Maddox of the Henry County Sheriff’s Department marked on another return of service that after diligent search appellee was “not to be found in the jurisdiction of this Court.” At some point before March 7, 1988, appellant’s counsel learned from the sheriff’s office that appellee in fact resided in Clayton County and requested return of the complaint so it could be served in Clayton County. Appellee was served with process on April 5, 1988, approximately three months after expiration of the statute of limitation.

In granting appellee’s motion for summary judgment, the trial court made detailed findings of fact and conclusions of law, including the finding that appellee “has neither concealed his whereabouts nor avoided service of process at any time regarding this lawsuit.” Held:

In McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132), we stated: “The complaint was filed near the expiration of the period provided by the applicable statute of limitation but service of process did not occur within the five days allowed by [OCGA § 9-11-4 (c)] . . . nor within the period of the statute of limitation. Whether defendant’s motion to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether the plaintiff has shown that he acted in a reasonable and diligent manner in attempting to assure that a proper service was made as quickly as possible.” Plaintiff must carry the burden to show diligent service. Miller v. Hands, 188 Ga. App. 256, 257 (372 SE2d 657); Daughtry v. Cohen, 187 Ga. App. 253, 254 (370 SE2d 18); Jarmon v. Murphy, 164 Ga. App. 763 (298 SE2d 510). Further, “the trial court’s exercise of . . . discretion in these matters will not be overturned on appeal, unless it has been actually abused and cannot be supported as a matter of law.” Varricchio v. Johnson, 188 Ga. App. 144, 146 (372 SE2d 445); Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138).

Decided June 8, 1989.

Jerry B. Hatcher, for appellants.

Fain, Major & Wiley, Thomas E. Brennan, for appellee.

Although the plaintiff/appellant apparently relies on alleged misinformation from postal authorities and the failure of the sheriffs department to tell her in which county the defendant resided, the plaintiff/appellant was obligated to ascertain this information before filing suit. See Jarmon v. Murphy, supra; Cheek v. Norton, 106 Ga. App. 280, 285 (126 SE2d 816). Accordingly, she cannot excuse her lack of diligence by attempting to place responsibility on others. Further, assuming arguendo that her failure to bring this action in the proper county could be excused, the receipt of the sheriffs first return of service advising that the defendant could not be found within the court’s jurisdiction “should have put [her] on notice and inspired [her], through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” Roberts v. Bienert, 183 Ga. App. 751, 752 (360 SE2d 25). Although the plaintiff/appellant surely knew that the expiration of the period of limitation was rapidly approaching, the record does not disclose that she attempted to perfect service in a diligent and reasonable manner. See Forsyth v. Brazils, supra.

Appellant’s brief contained certain assertions of fact not supported by evidence of record. We cannot consider such bare assertions on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223). On appeal this court is bound to construe the evidence in support of the judgment. Locke v. Vonalt, 189 Ga. App. 783 (377 SE2d 696); McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777). Applying these principles, we find that the trial judge did not abuse his discretion.

Appellant’s other enumerations of error are without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A0335.
    DIXON et al. v. COOK BANKING COMPANY.
    (383 SE2d 337)
   Deen, Presiding Judge.

On July 24,1982, J. M. Dixon and his son, Ferrell Dixon, signed a promissory note in favor of the appellee in the amount of $13,000. As the younger Dixon’s indebtedness increased, the father became unwilling to be responsible for any further indebtedness and on January 10, 1983, signed a “Letter of Guaranty” promising to pay $13,000 against his son’s credit line or outstanding notes. On September 15, 1986, appellants executed a promissory note in favor of the appellee in the amount of $20,000, which was due on March 14, 1987, and was secured by a deed to secure debt. The security deed contained the following provision: “Said note is a master note and balances outstanding will depend on draws made and payments applied,” and it also contained a “future advances” clause seeming any other indebtedness then or thereafter becoming due. Three draws were made upon the note.

After Ferrell Dixon filed for bankruptcy in 1987, the bank called upon J. M. to honor his $13,000 guaranty and also sought to recover from him other sums owed by his son. Appellant’s house note was also due at this time, and a series of negotiations commenced as to the amount that J. M. Dixon owed appellee. J. M. disputed the amount claimed by the bank and approached another lender. On October 8,

1987, an employee of another bank came to Cook Banking Company with a check to pay off the Dixons’ home loan. The bank refused to accept it, and shortly thereafter appellants filed suit charging the bank with abusive litigation, praying for cancellation of their home mortgage, and seeking damages. The bank accepted payment, rendered a satisfied promissory note, and cancelled the appellants’ deed to secure debt.

In his order ruling upon the various motions for summary judgment, the trial court found that the Dixons’ house loan constituted a “revolving loan account” as defined in OCGA § 44-14-3 (a) (6), and that they had no cause of action against appellee for abusive litigation, unliquidated damages, punitive damages, or attorney fees because they did not give the bank a written demand for cancellation of the deed to secure debt or notice of their desire to cancel the loan arrangement established by their note and deed to secure debt, as required under OCGA § 44-14-3 (b) (1) and Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337 (306 SE2d 397) (1983). The court later considered the stubborn litigiousness claim asserted in Count III of the complaint (for putting appellants to unnecessary trouble and expense in having to file suit to obtain a cancelled deed to secure debt and a satisfied note), and granted summary judgment in favor of the bank. The Dixons appeal.

1. As the only relief appellants prayed for in Count I of their complaint was that their deed to secure debt and promissory note be cancelled and satisfied of record, and appellee did this shortly after suit was filed, the trial court did not err in granting summary judgment as to this count.

2. Under OCGA § 44-14-3 (a) (6), “ ‘[Revolving loan account’ means an arrangement between a lender and a debtor for the creation of debt pursuant to an agreement secured by an instrument and under which: (A) The lender may permit the debtor to create debt from time to time,” the unpaid balances of the principal and various charges are debited to an account, the loan finance charge is computed periodically, the debtor agrees to repay the debt and finance charges in accordance with a written agreement, and the limitation of the amount of the debt is stated on the face of the instrument and is deemed to be written notice of the maximum amount secured by the instrument. Under subsection (b) (1) the debt incurred under a revolving loan account “shall be considered to be ‘paid in full’ only when the entire indebtedness including accrued finance charges has been paid and the lender or debtor has notified the other party to the agreement in writing that he wishes to terminate the agreement pursuant to its terms.” (Emphasis supplied.) The trial court, after examining the document in question, correctly determined that it was a revolving loan account. Appellee’s claim that it raised a viable defense to the claim that it wrongly refused to cancel the deed to secure debt and the promissory note was correctly accepted by the trial court because appellants made no showing that they notified appellee in writing that they wished to terminate their line of credit at the time that payment was tendered.

3. As the trial court correctly granted summary judgment in favor of the bank, Counts II and III of appellant’s complaint alleging abusive litigation and stubborn litigiousness must fail.

4. We find no error in the trial court’s grant of summary judgment in favor of appellee or in requiring the case to proceed to trial on appellee’s counterclaim. Appellants have asserted no reasons other than those set forth above as to why the court below erred in requiring the counterclaim to be tried.

Judgment affirmed.

Birdsong, J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

In Division 3, the majority affirms the grant of summary judgment to appellee on the allegations of abusive litigation and stubborn litigiousness on the ground that summary judgment in favor of appellee was appropriate on Count I of appellants’ complaint. However, “a favorable disposition is not always necessary in order to pursue a Yost [v. Torok, 256 Ga. 92 (344 SE2d 414) (1986)] claim [for abusive litigation].” Efstathiou v. Saunders, 189 Ga. App. 470 (3) (376 SE2d 413) (1988). I concur in the affirmance of summary judgment to appellee on the abusive litigation allegation because the allegation is based upon actions of appellee prior to the commencement of the civil proceeding and therefore is not viable under Yost. See Division 14.1 concur in the judgment only in the affirmance of summary judgment to appellee on the allegation of stubborn litigiousness.

Decided May 31, 1989

Rehearing denied June 9, 1989

Smith & Harrington, Will Ed Smith, for appellants.

W. Dennis Mullís, for appellee.


author: Beasley, Judge.

text:
    A89A0476.
    STOLZ v. SHULMAN.
    (383 SE2d 559)
   Beasley, Judge.

Defendant Stolz appeals from the judgment entered on a jury’s verdict and from the denial of his motion for new trial. The dispute between attorney Stolz and his former partner Warren Shulman resulted from the ending of their partnership and the later receipt by Stolz of contingency fees totaling $1,405,063.83 (net) primarily from the recovery in a tort case reported at Ford Motor Co. v. Stubblefield, 171 Ga. App. 331 (319 SE2d 470) (1984), and two other cases. Shulman contends he is entitled to 20 percent of those fees.

Stolz, a former judge on this court, met Shulman through his father, Arnold Shulman, who had also served on this court. In June of 1979 they formed Stolz & Shulman, a general partnership for the practice of law. The agreement forming the partnership was oral and was that there would be an equal division of profits and expenses. They would put into the partnership all of their pending cases. The intent was that Shulman, because of his extensive business contacts, would bring in the business which Stolz would primarily service. At the time the partnership was originally formed, Stolz brought into the partnership two cases. One was Stubblefield and involved wrongful death as a result of a Ford Pinto accident.

The partners practiced as agreed until January 1981 when Loveless joined the firm as a partner and the firm became Stolz, Shulman & Loveless, the predecessor firm thereby dissolving. Harwell v. Cowan, 175 Ga. 33 (1) (165 SE 19) (1932); Stone v. First Nat. Bank &c., 117 Ga. App. 802, 803 (3) (162 SE2d 217) (1968); see former OCGA §§ 14-8-24 & 14-8-90. Loveless and Stolz stated that this partnership operated as had the predecessor, i.e., everything went into the pot and all, including the liabilities, was shared one-third each. The only disagreement voiced by Shulman was a statement made in his affidavit on summary judgment motions that the contingency fee cases of Stolz and Shulman (fees at issue) did not go into the new partnership pot. During 1981, Shulman ran for Mayor of Atlanta with the approval of Stolz and Loveless. In June 1981, Loveless left the firm and agreed with Stolz and Shulman that he would leave with what he brought and they would assume all of the debts and all of the assets of the remaining firm. Stolz and Shulman reformed the firm pursuant to their original oral understanding.

In November 1982 Shulman decided to leave the practice of law and devote his full attention to his business interests. Shulman acknowledged that he did no work on the two contingency cases which Stolz brought in and that the one contingency case which Shulman brought in was primarily worked on by Stolz or associates in the firm. His contention is that while he was a partner he was entitled to 50 percent of the profits from any such case but that when he left the firm, he gave up 30 percent out of a sense of fairness and a verbal agreement that Shulman would leave all cases and all his business contacts in return for 20 percent of the profits.

Stolz acknowledged that there was an oral agreement ending the firm but disagreed as to its terms. Although he acknowledged that he agreed to buy certain fixtures and physical assets from Shulman and to pay him his portion of outstanding receivables, Stolz said the remainder of the agreement was that he would assume all outstanding liabilities and retain all outstanding assets of the firm, and that there was no discussion of and no agreement as to “contingent fees” as a category separate from “assets” or “liabilities.”

1. The first enumeration objects to the giving of Shulman’s Request to Charge 22, which dealt with the tax consequences if Stolz should have to pay a portion of the fees to Shulman, Stolz already having paid income tax on the full amount.

A portion of the argument presented here is premised on “plaintiffs claim for an accounting.” Although such a claim was added to the complaint by plaintiffs second amendment, it was deleted by the third amendment and was not involved in the trial of the case.

We must first consider how the evidence to which the requested charge related entered the case. During the opening statement for defendant Stolz, counsel said: “I’m going to ask Mr. Stolz ... to tell you what went with that money. And you will see he’s not a greedy man or a selfish man. . . . [H]e shared that fee with people who worked on it. . . . [I]f he thought he had owed this man any part of that, he surely would have paid it to him because otherwise that money would have gone to Uncle Sam, in taxes. And we’ll show . . . that he paid an enormous amount of it out to the IRS . . . .” No reference to this type of evidence had been made during plaintiffs opening statement.

During cross-examination of plaintiff, defendant asked about his business interests. Plaintiff objected on the ground that the present financial conditions of the parties (i.e., Shulman’s financial need for money and Stolz’ ability to pay it) were “absolutely irrelevant” and the court sustained this objection.

Calling Stolz for purposes of cross-examination during plaintiff’s case in chief, plaintiff asked Stolz if any bonuses were paid to the people who had actually worked on the Stubblefield case and about expenses incurred on it. No objection was made, apparently due to Stolz’ intention to introduce evidence of the taxes he paid on the recovery, which evidence he presented during his direct examination. In fact he explained where all of the fee went, including the purchase of cars, a house, and a European vacation.

Prior to Stolz’ explanation, the jury was excused, a proffer was made of the evidence because of Shulman’s objection as to relevancy. Stolz argued that the evidence did not go to present financial condition and did not prejudice either side but instead showed Stolz’ state of mind vis-a-vis his understanding of the terms of the agreement with regard to contingent fees. Shulman argued that the expenses relating to the lawsuit and the bonuses paid to the employees by Stolz were relevant to Shulman’s claim for 50 percent of the net proceeds, to which he would have been entitled under the original partnership agreement unless it had been modified by the dissolution agreement.

Shulman did agree that the tax information could be admitted with the jury instruction contained in Request 22, which was needed to avoid the jury’s thinking that Stolz would be forced to pay the same money twice, once to the IRS and again to Shulman. The court allowed the evidence because there had been repeated references to the expenses of running the partnership as well as to the disposition of the fee proceeds. It specifically held that the evidence did not relate to the present worldly circumstances of the parties.

Stolz’ objection to the giving of the charge was that it was “highly improper and. highly prejudicial to the defendant in allowing the jury to consider the affect [sic] of income taxes or the refund of income taxes, and inferred to the jury that quite frankly it would be a lot easier to give the plaintiff some money if they thought that Mr. Stolz could get some of that money back from the IRS.”

The charge was a correct statement of federal tax principles. 26 USC § 1341. The primary authority cited in support of defendant’s contention that it was error to give it is Atlantic Coast Line R. Co. v. Brown, 93 Ga. App. 805 (92 SE2d 874) (1956). This is the initial case in which it was held not error to fail to charge upon request that a recovery in a personal injury suit would not be taxable to plaintiff. The court reasoned that it is of no concern to a jury what tax might have to be paid from any sum awarded.

That was not the situation here, since defendant urged the relevancy of the tax payment as going to his state of mind with regard to his understanding of the agreement concerning contingent fees. The court’s instruction merely negated what would have been prejudice to plaintiff, who vehemently objected to the tax information’s admissibility. The court fully instructed the jury that its task was to determine what the parties to the agreement had intended with respect to contingency fees. Then the objected-to instruction was given. Not to have given it would have allowed the jury to conclude that if the agreement was that Shulman was entitled to the money, Stolz would have to pay it twice. Such is not the law and the court’s instruction was not error.

Defendant may not complain of an instruction explaining the legal consequence of evidence which he insisted was admissible. Pegg v. State, 183 Ga. App. 668 (2) (359 SE2d 678) (1987); Farmer v. State, 180 Ga. App. 720, 722 (5) (350 SE2d 583) (1986); Herron v. MARTA, 177 Ga. App. 201, 202 (1) (338 SE2d 777) (1985); see Augusta Tennis Club v. Leger, 186 Ga. App. 440, 441 (1) (367 SE2d 263) (1988).

2. Addressing enumerations 3, 4 & 5 together as presented by appellant, they contend that the trial court erred in directing a partial verdict as to the existence of an agreement, the terms of which were in dispute, as opposed to leaving the question of a contract vel non to the jury and that it further erred in not giving requested jury instructions on the issue of the elements of a contract. Former OCGA § 14-8-90 provided: “[e]very partnership is dissolved at any time by the mutual consent of the partners; . . . .”

At the close of the plaintiff’s case and again at the close of all the evidence, Stolz moved for an “involuntary dismissal” of plaintiff’s case. It was properly treated as a motion for directed verdict pursuant to OCGA § 9-11-50 (a). The only ground at issue here is that relating to the 20 percent claim. The court granted Stolz’ motion as to the claim for 50 percent of the fees, concluding that there had been an agreement to dissolve the firm but thereafter disagreement as to the term regarding contingency fees. As stated by the court during final argument on the motion: “What I’m hearing here, when you take out everything except the bare essentials of it, is a dispute about what the terms of a contract are ... . and if I’m wrong, y’all tell me now. Because that’s the premise upon which I’m basing everything that I. . . do in this case. . . . [T]hese gentlemen got together, dissolved their partnership effective on November 1st, along agreed contract lines .... Two different contentions about a contract that neither one denies exists. It’s what was in it and what wasn’t.”

Counsel for Stolz stated during argument on his motion: “[0]ur contention is they did have an oral agreement .... The problem here is that both of these parties agreed that whatever their agreement, it has been entirely satisfied except for this one little thing, whether the twenty percent was agreed on as a contingent fee or whether it wasn’t. . . . [A]nd the evidence is there was an agreement, you’re right.” Compare Jackson v. Easters, 190 Ga. App 713 (379 SE2d 610) (1989).

In ruling, the court stated: “But it’s absolutely clear here that both sides are contending that there’s an agreement.... There is an agreement. Question is, what were the terms of that agreement with respect to contingent fee cases.”

Stolz raised no objection to this aspect of the court’s ruling at the time it was made, nor did he object to the court’s submission of the issue to the jury, as framed by the granting of his motion. One may not acquiesce in the actions of the trial court, particularly those done as the result of one’s own actions and then complain for the first time on appeal. Hall v. State, 189 Ga. App. 267, 268 (2) (375 SE2d 50) (1988); Pegg, supra; Farmer, supra.

Stolz further objects to the court’s failure to give the requested charges. Request 14 was a general instruction regarding the elements necessary to find the existence of a contract. Since it was not disputed that a contract existed, this charge was neither adjusted to the evidence nor necessary and the failure to give it was not error. Medoc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983); see Georgia Kraft Co. &c. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 585 (317 SE2d 602) (1984).

The failure to give Request 28 dealing with DR 2-107 of the State Bar, 252 Ga. 598, is enumerated as error but is not briefed and is deemed abandoned. Rule 15 (c); Augusta Tennis Club, supra at 442 (3).

3. In his second enumeration, Stolz complains of the court’s failure to give his Request 7, taken from Chambers v. C & S Nat. Bank, 242 Ga. 498 (249 SE2d 214) (1978), that if a party is intentionally self-contradictory, the jury should take against him that version most unfavorable to him.

During discovery, Stolz had obtained from Shulman copies of financial statements submitted by Shulman to his bank. The copy presented to Stolz dated July 1, 1982 reflects a contingent asset of $330,000, representing 20 percent of the fee on a $12.5 million dollar judgment, the Stubblefield fee. During the deposition, Shulman was asked to examine all of the statements as one exhibit. He was asked if he had added anything to those statements since the dates shown on them. He answered “no.” During trial, when questioned specifically about the 1982 statement which was dated prior to the Stubblefield trial, he testified that he had handwritten in the contingent fee on his 1982 statement to use it in preparation of his 1983 statement, which would have been typed from it. He said that he misspoke when, during his deposition, he said nothing had been added after the date of the 1982 statement.

The argument made by Stolz was that Shulman had falsified these statements to reflect the fee in order to bolster his claim. In rebuttal, Shulman presented a bank officer who brought the originals of the statements. The fee was not reflected on the 1982 statement but was on those for the following years. The court gave the charge on credibility contained in the Suggested Pattern Jury Instructions for Civil Cases. In objecting to the charge, defendant argued that Request 7 was a correct statement of the law and suited to the evidence. It is true that it is a correct statement of the law. Weathers v. Cowan, 176 Ga. App. 19, 21 (2) (335 SE2d 392) (1985); see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986). But such a charge is appropriate only where the party is the sole witness testifying in his behalf and the contradictory testimony must be “testimony presented by the party on the trial of the case and not testimony adduced at some other time and place which is introduced on the trial merely for the purposes of impeachment.” Branan v. LaGrange Truck Lines, 94 Ga. App. 829 (3) (96 SE2d 364) (1956); Trout v. Harrison, 188 Ga. App. 246, 248 (3) (372 SE2d 651) (1988); Slaton Machine v. Owens-Illinois, 138 Ga. App. 80, 82 (3) (225 SE2d 473) (1976).

Neither criterion obtains here and its omission was not error.

4. Defendant’s sixth and eighth enumerations argue that the court’s failure to charge his Requests 18 and 25 was error. Request 18 was couched in terms of OCGA § 10-6-31, dealing with principal and agent. Stolz argues that the charge was appropriate on the basis that Shulman “abandoned” the partnership and the Stubblefield case and therefore was not entitled to his “commission” because he violated his “engagement” as reflected in the substitution of counsel filed in Stubblefield, showing the firm of Stolz & Shulman as attorneys.

First, there is no evidence to show that Shulman, personally, as opposed to the firm, was ever designated as the Stubblefields’ agent. The only contact he had with the case was due to his and Stolz’ agreement to put all their cases into the firm on the two occasions when Stolz & Shulman formed. Second, Stolz’ own evidence was that Shulman had nothing to do with the case and that he had never been asked to do anything on the case. This is unlike Denver v. Roane, 99 U. S. 355 (25 LE 476) (1878), relied on by defendant, where a partner withdrew personally from a case, told his partners he would have nothing to do with it and considered it a fraud, and disparaged the case to one of the judges on the court where it was pending. The provisions of OCGA § 10-6-31 would come into play only if the Stubblefields contended that the terms of the “engagement” were violated. There is no evidence that they ever so claimed or that they were in any way displeased with the services of Stolz & Shulman. Third, Stolz’ own evidence was that the partnership was dissolved by agreement as provided by OCGA § 14-8-90, not that Shulman “abandoned” the practice.

OCGA § 10-6-31 was not required to be charged. Jones v. State, 188 Ga. App. 240, 241 (2) (372 SE2d 828) (1988).

Request 25, based on Denver, supra, dealt with the duties owed by partners to each other and to clients. This charge was not appropriate, as there was no evidence from Stolz that he considered the acts of Shulman as an abandonment, although there was some argument presented by counsel on this ground. The evidence showed a dissolution by mutual consent and such a charge was not warranted.

5. Enumeration 7 claims error in the rejection of Request 23, dealing with the nature of a contingent fee and that, as between attorney and client, the attorney has no right to recover a fee until the case is finalized. The argument is that the charge is an accurate legal statement and would have allowed the jury “to infer exactly what Mr. Stolz was bargaining with at the time the plaintiff left the firm.” This apparently means that the contingent fee cases had to be “liabilities” since they had not ripened and therefore Stolz was bargaining with nothing. This argument, however, contradicts Stolz’ testimony that “when Warren left the practice he left me with all the assets and with all the liabilities. And one of the assets were [sic] the contingent fee cases.”

Failure to give the charge was not error.

6. Defendant enumerates as error the denial of his motions for directed verdict, j.n.o.v., and new trial.

At the close of plaintiff’s case, the motion made with regard to the 20 percent claim was that if there were no agreement regarding his withdrawal from the firm, then Shulman’s actions were in violation of DR 2-107 of the Code of Professional Conduct and he could not share in the fees without complying with the requirements of that rule. The contention then was that an oral agreement would not satisfy the rule’s requirement of an “agreement,” but that it had to be written in order to avoid complying with DR 2-107’s fee splitting criteria.

At the close of all evidence, defendant renewed his previous motion and added as grounds that Shulman’s abandonment of his contract obligations to his clients was merely an agreement to breach these obligations, was illegal and could not form the basis for a binding contract. This is not supported by Stolz’ own evidence, particularly viewed in a light favorable to Shulman, as was required in considering the motion for directed verdict. OCGA § 9-11-50 (a); Fountain v. MARTA, 179 Ga. App. 318, 320 (1) (346 SE2d 363) (1986), rev’d on other grounds, 256 Ga. 732 (352 SE2d 781) (1987). Stolz considered all pending cases of the firm as assets on which he and the other employees of the firm would continue to work. He did not dispute that clients brought in by Shulman remained with the firm after Shulman left and there was no evidence of any client contending that he had been abandoned. Stolz urged at every opportunity that he and the associates of the firm were the ones performing the “lawyering” for clients who were brought in mainly by Shulman’s “rainmaking.” Denial of the motion on this ground was not error.

Decided May 2, 1989

Rehearing denied June 9, 1989

Alston & Bird, G. Conley Ingram, Richard T. Fulton, Seaton D. Purdom, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Daniel S. Reinhardt, Anne G. McGlamry, for appellee.

Defendant also argued the Statute of Frauds as a basis for directed verdict. This ground is considered with that set out above concerning DR 2-107, because defendant cited no authority below or here requiring that a dissolution agreement between attorneys be in writing except for the statute of frauds, applicable to all contracts. OCGA § 13-5-30. Shulman’s contention is that the agreement had been taken out of the statute because it could have been performed in one year and it was partially performed by both sides so as to remove it from the statute. OCGA § 13-5-31; Vitner v. Funk, 182 Ga. App. 39, 43 (2) (354 SE2d 666) (1987). Whether the agreement fell within such an exclusion was for the jury. Allen & Bean v. American &c. Ins. Co., 153 Ga. App. 617, 619 (266 SE2d 295) (1980).

Denial of the motions for directed verdict and j.n.o.v. was not error. OCGA § 9-11-50 (a); Vitner, supra.

7. The eleventh enumeration seeks review of the denial of defendant’s motion for summary judgment, which is moot. Estes v. Jack Eckerd Corp., 184 Ga. App. 98, 102 (4) (360 SE2d 649) (1987), citing Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579) (1985).

8. Finally, defendant asserts here that the trial judge was not qualified to rule on the motion for new trial, having qualified in the election for superior court judge. This was never presented to the trial court for consideration and ruling. Although defendant alludes to the motion for supersedeas bond as the occasion when it was presented, neither the record nor the transcript reflect it even though supplementation was allowed. It will not be considered here for the first time. Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8) (1976).

Judgment affirmed.

Benham, Acting P. J., and Judge Robert G. Walther, concur. Carley, C. J., and McMurray, P. J., disqualified.

       All of the events at issue occurred prior to the effective date of the Uniform Partnership Act, Ga. L. 1984, p. 1439 et seq.


author: Banke, Presiding Judge.

text:
    A89A0543.
    FOWLER v. CAMPBELL.
    (383 SE2d 163)
   Banke, Presiding Judge.

This is an appeal from a summary judgment for the defendant in a “slip and fall” case. The plaintiff fell and was injured while ascending some stairs on the defendant’s premises leading to a parking lot. He contends that the stairs were inherently dangerous because of a variation in the height of the steps.

The stairway was constructed in the 1940’s. It consisted of only four steps, the first two of which were each approximately six and one-half inches high, the third of which was approximately eight inches high, and the uppermost of which was no more than three inches high. In 1967, the steps were resurfaced, and a steel handrail was installed; however, the respective height of the steps was not altered by these improvements.

The defendant’s store manager testified that he had been employed at the store since 1959 and that he had no knowledge of any prior incident involving a fall on the steps in question. In addition, the defendant submitted the affidavit of the Building and Zoning Inspector for the City of Covington, who averred that no building ordinance had been in effect at the time the stairway was built and that the improvements made to the steps in 1967 had not violated any building ordinance in effect at that time. The plaintiff countered with expert opinion evidence to the effect that the stairs were not in conformity with the Southern Standard Building Code. The plaintiff’s expert further averred that, in his professional opinion, it was the difference between the heights of the second and third risers which had caused the plaintiff’s fall. Held:

1. A proprietor owes a duty to invitees to keep the approaches and premises in a safe condition. OCGA § 51-3-1. The basis of a proprietor’s liability for injuries to an invitee resulting from a defective or hazardous condition existing on the premises is the proprietor’s superior knowledge of the condition and of the potential for injury created by it. See, e.g., Cook v. Arrington, 183 Ga. App. 384 (358 SE2d 869) (1987). A proprietor is not an insurer of an invitee’s safety, and an invitee is expected to exercise care for his own safety; however, “an invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects.” Amear v. Hall, 164 Ga. App. 163, 167 (296 SE2d 611) (1982). “ ‘Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law. . . . [Cits.]’ ” Herrington v. Stone Mtn. Memorial Assn., 119 Ga. App. 658, 661 (168 SE2d 633) (1969).

The defendant in this case certainly has not negated the allegation that it had superior knowledge that the steps were of uneven height. However, we nevertheless conclude that the trial court acted properly in granting the defendant’s motion for summary judgment, due to the absence of any allegation or testimony by the plaintiff that it was the uneven height of the steps which had caused him to fall, rather than some factor unconnected with the existence of this alleged defect. Under the circumstances, the opinion of his expert in this regard has no probative value since there is no indication that the expert had witnessed the fall or was otherwise personally familiar with where or how it had occurred. We must accordingly treat this as a case in which the fall occurred “for an unexplained reason.” Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987).

Decided May 30, 1989

Rehearing denied June 9, 1989

Siler & Jonap, D. Jeffrey Grate, for appellant.

Samuel D. Ozburn, for appellee.

“ ‘ “To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” ’ ” McGauley v. Piggly-Wiggly Southern, 170 Ga. App. 851, 852 (319 SE2d 15) (1984). Accord Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). In the absence of any allegation or probative evidence indicating that the fall would not have occurred but for the existence of the alleged defect, we hold that the trial court did not err in concluding that no issue of fact existed in the case for resolution by a jury. Accord Chisholm v. Fulton Supply Co., 184 Ga. App. 378 (361 SE2d 540) (1987).

2. In view of the foregoing, we find it unnecessary to address the plaintiff’s contention that the building inspector’s affidavit had no probative value on the issue of whether variation in the height of the steps constituted a building code violation. Cf. Chisholm, supra.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0060.
    GREEN v. THE STATE.
    (383 SE2d 359)
   Carley, Chief Judge.

After accusations had been brought against him, appellant filed a pleading which he captioned as his “DEMAND.” Within the text of this pleading, appellant made numerous evidentiary and procedural demands, including a demand for “trial by jury pursuant to the Official Code of Georgia Annotated, Section 17-7-170. . . .” When two terms of court passed and appellant had not been brought to trial, he moved for acquittal. Appellant brings this direct appeal from the order denying his motion for acquittal. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985).

“ ‘[H]enceforth a demand for trial will not be considered sufficient to invoke the extreme sanction of . . . (OCGA § 17-7-170) unless it is presented for what it is — a demand to be tried within the next succeeding term of court.’ ” Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762) (1984). In holding that appellant’s pleading failed to meet this standard, the trial court relied upon Kramer v. State, 185 Ga. App. 254 (363 SE2d 800) (1987). The pleading that was under consideration in Kramer had been captioned as a “JURY DEMAND.” We held that such a caption “fails to set out ‘the exact nature of the pleading’ as a demand for tried and would also constitute a misleading caption for a demand for trial pursuant to OCGA § 17-7-170. . . . [T]he recipient of a document captioned as a ‘JURY DEMAND’ will not necessarily attribute to it the same ‘exact nature’ as would be attributed to a document captioned as a ‘DEMAND FOR TRIAL.’ A written demand for a jury is not analogous to a demand for trial pursuant to OCGA § 17-7-170. [Cit.]” (Emphasis omitted.) Kramer v. State, supra at 255. Thus, the pleading deficiency in Kramer was in the misleading over-specificity of “JURY DEMAND” as a caption for a pleading which also included a demand for trial pursuant to OCGA § 17-7-170. Compare State v. Prestia, 183 Ga. App. 24 (357 SE2d 829) (1987). “The caption does not set ‘out the exact nature’ of the pleading as containing an additional demand by appellant for a speedy trial pursuant to OCGA § 17-7-170.” (Emphasis supplied in part and omitted in part.) Kramer v. State, supra at 256.

Here, unlike in Kramer, the caption of appellant’s pleading would not mislead its recipient into construing it as being no more than a mere demand for a jury trial. The caption “DEMAND” sets out the “exact nature” of the pleading as a general request for an evidentiary or procedural right which appellant, as a criminal defendant, seeks to invoke. Rather than being misled, the recipient of such a generally captioned pleading would be required to read the text so as to determine which right or rights were being invoked. Nothing in Kramer requires that each demand for an evidentiary or procedural right be made in a separate pleading with a separate caption. See generally State v. Prestia, supra. Likewise, Kramer does not require that the caption of a multi-demand pleading duplicate the text and specify which demands are being made therein. All that Kramer requires is that the caption of a pleading be otherwise exact and non-misleading. Employment of “DEMAND” as a general caption for a pleading wherein a number of evidentiary and procedural rights are invoked is sufficient to meet this standard.

Decided June 9, 1989.

Pruitt & Britt, Glyndon C. Pruitt, for appellant.

Gerald N. Blaney, Solicitor, for appellee.

The text of appellant’s pleading specified his reliance upon the provisions of OCGA § 17-7-170. No “particular form [is] required so long as the demand can reasonably be construed as a demand for trial under the provisions of [OCGA § 17-7-170].” State v. Adamczyk, 162 Ga. App. 288, 290 (290 SE2d 149) (1982). There is no requirement that, in addition to a specific citation to the statute itself, a demand must also quote the relevant provisions thereof. To hold otherwise would be to construe OCGA § 17-7-170 as strictly as it once was construed liberally. See State v. Adamczyk, supra. Accordingly, we hold that appellant’s demand, considering both its caption and its text, can reasonably be construed as a demand for a speedy trial under the provisions of OCGA § 17-7-170. It necessarily follows that the trial court erred in denying appellant’s motion for acquittal.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0484.
    BROWN v. THE STATE.
    (383 SE2d 361)
   Carley, Chief Judge.

After a bench trial, appellant was found guilty of two counts of aggravated assault, one count of possession of a firearm during the commission of the aggravated assaults and one count of possession of a firearm by a convicted felon. Appellant appeals from the judgments of conviction and sentences entered by the trial court on its findings of guilt.

1. In one of his enumerations of error, appellant urges that the offense of possession of a firearm merged into the aggravated assaults.

“Appellant’s position is totally undermined by the Supreme Court’s decision in Wiley v. State, 250 Ga. 343 (6) (296 SE2d 714) (1982), where the court found express legislative intent to impose double punishment for conduct which violates both OCGA § 16-11-106 and another felony statute.” McKissic v. State, 178 Ga. App. 23, 24 (2) (341 SE2d 903) (1986). See also McMachren v. State, 187 Ga. App. 793, 796 (4) (371 SE2d 445) (1988).

2. Appellant enumerates his sentences as error. He urges that he was erroneously sentenced as a habitual offender pursuant to OCGA § 17-10-7 (b).

Although appellant was indicted as a recidivist pursuant to QCGA § 17-10-7 (b), the record clearly shows that he was not sentenced as a recidivist. After the trial court specifically found it had not been proven that appellant’s three prior convictions were for felonies, the State asked that the prior convictions be considered in aggravation of appellant’s sentences and the trial court agreed to do so. Appellant’s contention that he was nevertheless sentenced as a recidivist is premised upon the following isolated comment of the trial court: “[B]ut since there is some question about whether these were felonies under the Recidivist — I am inclined to sentence him under the Recidivist Act, but I am taking into consideration his prior crimes.” (Emphasis supplied.) Appellant’s reliance upon this comment is misplaced. Considering the entire context in which it was made, it is clear that the trial court made a slip of the tongue and intended to say: “I am not inclined to sentence him under the Recidivist Act. . . .” Indeed, after making the comment, the trial court explained that the severity of the sentences that it was imposing was warranted by the violent and serious nature of the crimes committed by appellant. Under these circumstances, there is no merit in the contention that appellant was sentenced as a recidivist.

3. Appellant enumerates as error the trial court’s failure to afford him a jury trial in the absence of a knowing, intelligent, and voluntary waiver of that constitutional right.

This issue is raised for the first time on appeal. “[I]nasmuch as the record indicates a valid waiver may have occurred but the record does not reflect whether [appellant] personally, knowingly, voluntarily, and intelligently participated in such waiver, this case is remanded to the trial court for a hearing on this issue. [Cits.]” Wooten v. State, 162 Ga. App. 719, 721 (293 SE2d 11) (1982). There being no merit in any of appellant’s other enumerations of error, the effect of such disposition is “to end the case as far as this court ‘is concerned until and unless a notice of appeal is filed by (appellant) after an adverse ruling subsequent to the (trial court’s) holding of the required hearing and the entry of the required findings concerning the issue of [waiver of the right to trial by jury]. Of course, should the trial court find [no valid waiver] requiring the grant of new trial, the new trial would proceed. Therefore, for all purposes, this particular case (would be) completed from the appellate review standpoint and (would) not reappear here except by virtue of a new notice of appeal from some future order entered by the trial court.’ [Cit.]” Foote v. State, 184 Ga. App. 900, 901 (1) (363 SE2d 180) (1987).

Judgments of conviction and sentences affirmed. Case remanded with direction.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Decided June 9, 1989.

Daniel L. Henderson, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

Beasley, Judge,

concurring specially.

I concur in Divisions 1 and 2. With respect to Division 3,1 concur as we have followed this procedure before. Lark v. State, 190 Ga. App. 821 (380 SE2d 505) (1989).

However, it should be noted that defendant did not raise this issue in the trial court, as could have been done. New counsel filed a notice of appeal instead of first seeking correction in the trial court. Doing so would have met what the Supreme Court regards as “a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, [which is] that any contention concerning the violation of [a] constitutional right . . . should be made at the earliest practicable moment.” Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). This principle, which was there applied to the right of counsel, has been similarly applied subsequently in Thompson v. State, 257 Ga. 386, 388 (359 SE2d 664) (1987), and Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988).

It ought also apply here, with waiver occurring in the future if the principle is not observed. Otherwise we become complicitors in delay by institutionalizing it. Overlooking the absence of a timely raising in the trial court encourages a lack of vigilance during the criminal proceeding in the knowledge that this court would simply return the case for further hearing. Piecemeal direct appeals, whereby a criminal case is shunted back and forth between the courts, ought to be avoided rather than reach routine proportions. Williams v. State, 257 Ga. 311 (357 SE2d 578) (1987) is a good example.


text:
    A89A0584.
    STEPHENSON v. THE STATE.
    (383 SE2d 363)
   Birdsong, Judge.

Appellant Michael Brett Stephenson appeals his conviction for rape, aggravated assault, and kidnapping. His single contention, on general grounds, that the evidence failed to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), is without merit.

The evidence is undisputed that while she was out socializing with her cousin, the victim met the appellant in a well-known Atlanta bar or nightclub. Appellant appeared to be known by other patrons of the club. After several hours of social congress, the victim left the club with appellant to have dinner at a restaurant. A few hours later, the victim appeared at a witness’ house near a secluded area, banging on the door and saying she had been raped. The witness allowed the victim in his house and observed that her hand was cut, her makeup and clothes were in disarray, and she appeared to be in shock. When she was admitted to Grady Hospital, she was observed by the emergency room physician to have a bruise on her left eye, bruises on her neck, and a cut on her right hand that required stitches. The victim was examined and treated for sexual assault, whereupon “non-motile sperm” was found to be present in the vaginal area; but this doctor found no physical “trauma” to that area.

It was appellant’s defense that the evidence in general and the scientific and medical tests performed did not exclude reasonable doubts as to his innocence inasmuch as, e.g., the presence of non-motile sperm indicated the victim had engaged in sexual intercourse earlier than her meeting with him, and, e.g., no “trauma” was observed in the genital area.

These defense theories notwithstanding, the evidence was amply sufficient to enable a rational juror to conclude the appellant’s guilt of all the offenses beyond a reasonable doubt, under the Jackson v. Virginia, standard. The scientific evidence pointed to by appellant as raising a reasonable doubt, is not conclusive in any respect that appellant did not kidnap the victim and assault her with a knife and rape her. If there was any possibility for doubt or uncertainty, the jury resolved it against the appellant, as it is empowered to do, being the arbiter not only as to the credibility of witnesses but also as to all conflicts in the evidence and all questions of reasonableness. Harris v. State, 236 Ga. 242 (223 SE2d 643); Mercier v. Mercier, 46 Ga. 643; Williams v. State, 153 Ga. App. 890, 893-894 (267 SE2d 305); Gee v. State, 146 Ga. App. 528 (246 SE2d 720). For this reason, where the jury has already determined all such questions by its verdict, the presumption of innocence no longer obtains on appeal and we are required to construe all evidence in favor of the verdict (see Powers v. State, 150 Ga. App. 25 (256 SE2d 637)); and we will not disturb the verdict unless it is insupportable as a matter of law. Lewis v. State, 149 Ga. App. 181 (254 SE2d 142); Pless v. State, 142 Ga. App. 594 (236 SE2d 842).

This verdict is not “insupportable as a matter of law.” Nothing in the evidence, even according to appellant’s version, precludes absolutely a conclusion of identity and guilt. There was a great deal of direct testimony by the victim describing what appellant did to her by way of kidnap, assault with a knife, and rape; and there was as well a great deal of circumstantial evidence that the victim was assaulted and raped, and that appellant did it. We thus find the evidence adhering well to the Jackson v. Virginia, standard, and not insupportable as a matter of law or fact.

Decided June 9, 1989.

M. Muffy Blue, Penny A. Penn, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Joseph J. Drolet, Keith L. Lindsay, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0537.
    DYKES v. THE STATE.
    (383 SE2d 210)
   Birdsong, Judge.

Appellant was found guilty of rape and aggravated assault with intent to rape. The trial court ruled that the aggravated assault charge merged with the rape charge, and sentenced appellant only on the latter charge. Appellant appeals his conviction.

The victim, Ms. Houston, visited her sister’s house where the appellant was participating in an all-male card game. Ms. Houston left the house with appellant and their mutual cousin, Herbert Wilson. Ms. Houston testified that after the appellant took Herbert Wilson home, he took her to a local park and raped her twice and forced her to commit sodomy upon him. She further testified that she had been threatened and struck in the face and abdomen by the appellant. Ms. Houston went to the house of Ms. Carter following the incident. She was nude below the waist and hysterical.

The appellant made an incriminating statement to the police which was introduced into evidence. In his statement, appellant admitted to having intercourse with Ms. Houston, but claimed that she had consented to have sex with him for $100. Appellant stated that Ms. Houston became very upset, evidently because he subsequently refused to pay her for her services. Held:

1. Review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [rape as] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257). Appellant’s first enumeration of error is without merit.

2. Appellant asserts that the trial court erred in not declaring a mistrial after it was revealed that the jury had been subjected to improper influence and had viewed matters not in evidence.

The record reflects that a map was discovered in the jury room. It had been facing the wall and would have had to be moved to be viewed. The map was of the general local area, and included thereon the alleged location of the crime scene. Certain physical descriptions of the crime scene in evidence in the case sub judice differed from the depiction of the crime scene on the map. The map appears to have been left from a prior trial, and there is no evidence that it was purposefully placed in the jury room by any of the parties in this case.

Following discovery of the map, which appeared to have been in the jury room “a long time,” appellant made a motion for mistrial. The court recalled the jury and the following colloquy occurred. “THE COURT: ... [A] map was in the jury room when it should not have been. And I would like to know if any of you or all of you have looked at and considered this map. A JUROR: I looked at it, and I didn’t find the area. And I assumed it was for something else. THE COURT: Well, it was from another case. But I just wanted to make sure that you had not been influenced by this particular map. All right. Then I believe I can safely charge you.” (Emphasis supplied.)

Following this colloquy, the appellant failed to renew his motion for mistrial or to request additional curative instructions. See Jarrells v. State, 258 Ga. 833, 836 (5) (b) (375 SE2d 842). Qualified jurors, under oath, are presumed in the absence of clear evidence to the contrary to follow the procedural directives of and to honestly respond to questions of the trial judge. Cf. Strother Ford v. First Nat. Bank, 132 Ga. App. 268, 270 (208 SE2d 25) (presumption of performance of official and social duties). Accordingly, it is apparent that only one juror examined this map, and this juror acknowledged on the record that he looked for but could not find the crime scene area thereon. Under these circumstances “ ‘nothing more than an irregularity is shown. An irregularity without opportunity for injury will not require the grant of a new trial.’ ” Smith v. State, 218 Ga. 216, 223 (126 SE2d 789); compare Lamons v. State, 255 Ga. 511 (340 SE2d 183) with Hardy v. State, 242 Ga. 702 (3) (251 SE2d 289).

Further, we are satisfied beyond a reasonable doubt that the alleged error, if any, did not prejudice the appellant. Even error of constitutional magnitude is harmless “ ‘if there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” ’ ” Vaughn v. State, 248 Ga. 127 (2) (281 SE2d 594).

The trial court did not abuse its discretion in refusing to grant appellant’s mistrial motion. Menningmann v. Independent Fire Ins. Co., 187 Ga. App. 118, 120 (369 SE2d 295).

3. Appellant asserts that the trial court erred in failing to give a charge on mistake of fact, as requested.

Review of the transcript reveals that the defense of mistake of fact was not reasonably raised by competent evidence of record. Gunter v. State, 155 Ga. App. 176 (3) (270 SE2d 224); see Brown v. State, 190 Ga. App. 324 (4) (378 SE2d 908); Britt v. State, 184 Ga. App. 445 (1) (361 SE2d 710); Pittman v. State, 175 Ga. App. 50 (1) (332 SE2d 356).

Decided June 12, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert M. Coker, Assistant District Attorneys, for appellee.

Moreover, assuming arguendo that a mistake of fact defense reasonably was raised by the evidence, it is not reversible error to fail to instruct on mistake of fact when, as in this case, the defendant also asserts another defense at trial. Flanders v. State, 188 Ga. App. 98 (3) (371 SE2d 918); Abelman v. State, 185 Ga. App. 278 (2) (363 SE2d 764).

Judgment affirmed.

Been, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    A89A0852.
    RAY v. THE STATE.
    (383 SE2d 364)
   Sognier, Judge.

Carl Jubal Ray appeals from his conviction for aggravated assault.

1. Appellant enumerates the general grounds. At trial Keith Anthony West testified that he and appellant were residents of a rooming house, and that on the evening in question, appellant became angry at him for talking with appellant’s female visitor. West testified that when he tried to apologize to appellant, appellant became verbally abusive, left the living room where they were seated watching television, then returned with something in his hand. When West stood up, appellant grabbed him by the waist from behind and stabbed him in the back, chest, and hand. West stated he struggled with appellant and in the course of the scuffle they bumped against a table by a window and knocked out a window pane, but that he (West) never fell out through the window. Neither the police officer who was first on the scene nor the senior crime scene investigator found any sign of blood on the window glass or around the window in question and both noted that the wooden pane dividers in that window were intact. The paramedic who treated West at the scene testified that West had suffered puncture or stab wounds, which are different from the lacerations one would receive if injured by cut glass where the glass had not been used as a knife. The treating physician testified that West’s injuries were puncture wounds, inconsistent with the injuries a person would receive from falling through a window.

Decided June 12, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Robert M. Coker, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.

Appellant testified that West provoked the confrontation and during the fight that ensued, he grabbed West’s arms, brought them down to West’s side, and started running toward the window, still holding West. Appellant stated that a third party removed the table by the window so that he and West crashed into the window, breaking the glass. Appellant denied stabbing West and asserted West’s injuries were caused by the broken window glass.

“It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. [Cit.] Viewing the evidence in that light, we are satisfied that any rational trier of fact could have found appellant guilty beyond a reasonable doubt. [Cit.]; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Blackman v. State, 178 Ga. App. 88, 89 (1) (342 SE2d 24) (1986).

2. Appellant contends the trial court erred by failing to give his requested charge on accident taken from OCGA § 16-2-2. The trial court correctly ruled the requested charge setting forth that affirmative defense was inconsistent with appellant’s claim that he stabbed West in self-defense. See Culbreath v. State, 258 Ga. 373, 376 (4) (369 SE2d 29) (1988). Appellant’s reliance on Mathews v. United States, 485 U. S. _ (108 SC 883, 99 LE2d 54) (1988) is misplaced because, dicta regarding allowance of instructions on inconsistent affirmative defenses in some states notwithstanding, the Mathews court did not recognize an entitlement to instructions on inconsistent affirmative defenses as a matter of constitutional dimension, but rather merely resolved the issue in federal courts under federal rules of criminal procedure.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0018.
    LEE v. THE STATE.
    (383 SE2d 366)
   Beasley, Judge.

Lee appeals from his conviction of criminal contempt for refusing to testify in the trial of his co-defendant, Lawton, after he was granted immunity pursuant to OCGA § 24-9-28.

Lee and Lawton were indicted for the robbery and murder of Jones. Lee was tried in January of 1988 and convicted. He testified in his own behalf at that trial.

Upon the trial of Lawton in April of 1988, the prosecutor filed a motion for an order of immunity, which was granted. Lee and his attorney were present for the hearing on the motion. Counsel objected to the entry of an immunity order on the basis of the Fifth Amendment to the United States Constitution and OCGA § 24-9-20. The statutory provision has been held to be governed by the same standards as the Federal Constitutional counterpart up to that time. Jordan v. State, 239 Ga. 526, 527 (3) (238 SE2d 69) (1977). The State Constitutional provision (Ga. Const. 1983, Art. I, Sec. I, Par. XVI) was not invoked. Counsel urged that since Lee had a motion for new trial still pending, he was entitled to the privilege against self-incrimination, citing Stallings v. State, 136 Ga. 131 (70 SE 1015) (1911).

Lee was later called as a witness and questioned by the district attorney about the crimes. After stating his name and acknowledging that he knew Lawton, he refused to answer any of the remaining questions. He did not affirmatively invoke any particular rights after each question asked but merely sat mute even though he was ordered, after each question, to answer. The only reason defendant himself gave for not testifying was during the hearing on the State’s motion, when he testified that his life would be in danger if he testified against Lawton.

1. Defendant’s first ground, that the immunity granted was not unconstitutional use and derivative use immunity, was not presented and is not entitled to an initial ruling here. Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980). Further, an examination of the grant shows it was as full as provided by OCGA § 24-9-28, so that its scope did not constitute a valid reason for refusing to testify.

2. The second enumeration alleges denial of due process and effective assistance of counsel during consideration of the motion. This contention is based on the alleged lack of adequate notice of the impending grant of immunity. Counsel, however, acknowledged during the hearing that he had known the motion was coming and had discussed it with his client, who had been returned to the county one month before by court order, expressly in anticipation of his being a witness in the co-defendant’s trial. The only request made of the court was for “20 minutes or so” to go and check the statute relied on by the State (OCGA § 24-9-28). When the court denied this request, no further request or objection was made. Instead, counsel presented argument and both statutory (OCGA § 24-9-20) and case authority in opposing the grant of immunity. Defendant thus waived review of the court’s refusal to grant a twenty-minute recess by not objecting to proceeding without it. Fowler, supra; Smith v. State, 186 Ga. App. 303, 311 & 313 (5) & (7) (367 SE2d 573) (1988).

Moreover, although he suggests some, he has shown no harm due to the lack of a recess at that time. Black & White Constr. v. Bolden Contractors, 187 Ga. App. 805, 806 (1) (371 SE2d 421) (1988).

Several of the points challenging the grant of immunity urged on appeal were the same points defendant was prepared to and did present below. Although he may have unearthed and formulated the other points presented here had the recess been allowed, none of them would have defeated the State’s motion anyway.

a) The fact he still had a pending motion for new trial which, if granted by the trial court or required by the appellate court, would have subjected him to the self-incrimination choice once again, did not preclude compelled testimony via immunity in his co-defendant’s trial. OCGA § 24-9-28.

b) The extent of the immunity was not partial, as he feared, but full, as contained in the order read to him by the court (although the transcript indicates he may not have listened) and provided by the statute. OCGA § 24-9-28; Corson v. Hames, 239 Ga. 534 (238 SE2d 75) (1977); Brooks v. State, 238 Ga. 435 (233 SE2d 208) (1977).

c) The prerequisite that the State must show the compelled testimony would be “necessary to the public interest,” which defendant claims was missing, was articulated in the State’s motion. It stated that Lee had direct personal knowledge of the actions of Lawton which constituted the crimes for which he was on trial, and that Lee had made statements to the police and in his own trial to the effect that he was present during the commission of the crimes and was involved and participated fully in their commission. Lee did not controvert and does not challenge any of this. Evidence of it was in the court’s own record of his trial. The prerequisite was met. Orkin v. State, 236 Ga. 176 (223 SE2d 61) (1976). Just because the State had other evidence incriminating Lawton did not render unnecessary the testimony of his accomplice, who was the only other eyewitness, so as to render compulsion unjustified.

While the State could have, and should have under USCR 31, filed and served its motion in advance so as to give the defendant and the court adequate notice of this preliminary matter to permit responsive preparation and scheduling adjustment, under the circumstances here we cannot conclude that as a matter of law the court deprived defendant of due process or effective assistance of counsel by refusing a twenty-minute recess.

3. As stated by the trial court, defendant had waived his rights not to be compelled to give testimony against himself by testifying during his own trial. Garner v. United States, 424 U. S. 648 (96 SC 1178, 47 LE2d 370) (1976); Carter v. State, 161 Ga. App. 734, 736 (3) (288 SE2d 749) (1982); Leonard v. State, 146 Ga. App. 439, 441 (3) (246 SE2d 450) (1978); see Feig v. Feig, 246 Ga. 763 (272 SE2d 723) (1980); Pendergrass v. State, 245 Ga. 626, 628 (2) (266 SE2d 225) (1980).

Decided June 13, 1989.

Willyerd R. Collier, for appellant.

Spencer Lawton, Jr., District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.

Stallings, supra, relied upon by Lee, does not indicate that the defendant/witness asserting his right to remain silent in his co-defendant’s trial had already testified in his own trial, as occurred here.

Finally, remaining mute in response to the questions propounded by the prosecutor was not an appropriate method by which to invoke the protection. Cohran v. Carlin, 165 Ga. App. 141, 142 (297 SE2d 54) (1983).

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs in Divisions 1 and 3 and in the judgment.


text:
    A89A0319, A89A0320.
    HUTCHISON et al. v. NATIONAL SERVICES INDUSTRIES, INC. et al.; and vice versa.
    (383 SE2d 212)
   Banke, Presiding Judge.

The appellants, Welber and Marylin Hutchison, filed the present action against Philip Banks, Steven Banks, and National Service Industries, Inc., d/b/a North Brothers Insulation (NSI), seeking to recover for personal injuries allegedly sustained by Mr. Hutchison in a collision involving a NSI vehicle being driven by Steven Banks. Steven Banks did not answer, and as to him the action is in default. NSI and Philip Banks did file an answer and also moved for summary judgment on various grounds. On February 12, 1988, the trial court granted a partial summary judgment to these defendants with respect to certain issues; and thereafter, in an order entered on February 23, 1988, the court granted partial summary judgment to NSI on an additional issue. The appellants filed a notice of appeal from the latter ruling on March 23, 1988, and on March 25, 1988 (which was more than 30 days following the entry of the second summary judgment order), the appellees filed a cross-appeal. The appellees have moved this court to dismiss those portions of the main appeal dealing with the order entered on February 12,1988, on the ground that the appellants did not file a timely notice of appeal from that order. Held:

1. The appellees’ contention that we are without jurisdiction to consider the appellants’ first four enumerations of error, dealing with the February 12 order, is meritorious. Although not required to do so, a losing party has the right under OCGA § 9-11-56 (h) to bring a direct appeal from an order granting summary judgment on any issue, even though other issues may remain for adjudication. See Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978); Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425 (1) (333 SE2d 622) (1985). In the Olympic Dev. case, supra, this court held that where the appellants had failed to bring a timely appeal from a grant of partial summary judgment, they could not obtain appellate review of that ruling in an appeal from a subsequent grant of partial summary judgment, where the latter order did not constitute a final judgment in the case. We recognize that this holding creates an exception to the general rule that once a case is on appeal, all rulings theretofore made by the trial court are subject to review. See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980). Such an exception is, however, appropriate in that a grant of partial summary judgment, unlike most other non-final orders, is immediately appealable as a matter of right, with the result that a party who chooses not to bring a direct appeal from such an order may reasonably be deemed to have made an election to wait until a final judgment has been entered in the case to challenge the ruling. We note that the holding in the Olympic Dev. case is consistent with the language of OCGA § 5-6-34 (d), which applies by its terms only to appeals taken pursuant to OCGA § 5-6-34 (a) (b) or (c) and not to appeals taken pursuant to OCGA § 9-11-56 (h). We accordingly hold that the appellants’ enumerations of error dealing with the February 12 grant of partial summary judgment to the appellees present nothing for review.

2. Pursuant to Rule 15 (c) (2) of this court, the appellants’ final enumeration of error, referencing the February 23 order, is deemed abandoned due to their failure to support it with argument or citation of authority. See Brown v. Diaz, 184 Ga. App. 409 (361 SE2d 490) (1987).

3. While abandonment of an enumeration of error is not normally ground for dismissal of the appeal, we hold that it is ground for the dismissal of the present appeal, inasmuch as it is apparent under the circumstances that the abandoned enumeration of error was used solely as a vehicle for obtaining appellate review of an order which is not presently subject to such review. The main appeal is consequently dismissed in its entirety; and, there being no independent jurisdictional basis for the cross-appeal, it follows that it must also be dismissed. See Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493, 497 (268 SE2d 733) (1980).

Decided June 13, 1989.

Bennett, Williams & Henry, Michael T. Bennett, for appellants.

McClain & Merritt, Albert J. Decusati, M. David Merritt, Drew, Eckl & Farnham, Steven D. Barnhart, Long, Weinberg, Ansley & Wheeler, James S. Strawinski, for appellees.

Appeals dismissed.

Sognier and Pope, JJ., concur.


author: Benham, Judge.

text:
    A89A0386.
    REESE v. THE STATE.
    (383 SE2d 149)
   Benham, Judge.

Appellant was convicted of possession with intent to distribute cocaine. On appeal, he challenges the sufficiency of the evidence and a ruling by the trial court. We find no error and affirm the judgment.

1. Appellant contends that in this case based on circumstantial evidence, the State failed to prove his guilt to the exclusion of all other theories consistent with his innocence. The evidence adduced at trial was as follows: A detective received information from a confidential informant that cocaine and marijuana were being cut up and repackaged for resale at Charlie Hadden’s residence, and that Frank Paulk, Gloria Fullmore, and Hadden, a known drug dealer, were there. When the detectives arrived at the scene to investigate, all that was found was residue on the dining room table. The same informant called the officer a second time later that day and said that all of the participants were at Fullmore’s residence with the contraband. The detective and two other law enforcement officers went to Fullmore’s residence and saw her and an unknown man, later identified as appellant, sitting on the front porch. When the officers rode by, Ms. Fullmore jumped up, appellant said something to her, and she sat back down and waved at the officers. The officers left and, shortly thereafter, the detective received a third telephone call from the informant, who stated that a person carrying two bags had run out the back door of the Fullmore house as the officers drove by and had placed the two bags at the corner of the church behind Fullmore’s residence. The detectives parked in the church yard and walked to the rear corner of the church, where they found a brown paper bag that appeared to have been recently placed there. The bag contained cocaine wrapped in aluminum foil.

A fingerprint examiner for the State Crime Lab testified that several fingerprints that matched appellant’s prints were found on pieces of the aluminum foil containing cocaine found in the bag, and that a white powdery substance, cocaine, was visible on three of the prints developed on the foil.

Appellant testified that Fullmore was a close friend of his whom he visited two or three times a week, and that he often brought her hot meals covered in aluminum foil. He further testified that on the day in question, he passed by Fullmore’s house, recognized Paulk’s and Hadden’s vehicles parked in front of it, and stopped by to see what was going on; that Fullmore came out of the house and sat outside talking with him; that they went into the house after the detectives drove by; and that when he entered the kitchen, he saw Paulk and Hadden going out the back door. Appellant said that he had never seen cocaine before the day of his trial and didn’t know anything about those drugs until they were mentioned to him, and that he had no idea how his fingerprints got on the foil packets of cocaine.

“ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ . . . ‘This does not mean that the (S)tate must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence.’ [Cit.] Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the jury. ‘(T)his court will not substitute its judgment as to what is a reasonable hypothesis for that of the jury or the trial court.’ [Cit.] Neither is the jury obliged to accept defendant’s explanation of circumstantial facts. [Cit.]” Henderson v. State, 184 Ga. App. 834 (2) (363 SE2d 52) (1987). We find that the evidence is sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of violating the Georgia Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Henderson, supra.

2. While cross-examining a detective involved in the case, appellant’s attorney asked him whether May 6 was the date on which he had made a case against appellant. The detective responded that he did not know what the exact date was, and the State’s attorney offered a copy of the detective’s report to refresh his memory. The detective refreshed his memory as to the date, and the questioning continued. Later in the examination, the witness referred to his notes again, attempting to answer another question about the specific date of another occurrence. Appellant’s attorney moved the trial court for the opportunity to review the detective’s entire file. The trial judge denied the motion, saying that he observed the detective looking at the top page of the report to see the date about which counsel inquired; that he did not review the file for the purpose of refreshing his memory; and that he did thumb through a number of pages looking for the letter regarding the sending of fingerprints to the crime lab in an attempt to answer appellant’s attorney’s question about the second date. “ ‘[A] defendant in a criminal case has the right upon request, to examine a document used by a witness to refresh his recollection. [Cits.]’ ” Catchings v. State, 256 Ga. 241 (9) (347 SE2d 572) (1986). There is no evidence that the witness was using his file during the trial to refresh his recollection. Therefore, appellant had no right to examine the file, as he sought to do. Id.

Decided May 22, 1989

Rehearing denied June 19, 1989

Hackel & Hackel, Thomas M. Hackel, for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

Judgment affirmed.

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