author: Deen, Presiding Judge.

text:
    73855.
    BAGWELL v. PARKER et al.
    (355 SE2d 463)
   Deen, Presiding Judge.

Appellant James T. Bagwell brought suit against appellees Bob-bye C. Smith and her daughter Joanna C. Parker, seeking damages of $50,000 plus costs for loss of consortium due to injuries received by his wife when her automobile was struck by a vehicle owned by Smith and operated by Parker. On March 26, 1986, Bagwell was granted a default judgment in the amount of $52,650. On June 17, 1986, Parker and Smith moved pursuant to OCGA § 9-11-60 (d) to set aside the default judgment on the ground that it contained a non-amendable defect appearing on the face of the record in that the damages awarded exceeded the amount sought. On July 1, 1986, a hearing on the motion was held at which appellees were allowed to amend their motion and present evidence that the default judgment was obtained through “fraud, accident or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant,” as authorized by OCGA § 9-11-60 (d) (2), as amended by Ga. L. 1986, p. 294, § 1, which became effective on that date. Upon the grant of the motion to set aside based on this theory, appellant timely obtained a certificate of immediate review, which was granted by this court.

1. Appellees contend that because the judge who rendered the judgment sought to be reviewed was not the one who issued the certificate of immediate review, albeit of the same court and signed on behalf of the original judge, the requirements of OCGA § 5-6-34 (b) were not met and the appeal must be dismissed. While there is some language in Sears v. Citizens Exchange Bank, 166 Ga. App. 840, 842 (305 SE2d 609) (1983), which might support this contention in regard to the appropriate judge to grant a motion to open default in the same term of court under OCGA § 9-11-55, appellees have cited no authority and we are unpersuaded that such a situation is in any way analogous to the certification for immediate review procedure.

2. Pretermitting appellant’s arguments advanced as a basis for reversal is the fact that the default judgment was set aside here because of evidence presented by Mrs. Smith that her insurer failed to answer the suit after she had turned the pleadings over to it and was told that all matters in her defense were being handled by representatives of the insurance company. Effective July 1, 1986, the General Assembly amended the Civil Practice Act, OCGA § 9-11-60. Ga. L. 1986, p. 294, § 1. This amendment prohibited the use of a complaint in equity to set aside a judgment. OCGA § 9-11-60 (e), as amended. However, the grounds for such relief were not eliminated, but rather were assigned as grounds for a motion to set aside at law. See OCGA § 9-11-60 (d) (2), as amended. The effect of these changes is to allow any trial court to set aside a judgment rendered by it based upon grounds formerly reserved to superior courts via complaints in equity. See OCGA § 9-11-60 (b), as amended. Thus, for the purpose of a motion to set aside pursuant to OCGA § 9-11-60, as amended effective July 1, 1986, the grounds of “[fjraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the [movant]” are available as remedies at law.

Decided March 13, 1987

Rehearing denied March 25, 1987.

“Whether an action is equitable is determined by its allegations and prayers. [Cit.] On appeal, whether a complaint rests in equity and is beyond the jurisdiction of the court of origin, is a matter for determination by the Court of Appeals. [Cit.]” Wellcraft Mfg. v. Troutman, 123 Ga. App. 321 (2) (180 SE2d 588) (1971). We find that the motion to set aside, as amended by appellees on July 1, 1986, was an action at law pursuant to OCGA § 9-11-60 (d) (2), as effective on that date, and that the State Court of Fulton County had jurisdiction to entertain it. Compare Kaplan v. City of Atlanta, 158 Ga. App. 58 (2) (279 SE2d 307) (1981); Bouldin v. Haverty Furniture Cos., 136 Ga. App. 30 (1) (220 SE2d 48) (1975), decided prior to the 1986 amendment. However, we conclude that it erred in granting the motion under the facts here.

“ ‘The purpose which a court of equity had, when it first exercised jurisdiction to annul a judgment obtained by fraud, was to prevent the adverse party from obtaining an unconscionable advantage as the result of a judgment at law. One who has obtained a judgment at law according to the prescribed method, and who is not chargeable with any conduct which would amount to fraud or imposition upon the adverse party in relation to the judgment, will not be interfered with by a court of equity for the mere reason that a stranger perpetrated a fraud which prevented the other party to the judgment from interposing a defense. The remedy of the party who is the victim of such fraud at the hand of a stranger to the plaintiff is not by resort to a court of equity to have the judgment set aside, but by seeking proper redress against him who perpetrated the fraud. In Morris v. Morris, 76 Ga. 733, it was said, “While equity may set aside a judgment for fraud, it must be fraud in the plaintiff in the judgment, or his counsel or agents.” We think the correct rule is the one announced in that decision.’ [Emphasis supplied.] [Cits.]” Marsh v. Way, 256 Ga. 46, 48 (343 SE2d 686) (1986), quoting Lanier v. Nunnally & Co., 128 Ga. 358, 359 (57 SE 689) (1907).

Since the alleged fraud, accident or mistake relied upon here to set aside the default judgment was that of the agent of Mrs. Smith’s insurer, it was not that of “the plaintiff in the judgment, or his counsel or agents.” Accordingly, the trial court erred in granting the motion to set aside appellant’s default judgment pursuant to OCGA § 9-11-60 (d) (2) and the related relief sought, for Mrs. Smith’s proper remedy is to seek redress against her insurer.

Judgment reversed.

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

Ralph C. McBride, for appellant.

Walter IV. Furlong, Alfred J. Turk III, for appellees.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74147.
    SUBSEQUENT INJURY TRUST FUND OF GEORGIA v. HARBIN HOMES, INC. et al.
    (355 SE2d 702)
   Birdsong, Chief Judge.

This appeal appears before us as the result of the grant of an Application for Discretionary Appeal to the Subsequent Injury Trust Fund. The facts giving rise to this appeal show that an employee-claimant (Roberts) was employed by the respondent Harbin Homes, Inc. and covered by its workers’ compensation insurer, American Motorist Company. The record establishes that the claimant, Ms. Roberts, had suffered from a functional seizure disorder similar to epilepsy for a period of time before she was employed by Harbin Homes as a full-time employee, hired with full knowledge of the disability and indeed under a company policy of hiring the disabled. A few weeks after Ms. Roberts was hired, she suffered an incapacitating back injury. She was treated and returned to work but within a couple of days was fired, apparently because she could not function as well as the employer had expected. Ms. Roberts became unemployed in 1982 following the back injury and has been paid workers’ compensation from that time by the insurer-employer.

During the period from 1982 until 1986, Ms. Roberts has been repeatedly treated and evaluated for her seizure disorder and her back condition. The employer-insurer eventually concluded from the medical evaluations of Ms. Roberts that the injury to Ms. Roberts’ back of September 1982, had been materially, substantially and cumulatively aggravated by the permanent and pre-existing seizure syndrome and together they curtailed her ability to gain economic employment. Pursuant to OCGA § 34-9-350 et seq., the employer-insurer made application to the Subsequent Injury Trust Fund for reimbursement for her back injury. The Subsequent Injury Trust Fund denied the reimbursement because it contended the employer-insurer had not established that the pre-existing seizure condition had been shown to have “merged” with the back injury so as to aggravate the back injury to the point of materially contributing to Ms. Roberts’ state of unemployability. Evidence established that there were no detectable organic grounds for Ms. Roberts’ seizures; thus, they were characterized as a functional disorder. There was evidence the seizures perhaps were caused by stress and emotional factors. Because maximum rehabilitative level had been achieved in regard to the back injury, she did not receive further medical intervention in regard to the back injury. A pain control center concluded that Ms. Roberts had achieved a maximum level of recovery and rehabilitation although she continued to display symptoms of depression and a low level of self-confidence.

As late as 1985, a rehabilitative report to the State Board of Workers’ Compensation indicated that Ms. Roberts still complained of low back strain and still suffered from functional seizures. Once again it was verified that Ms. Roberts was diagnosed as having reached maximum medical improvement from her back injury of 1982. Ms. Roberts was released back to work but without success. There was evidence presented that the difficulty experienced by Ms. Roberts in obtaining reemployment was actuated by the existence of the functional seizures, by emotional problems, by transportation problems, by scarcity of employment opportunities in her immediate neighborhood, by her low educational background and her lack of or low degree of financial motivation, as well as by the continuing discomfort from the low back strain (which apparently would not improve).

After the Subsequent Injury Trust Fund denied the claimed reimbursement, the employer-insurer made application to the State Board of Workers’ Compensation to determine whether Ms. Roberts’ back injury had merged with her prior impairment so as to cause a greater degree of impairment. At a hearing before an ALJ, it was determined that the evidence established a merger and order was entered directing the reimbursement. This award was appealed by the Subsequent Injury Trust Fund to the full Board which adopted the facts and findings made by the ALJ. Based upon those same facts, the full Board concluded the employer-insurer had failed to prove that Ms. Roberts suffered from a reimbursable greater degree of disability, i.e., that it had failed to prove the back injury was materially, substantially, and cumulatively greater because of the prior presence of the functional seizures. The employer-insurer appealed the order of the full Board to the superior court which reversed the full Board. The superior court found as a matter of fact and law that there was no evidence to support the award of the full Board. The superior court ordered the award of the ALJ to be reinstated. The Subsequent Injury Trust Fund then successfully applied to this court to review the judgment of the superior court. Held:

As we review the facts of this case, we, as did the superior court, could easily conclude that there was ample evidence to support a conclusion that Ms. Roberts’ back injury had merged with the pre-existing functional seizure and that the effect upon availability of reemployment resulting from the back injury was rendered greater because of the prior impairment. It is clear that the ALJ considered the various factors that contributed to Ms. Roberts’ continued state of unemployability and determined that of the several factors that might have caused that condition the seizure syndrome was the major reason together with the back weakness that made her unemployable. However, it is equally clear that the full Board upon its independent, de novo consideration of this same evidence concluded that while there was evidence of a seizure syndrome it was not the principal factor that materially, substantially, and cumulatively aggravated the back condition so as to synergize a greater degree of disability when considered cumulatively.

Decided March 11, 1987

Rehearing denied March 25, 1987

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Rita J. Llop, Assistant Attorney General, for appellant.

Even though we as an appellate court (or for that fact the superior court) may disagree with the conclusion of the full Board, we, each of us, are duty bound to do justice before we grant generosity. Penn. Millers Mut. Ins. Co. v. Heule, 140 Ga. App. 851, 854 (232 SE2d 267). The full Board, the same as the ALJ, is a finder of fact. Each is entitled to make independent findings of fact and conclusions of law even though the facts are the same but the conclusions different. A finding of fact made by the full Board when supported by any evidence, is conclusive and binding upon the superior court as well as this court. Neither we nor the superior court have any authority to set aside an award based on supported findings of fact merely because we might disagree with the conclusions reached therein. Turner v. Baggett Transp. Co., 128 Ga. App. 801, 804 (198 SE2d 412); Employers Ins. Co. v. Amerson, 109 Ga. App. 275 (136 SE2d 12). Our review of the record in this case reflects that there were several factors any one or a combination of which could have materially, substantially and conclusively merged with and caused Ms. Roberts’ continued unemployability. Thus, neither we nor the superior court are at liberty to conclude that there was no evidence to support the ultimate award of the full Board. Accordingly, the superior court erred in not applying the “any evidence” rule as to the award of the full Board (Zurich Ins. Co. v. Robinson, 127 Ga. App. 113 (192 SE2d 533)), thereby sustaining the award of the full Board. Atkinson v. Home Indem. Co., 141 Ga. App. 687 (234 SE2d 359).

Judgment reversed.

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

Guy R. Taylor, for appellees.


author: Benham, Judge.

text:
    73103.
    HAYES v. THE STATE.
    (355 SE2d 700)
   Benham, Judge.

Appellant seeks reversal of his convictions for possessing cocaine, diazepam, and untaxed liquor. We affirm.

1. Appellant maintains his motion to suppress should have been granted because the affidavit upon which the search warrant was issued did not describe with sufficient specificity the premises to be searched; it contained stale information; the most recent information was unverified and came from an anonymous tipster; and allegedly exculpatory material was not presented to the magistrate.

In the affidavit which accompanied the request for the issuance of a search warrant, the affiant/officer described the premises to be searched as “the entire premises known as 3851 Hwy 20 N. E., Conyers, Ga. Said premises further described as a house trailer behind the lake, farthest from Ga. 20 . . . Said property is located behind the old Hayes’ Junkyard and Store, north of Conyers on Ga. Hwy 20, on the easterly side.” The affiant stated that, earlier that day, an anonymous tipster had told GBI agents that, in the last 72 hours, he/she had observed cocaine in appellant’s trailer and marijuana concealed in the adjacent woods. The caller admitted purchasing cocaine from appellant, displayed a “truthful manner,” and expressed a desire to end his/her involvement with cocaine. The tipster gave a detailed description of the location of appellant’s trailer and recited appellant’s unlisted telephone number. The affiant averred that he was personally aware that the tipster’s description of the location of appellant’s trailer was accurate, and that investigation verified the accuracy of the unlisted telephone number. As further corroboration of the tipster’s information, the affiant detailed the contents of anonymous tips law enforcement officers had received in May 1983 and February 1984 concerning appellant’s possession and sale of cocaine. The affidavit also described appellant as having “been found in violation of the Georgia Controlled Substances Act, on or about August 3, 1977.”

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for concluding’ that probable cause existed.” Illinois v. Gates, 462 U. S. 213, 238 (103 SC 2317, 76 LE2d 527) (1983); State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). An appellate court should “grant . . . deference to the decision of the Magistrate to issue a warrant” and avoid “after the fact, de novo scrutiny” of the sufficiency of the affidavit. Massachusetts v. Upton, 466 U. S. 727, 732 (104 SC 2085, 80 LE2d 721) (1984). See also Illinois v. Gates, supra, 462 U. S. at 236.

Contrary to appellant’s assertion, the place to be searched was clearly specified. Caffo v. State, 247 Ga. 751 (2a) (279 SE2d 678) (1981); Cooksey v. State, 149 Ga. App. 572 (2) (254 SE2d 892) (1979). The information appellant contends was stale (the 1977 criminal activity, the 1983 and 1984 anonymous tips) was presented as corroborating the anonymous tip received the day the affiant applied for the warrant. Furthermore, the inclusion in an affidavit for a search warrant of a suspect’s past criminal conduct is permissible since an officer’s knowledge of a suspect’s reputation is a “practical consideration of everyday life upon which an officer [or a magistrate] may properly rely.” Caffo v. State, supra, Div. 2c. See also Felker v. State, 252 Ga. 351 (5) (314 SE2d 621) (1984). The affidavit also contained information corroborating the anonymous tip. See Curry v. State, 255 Ga. 215 (1) (336 SE2d 762) (1985); Thomas v. State, 173 Ga. App. 481 (1) (326 SE2d 840) (1985). As for appellant’s assertion that the affidavit is deficient in that it failed to present “exculpatory” information, we are unaware of any requirement that exculpatory material be included in an ex parte application for a search warrant. There is no evidence that material misrepresentations were knowingly or recklessly included in the affidavit, and there was no showing of misconduct on the part of the affiant. See Mize v. State, 173 Ga. App. 327 (1) (326 SE2d 782) (1985). In the absence of such evidence, the presumption of validity of an affidavit executed in support of a search warrant must stand. See Ross v. State, 169 Ga. App. 655, 657 (314 SE2d 674) (1984).

2. Appellant argues that the trial court’s charge on the law of admissions was impermissibly burden shifting, and that the trial court erred in charging the provisions of OCGA § 3-2-33 (a) without informing the jury of the content of OCGA § 3-3-8. Neither alleged error was preserved for appeal when the trial court asked for any exceptions counsel had to the charge. See Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980). Appellant’s allegations do not constitute error.

3. Finally, appellant contends that exculpatory material and the informant’s identity were denied him despite his timely requests therefor. The trial court made an in camera inspection of the State’s file and all exculpatory material was delivered to appellant’s counsel. Appellant now has the burden of showing both the materiality and the favorable nature of the material he sought but did not receive. Mere speculation that there may be exculpatory information is insufficient. See Welch v. State, 251 Ga. 197 (8) (304 SE2d 391) (1983). The disclosure of the identity of a mere tipster is not required. State v. Royal, 247 Ga. 309 (2) (275 SE2d 646) (1981).

Decided March 10, 1987

Rehearing denied March 26, 1987

M. Randall Peek, for appellant.

Robert F. Mumford, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    73115.
    EIDSON v. THE STATE.
    (355 SE2d 691)
   Pope, Judge.

Curtis Eidson brings this appeal from his conviction of five counts of child molestation (OCGA § 16-6-4) and one count of simple battery (OCGA § 16-5-23). We affirm.

The record reveals that one of the victims was a fourteen-year-old female who testified that she knew appellant as the father of her “best friend.” Her contact with him resulted from her social relationship with his daughter. She stated that beginning in the third grade and on several occasions thereafter, appellant would rub her back and “work his hands around” to her chest as she watched television with him and his daughter at their home. On several occasions while she was at appellant’s home or while she drove with him in his truck, he would “touch himself” and touch her on the chest area and sometimes “down lower”; that several times he performed oral sex on her and on occasion required that she reciprocate; that approximately three years before trial, he took semi-nude photographs of her while she posed on top of a toy box in the basement of his home; and that between her seventh and eighth grade year, he attempted to have sexual intercourse with her and made other improper advances while in a bedroom in his home. The testimony of this victim was offered as evidence of four counts of child molestation as well as evidence of similar transactions.

The second victim was fourteen years old at the time of trial. She was on the same cheerleading squad with appellant’s daughter and the first victim. Approximately two years before trial, appellant offered to teach her to drive. During the driving lesson, he placed his hand under her shirt and touched her on the right breast. This testimony was offered as evidence of one count of child molestation.

The third victim was in the ninth grade at the time of trial. She testified that during the eighth grade, appellant was driving her home from a party at his home when he touched her on the breast. This testimony was offered as evidence of simple battery.

Other testimony offered as evidence of similar transactions included that of a seventeen-year-old female. She testified that approximately six years before trial while she helped make leather bracelets in appellant’s basement, he asked if she knew what cupping her breasts meant; then, he showed her. On another occasion, he made improper advances toward hér when she spent the night with his daughter at his home. Lastly, she testified that he took several children to a creek and “made us go skinny dipping.” Another witness confirmed this and testified that “he wouldn’t let us dry off by ourselves]. He had to dry us off.”

1. Appellant argues that the prosecutor made improper remarks while posing objections to appellant’s closing argument; therefore, appellant argues that he was denied due process, equal protection, and a fundamentally fair trial. The record does not contain a transcript of closing arguments; it contains only objections made thereto. Prosecutorial objections made during appellant’s closing argument reflect, however, that they were directed to a reference by appellant’s counsel to the prosecution’s failure to call appellant’s wife, daughter and psychiatrist to the stand. The record reflects that appellant failed to move for mistrial, or request curative instructions, or otherwise object to the method by which the prosecution framed his objections at trial. For purposes of appeal, therefore, appellant has waived any right to review of the same. Whatley v. State, 165 Ga. App. 13 (2) (299 SE2d 87) (1983). See also Adams v. State, 171 Ga. 90 (8) (154 SE 700) (1930).

2. Appellant argues that the failure of the State to comply with the notice requirements of Uniform Superior Court Rule 31.3 regarding similar transactions resulted in a violation of due process, equal protection, and a fundamentally fair trial. He develops this argument by stating that the failure of the prosecution to provide him with specific dates of other similar transactions places him in a dilemma in the event of future prosecutions.

Uniform Superior Court Rule 31.3 requires the prosecution to file notice in writing of an intent to present evidence of similar transactions at trial. The notice must state the “transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced.” The record reveals that the minor witnesses who testified could only remember general dates, not specific ones. Therefore, the prosecution did not have specific dates of similar transactions in its possession. In revealing to appellant the information which it had, the prosecution complied with Rule 31.3. See Cargill v. State, 255 Ga. 616 (16) (340 SE2d 891) (1986); Stewart v. State, 180 Ga. App. 266 (2) (349 SE2d 18) (1986). See generally Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987). Further, appellant’s claim of double jeopardy must fail in that he does not presently have standing to raise on appeal the possibility of future harm. This court corrects only such errors as have actually wronged the complaining party, not speculative ones. See Arnold v. State, 146 Ga. App. 624 (2) (247 SE2d 207) (1978).

3. Appellant cites as error the admission of photographs taken of his residence pursuant to a search warrant issued shortly before trial, contending that the purpose of issuance of the warrant was improper and illegal. Appellant also argues that the trial court erred in failing to conduct an evidentiary hearing on his motion to suppress.

The record discloses that prior to trial appellant raised the issue of his motion to suppress. The assistant district attorney stated in his place that no physical evidence seized as a result of the search would be tendered, only photographs of the alleged crime scene. These photographs were subsequently admitted over appellant’s objection.

Clearly, appellant was entitled to a hearing on his properly filed motion to suppress. OCGA § 17-5-30 (b); Gray v. State, 145 Ga. App. 293 (1) (243 SE2d 687) (1978). However, “harm or prejudice must be demonstrated before a violation of [OCGA § 17-5-30 (b)] can be said to give rise to reversible error.” State v. Peabody, 247 Ga. 580, 582 (277 SE2d 668) (1981). Appellant has failed to show such harm or prejudice. See generally Yarbrough v. State, 151 Ga. App. 474 (2) (260 SE2d 369) (1979). Moreover, apart from these photographs, the evidence against appellant is so overwhelming that it is highly probable that their admission did not contribute to his conviction. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

4. Appellant argues that the prosecution’s failure to introduce evidence of specific dates for each count of the indictment as well as its failure to introduce specific dates for similar transactions could have resulted in jury confusion as to which evidence was offered for the substantive acts and which evidence was offered for the similar transactions. This argument is without merit. As appellant concedes, proof of the date of commission of a crime is not generally a necessary element which the State must prove beyond a reasonable doubt. See Reynolds v. State, 147 Ga. App. 488 (3b) (249 SE2d 305) (1978). Further, the record reveals that the court instructed the jury that appellant was on trial for the particular offenses described in the special presentment, and not for any other charge or charges. Also, the court instructed that “[e]vidence of the defendant’s conduct with reference to similar transactions about the same time is admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved. If you think it does so illustrate it, and for that purpose alone, you are not to consider it for any other purpose. . . . Whether the accused has or has not committed other similar offenses is a matter solely for your determination. However, if you believe that the accused has had similar transactions . . . you are considering it solely with reference to the mental state, identity or intent of the accused insofar as the same is applicable to . . . the charge contained in the Special Presentment in this case and for no other purposé.” In view of these instructions, jury confusion is merely speculative and without foundation. See Melton v. State, 175 Ga. App. 472 (1) (333 SE2d 682) (1985).

Decided March 9, 1987

Rehearing denied March 26, 1987

Frank J. Petrella, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    73157.
    WOLTERS v. KENNEDY.
    (355 SE2d 665)
   Benham, Judge.

Appellant, a widower, applied to the probate court for a second year’s support. OCGA § 53-5-4. The application was denied and an appeal taken to the superior court, where summary judgment was granted appellee, the executrix of the decedent’s estate. Appellant brings this appeal from the grant of summary judgment to appellee.

At the time appellant filed the application at issue here, OCGA § 53-5-4 provided: “When an estate is to be kept together for more than 12 months and there are no debts to pay, the surviving spouse and minor children to be supported out of the estate shall have a year’s support for each year that the estate may be kept together . . .’’In support of her motion for summary judgment, appellee filed an affidavit in which she swore that at the time appellant’s application was filed, the estate had unpaid obligations, including executrix fees, attorney fees, a year’s support, a claim for funeral expenses, taxes, and estate administration costs. In an affidavit filed in opposition to appellee’s motion, appellant averred that he had tendered payment of all “legitimate” debts of the estate. In its order granting summary judgment, the trial court found that at the time of appellant’s application, the estate had outstanding obligations for probate court costs, legal advertisements, funeral expenses, and attorney fees for the probate of the will and representation of the estate with regard to appellant’s application for a year’s support.

Decided February 9, 1987

Rehearing denied March 26, 1987

Alton B. Kitchings, for appellant.

Robert E. Falligant, Jr., for appellee.

The obligations listed by the trial court are debts to be paid by the estate. See Woodall v. First Nat. Bank, 118 Ga. App. 440 (2) (164 SE2d 361) (1968). Appellant’s tender of payment of the “legitimate” debts of the estate did not, due to his restrictive definition of the term “legitimate debts,” cover all the estate’s obligations. Therefore, the superior court was correct in denying appellant’s application for a second year’s support. Crummey v. Crummey, 58 Ga. App. 57 (2) (197 SE 501) (1938).

Judgment affirmed.

Been, P. J., and Beasley, J., concur.


text:
    73426.
    NEAL v. THE STATE.
    (355 SE2d 469)
   Benham, Judge.

Appellant was indicted on charges of theft by taking and burglary. As to the charge of theft by taking, it was alleged that appellant stole a motorcycle from the House of Suzuki (“Suzuki”), in Houston County, Georgia. The case was tried in Houston County, where the theft occurred. The jury was charged on theft by taking and, at the request of appellant’s counsel, on theft by receiving, a lesser included offense of theft by taking. As to the crime of theft by receiving, appellant offered evidence that he purchased the motorcycle from a friend in Peach County, Georgia. Appellant was convicted of theft by receiving and appeals from the denial of his motion for new trial.

In his two enumerations of error appellant asserts the general grounds, contending that there was no evidence of his knowledge that the motorcycle was stolen, and lack of venue, contending that the evidence relating to theft by receiving established that it was committed, if at all, in Peach County. We held in Speights v. State, 163 Ga. App. 738, 740 (294 SE2d 650) (1982): “if the evidence supports a verdict of guilty in the more serious offense, and if there is slight evidence of the lesser included offense, a defendant who requests a charge on and is convicted of the lesser offense may not successfully urge the general grounds on appeal.” See also State v. Clay, 249 Ga. 250, 251 (290 SE2d 84) (1982).

Here the evidence was sufficient to support a verdict of guilty of the crimes charged in the indictment. On July 7, 1984, Suzuki was entered through a hole made in the concrete block wall at the rear of the store. Taken from the store was a motorcycle, a helmet, and a license tag. The day after the burglary, two police officers spotted appellant on the motorcycle and approached him. Appellant fled and a chase ensued, ending when appellant skidded into a patrol car. The license tag on the motorcycle and the helmet appellant was wearing were both stolen from Suzuki. Appellant’s fingerprints were found inside Suzuki on another motorcycle. Shoe prints similar to those he was wearing when he was arrested were found on the ground near the rear of the shop. “Evidence of recent, unexplained possession of stolen property is sufficient in itself to support a conviction of theft by taking [Cit.]. As to the burglary, appellant’s fingerprint^ are] direct evidence that he was in [Suzuki].” Lewis v. State, 179 Ga. App. 17, 18 (345 SE2d 120) (1986).

Decided March 17, 1987

Rehearing denied March 26, 1987.

Harry J. Fox, Jr., for appellant.

G. Theron Finlayson, District Attorney, George R. Christian, Assistant District Attorney, for appellee.

Once the State meets its burden and “ ‘a defendant affirmatively requests a charge of a lesser included offense, he presents to the jury a choice of verdicts.’ [Cit.] In other words, a criminal defendant under these circumstances will not be permitted to transform a successful trial strategy into reversible error thereby avoiding any punishment for his criminal act.” Speights v. State, supra at 740.

Judgment affirmed,

Deen, P. J., concurs. Beasley, J., concurs in judgment only.


text:
    73584.
    EMORY UNIVERSITY, INC. v. DUNCAN et al.
    (355 SE2d 446)
   Pope, Judge.

Plaintiffs June and Weldon Duncan brought this action for negligence and loss of consortium, respectively, against defendant Emory University, Inc. seeking recovery of damages for injuries incurred following June Duncan’s fall on defendant’s premises. We granted this interlocutory appeal to review the trial court’s denial of defendant’s motion for summary judgment.

Defendant’s sole enumeration of error asserts that the condition which allegedly caused Ms. Duncan to fall was open, obvious and in plain view, thus precluding plaintiffs’ recovery as a matter of law. The evidence of record shows that Ms. Duncan fell and was injured on the entryway to Cox Hall on the Emory University campus when the toe of her shoe caught on a one-inch rise in the concrete. There were no warning signs nor is there any color or texture differentiation in the concrete. She became aware of the one-inch rise only after she had fallen. Also, she had no prior knowledge of this condition as her fall occurred the first time she used this approach to the building. After she had ascended the steps leading up to the entryway, she was walking and looking straight ahead and did not see the alleged defect in the concrete because there was nothing to differentiate the one-inch rise from the remainder of the entryway. In her affidavit opposing defendant’s motion for summary judgment she expressed the opinion that a person exercising ordinary care would not notice the one-inch rise unless specifically looking for such “defective” condition. Plaintiffs also submitted the affidavit of an architect who gave his expert opinion that the one-inch rise constituted “an inherently dangerous structural defect at said location and a safety hazard for the users of [the entryway].”

In her deposition Ms. Duncan testified that on the day of her fall, there was nothing obscuring the spot of the alleged defect; it was a clear day and she was not distracted. Her questioning continued: “Q. This one-inch rise, if you are standing over, can you see it? A. I would say if you look down at the ground you could see it. Q. You wouldn’t have to get on your hands and knees to see it? A. No. If you look down at it, I am sure you can see it. Q. If you look down at it, is it an obvious condition; can you see it? A. I wouldn’t say that it was obvious, no. You would never know it was there. I think if you walked into the building the way I did, unless you actually look down, you would not see it and it is not something that stands out. It is not painted or anything.” Ms. Duncan also testified: “Q. On the day you fell, did you see what had caused you to fall? A. Oh, yes, it was very obvious. The security guard asked me, the ambulance attendant, they could see clearly what caused me to fall. Q. They could clearly see where you fell? A. Yes. . . . Q. When you went out there again, could you clearly see the spot where you had fallen? A. Yes, when I went back. Q. If you went out there with us today, would you be able to clearly see it? A. Yes, if I was standing right there, yes. Q. If we were to go out there today, is that spot in plain view? A. I don’t think it would be in plain view. Q. Would we have to move something out of the way to see it? A. No. You would have to look down to see it. Q. But if we look down, would it be in plain view? A. If you look down. Q. If you focused your eyes on it? A. Down on the ground you would see it.”

1. As a preliminary matter, we disagree with defendant’s assertion that there is a direct contradiction between Ms. Duncan’s deposition testimony and her affidavit opposing summary judgment. In essence she testified that there was nothing about the alleged defect which would have drawn her attention to it. This does not contradict her further testimony that the defect was plainly visible if one looked down at it. We therefore construe all of the- evidence here more strongly against defendant, as movant for summary judgment. See Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713 (279 SE2d 210) (1981); see also Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

2. We find instructive the analysis in Hadaway v. Cooner Enterprises, 172 Ga. App. 113 (321 SE2d 830) (1984), in which we restated rules applicable to this type of case: “The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Punctuation omitted.) Id. at 114. The Hadaway court also noted “a distinction between emergency conditions existent on an owner’s premises and static conditions which are not inherently dangerous in and of themselves. . . . [W]here an invitee encounters an unusual or emergency situation which is known to the owner, there may be a substantial question as to application of the assumption of risk doctrine. However, ... a different standard [exists] where there is a patent and long standing but static defect. ... [A] ‘static’ defect [is] one which in and of itself is not dangerous. Certainly where there is common knowledge of a break in pavement, the defect standing alone is not dangerous or likely to cause injury until such time as one drives into it or falls into it. The rules governing the land proprietor’s duty to his invitee presuppose that the possessor knows of the condition and has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” (Citations and punctuation omitted.) Id. at 114-15.

“The proof offered clearly puts this case within the line of cases involving the ‘plain view’ doctrine and effectively eliminates any ‘distraction’ theory. [Cits.]” Id. at 115. Moreover, the condition of the entryway could only be classified as “static” under the definition cited above in the Hadaway case. Whether or not Ms. Duncan’s fall occurred the first time she used the subject entryway, “the test would be the same — was this rise inherently dangerous so that, assuming the exercise of ordinary care for her own safety, plaintiff could still have fallen.” Cash & Save Drugs v. Drew, 124 Ga. App. 721 (185 SE2d 786) (1971). Plaintiffs’ assertion that there was nothing about the alleged defect which would have drawn Ms. Duncan’s attention to it cannot avail, for it does not appear that she ever looked down. Accord Rich’s, Inc. v. Waters, 129 Ga. App. 305 (199 SE2d 623) (1973); Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 49 (183 SE2d 7) (1971). It was incumbent upon her, as a matter of law, to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path. Rich’s Inc. v. Waters, supra; Holliday v. Mayor &c. of Athens, 10 Ga. App. 709, 713 (74 SE 67) (1912). Furthermore, “[w]arnings of . . . conditions] which are or should be obvious are not required.” Herschel McDaniel Funeral Home, supra at 49. In the posture presented, and applying the legal maxims thereto, we find the trial court erred in denying defendant’s motion for summary judgment. Accord Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28) (1986).

Decided March 3, 1987

Rehearing denied March 26, 1987

J. M. Hudgins IV, Lance D. Lourie, for appellant.

Christopher G. Knighton, Robert A. Eisner, for appellees.

Judgment reversed.

McMurray, P. J., concurs. Carley, J., concurs in the judgment only.


author: Benham, Judge. Beasley, Judge,

text:
    73121.
    BERNYK v. THE STATE.
    (355 SE2d 753)
   Benham, Judge.

Richard Bernyk appeals from his conviction and sentence for armed robbery.

1. Appellant contends the trial court erred in denying his motion to dismiss based on an alleged violation of OCGA § 42-6-20, Art. IV (e), Interstate Agreement on Detainers which provides in pertinent part: “If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same prejudice.”

The evidence adduced at trial showed that appellant, while in federal custody in Tennessee, filed a motion for disposition of his cases pursuant to OCGA § 42-6-20, Art. Ill (a). Thereafter, on March 4, 1985, he was brought to Fulton County Georgia where he entered pleas of guilty to two armed robberies. On April 8, 1985, he was returned to federal authorities in Tennessee. Subsequent to his return, appellant was indicted for armed robbery by the DeKalb County Grand Jury in Georgia. On June 21, 1985, appellant filed another request for disposition of his cases. He was again returned to Georgia; and on October 15, 1985, a jury in DeKalb Superior Court convicted him for the offense of armed robbery. Appellant argues since he was returned to federal custody by Georgia prior to the disposition of his DeKalb County charges, he is entitled to dismissal of his indictment in DeKalb County pursuant to OCGA § 42-6-20, Art. IV (e). We disagree.

Art. III (d) of the Interstate Agreement on Detainers provides: “Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed.” (Emphasis supplied.)

The evidence, including appellant’s testimony, is abundantly clear that the DeKalb indictment was not returned until April 8, 1985, which was over a month after the plea had been entered in Fulton County. Therefore, no indictment upon which trial could be had was pending in DeKalb County, Georgia when appellant was in the State. Moreover, appellant, himself, requested disposition of his case in DeKalb County. “The purpose of the statute is to insure speedy trial on pending charges before staleness and difficulty of proof set in.” Suggs v. Hopper, 234 Ga. 242, 243 (215 SE2d 246) (1975). When the second request was filed, the DeKalb County case was dealt with expeditiously and in a manner inoffensive to the Interstate Agreement on Detainers. As appellant received the relief he sought, he has no cause to complain. This enumeration is without merit.

2. In his second enumeration of error, appellant contends the trial court erred in the admission of evidence of three other separate armed robberies. “ ‘When one is on trial charged with the commission of a crime, proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other.’ [Cit.] ‘Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. [Cits.]’ ” Wright v. State, 165 Ga. App. 790 (3) (302 SE2d 706) (1983). (Emphasis supplied.)

The evidence in the case sub judice shows that on September 18, 1984 a young woman while exiting her car at the YMCA parking lot on Clairmont Road was approached by appellant who brandished a gun and demanded her car. She complied, and appellant drove away in her vehicle.

The three similar transactions which were admitted against appellant also involved armed robberies committed in close proximity to the crime charged, and all were committed within seven days. The first and second extrinsic crimes introduced at trial were the armed robberies of the same bank located on North Ponce De Leon which is within minutes of the YMCA where the armed robbery of the young woman took place. The first time the bank was robbed was on September 18, 1984, the same day and within ten minutes after the robbery at the YMCA. The description given by the bank employee of the car in which appellant used to flee the bank robbery was identical to the stolen vehicle taken from the parking lot of the YMCA. Also, the bank employee’s description of the small handgun used in the bank robbery matched the description of the handgun used in the armed robbery at the YMCA. The bank was robbed again by appellant on September 24, 1984. Appellant pleaded guilty to both of these robberies. The third extrinsic crime introduced was that of an armed robbery of a grocery store located on N. Highland Avenue. That armed robbery was committed on September 14, 1984, four days before the armed robbery at the YMCA. The grocery store is also located within minutes of the YMCA.

“In view of the similarities between the crime charged and the independent crimes, evidence of the latter was admissible to show common motive, plan or scheme.” Wright v. State, supra at 791.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 1. However, I cannot agree with Division 2 insofar as it concludes at the end that the evidence of the other crimes was admissible because “similar.” The crime for which Bernyk was on trial was the armed robbery of a young woman in a parking lot in which the property taken was her car. The independent crimes were armed robberies of establishments, a bank (twice) and a retail store, for cash. The indicia of sameness which the majority articulates do indicate clearly, however, that the crimes were logically connected.

The whole course of criminal conduct occurred between September 14 and 24, in the same locality. In at least one of the bank robberies, the car which was the object of the robbery on trial was used. Thus, as highlighted by the majority at the outset of Division 2, there was a logical connection between the crime for which Bernyk was on trial and the three other incidents which were a part of his spree. As such, even if they were not similar, they were admissible as sufficiently connected.

The Supreme Court has stated the exception to the rule of inadmissibility of separate crimes clearly: “The only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried. Crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence. Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980).

Thus, either similarity or, as we have here, close connection in terms of such factors as time and place, are two categories of those logically connected crimes which may be considered admissible. As to the latter, see, e.g., Putman v. State, 251 Ga. 605, 608 (2) (308 SE2d 145) (1983).

In addition, at least a certain portion of one of the bank robberies was admissible for the reason that it was inextricably tied to the car robbery victim’s identification of defendant. She first identified him as her robber when she saw a photo monitor surveillance of the bank robbery on television.

We must always be vigilant, as the court is here, to carefully draw the distinction between which other crimes are admissible and which are not, in order to steadfastly abide by the traditional mandate codified in OCGA § 24-2-2. Otherwise we will allow an inching over into a practice where a defendant’s past behavior is routinely admitted and we have trials by dossier rather than trials limited to the person’s relationship to simply the act with which he is charged.

In this vein, too, the purpose for which the other crimes are admitted should be articulated. OCGA § 24-2-2 states that they are “irrelevant” to start with, “unless the nature of the action (on trial) involves such character (of defendant) and renders necessary or proper the investigation of such (other) conduct.” In this case, as in many, the district attorney never stated what specific purpose this evidence was to serve. Nor was it required by the court to be narrowed or articulated. What issue or issues were at stake for which the evidence was relevant was never identified. Instead, the whole list of permissible purposes was assumed, in justification for the admission of the evidence, despite defendant’s initial attempt to raise the question.

Decided March 18, 1987

Rehearing denied March 27, 1987

Lawrence L. Schneider, for appellant.

Robert E. Wilson, District Attorney, Susan Brooks, John H. Petrey, Assistant District Attorneys, for appellee.

The evidence of other crimes is not rendered admissible simply because it meets the two criteria set out in French v. State, 237 Ga. 620, 621 (229 SE2d 410) (1976). It must be relevant to an issue. See Walraven v. State, 250 Ga. 401, 407 (4b) (297 SE2d 278) (1982); see also Hunter v. State, 177 Ga. App. 326, 327 (339 SE2d 381) (1985), Beasley, J., dissenting. Otherwise it is forbidden. See also OCGA § 24-9-20 (b).


text:
    73138.
    BANTHER v. THE STATE.
    (355 SE2d 709)
   Benham, Judge.

This appeal is from appellant’s conviction of child molestation. The victim was his stepdaughter.

1. In his first enumeration of error, appellant asserts that the trial court erred in admitting the testimony of a caseworker from the Department of Family and Children Services regarding admissions made by appellant during an interview with the caseworker. The ground on which appellant contends the testimony should have been excluded is that appellant was not informed prior to the interview of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

This issue is controlled adversely to appellant by Grogins v. State, 154 Ga. App. 606 (2) (269 SE2d 98) (1980): “In the first place, the caseworker was not a police officer or an agent of the state charged with law enforcement. The evidence indicates that the caseworker was attempting to [determine whether appellant’s stepdaughter should be placed in foster care]. Thus, insofar as the caseworker was concerned, [appellant] was at most a potential criminal defendant. Where a possible criminal defendant has not been taken into custody or otherwise deprived of [his] freedom of action in any significant way at the time the answers were given by [appellant] to the worker’s initial inquiry, the custodial interrogation condemned by Miranda has not occurred. [Cits.] Moreover, a Miranda warning had not been required because the caseworker was not ‘a law enforcement officer.’ [Cit.]” There is no evidence in the record to show that appellant’s presence at the interview was not voluntary or that he was in any significant way deprived of his freedom of action. A deputy sheriff present at the interview testified that appellant was not in custody, that he was free to leave at any time, and that he did leave at the conclusion of the interview. We do not find persuasive appellant’s argument that the presence of a uniformed sheriff’s deputy during the interview requires the conclusion that appellant was in custody. The deputy did not conduct the interview, did not ask any questions, and was present at the request of the caseworker, who testified that she asked the deputy to stay for her protection. Under those circumstances, we find the presence of the officer to be without significance. The first enumeration of error is without merit.

2. Appellant’s second enumeration is directed at the admission of the same testimony with which the first enumeration was concerned. The alternative basis for exclusion of the testimony was the State’s failure to provide appellant with a copy of the statement to which the caseworker testified. OCGA § 17-7-210, the statute under which appellant made a timely demand for production of statements, applies only when the statement is given while in custody. Webb v. State, 179 Ga. App. 101 (2) (345 SE2d 648) (1986); Yeargin v. State, 164 Ga. App. 835 (6) (298 SE2d 606) (1982). As noted in Division 1, there is no evidence that appellant was in custody when the statement was given. Contrary to appellant’s assertion, the trial court did not rule that appellant was in custody: the judge agreed that the statement would be inadmissible if made while in custody and not produced, then told defense counsel that he was construing the evidence concerning appellant being in custody and overruling the motion to exclude the testimony. That constitutes a ruling that appellant was not in custody, not that he was. Since appellant was not in custody when the statement was made, the State’s failure to. produce it did not make the testimony inadmissible.

3. Appellant’s last two enumerations of error are directed to the trial court’s denial of appellant’s motion for a directed verdict of acquittal. The grounds asserted in support of the motion were that the evidence did not show that acts of molestation occurred within four years prior to the return of the indictment and that the evidence did not show that any acts of molestation occurred in Walker County during the four years prior to the return of the indictment. We do not find those grounds meritorious. The evidence showed that the victim had lived in the same home in Walker County for about six years prior to the return of the indictment, that appellant had fondled her breasts and vaginal area on several occasions, that the molestation had occurred in their home, and that at least one such incident occurred within a year prior to the return of the indictment. That being so, we find no error in the trial court’s denial of appellant’s motion for a directed verdict of acquittal. Peavy v. State, 179 Ga. App. 397 (346 SE2d 584) (1986).

Decided March 12, 1987

Rehearing denied March 27, 1987

Christopher A. Townley, for appellant.

David L. Lomenick, Jr., District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    73328.
    THOMPSON v. WISE.
    (356 SE2d 40)
   Benham, Judge.

After appellant’s house was damaged by a falling tree, he entered into a contract with appellee pursuant to which appellee would do certain repairs on the house. A dispute arose concerning the quality of appellee’s work, and appellant refused to pay under the contract. Appellee brought suit and appellant counterclaimed. The parties eventually entered into an agreement to submit to arbitration the question of the cost to finish the repairs to appellant’s house. Pursuant to that agreement, an expert arbitrator would be named by the trial court; and the arbitrator would meet with counsel, would be provided a list of specific items to consider, would have an opportunity to inspect the house and the work done, and would then issue a report in which, as to each specific item, he would indicate whether the work done was satisfactory and, if not, the cost of repair. The arbitrator did what was required of him under that agreement and submitted a report which was reviewed by both parties and by both counsel. The report indicated that the cost of repair was $4,775. According to the agreement, appellant would be required to pay within 10 days of the arbitrator’s report the difference between the amount in the report and the amount stipulated as the balance due under the original contract. When appellant did not pay within 10 days, appellee filed a motion for summary judgment seeking enforcement of the agreement. Appellant responded with a cross-motion for summary judgment, supported by an affidavit from the arbitrator in which he swore that he had only considered the material and base labor costs in formulating his estimate, and that it would cost $12,000 to induce a contractor to make the necessary repairs. The trial court, citing a stipulation in this case to the effect that the arbitrator would not be called upon for further evidence after issuing his report, refused to consider the affidavit and granted summary judgment to appellee. That order is the subject of this appeal.

1. The first issue to be considered is the validity and effect of the stipulation pursuant to which the trial court refused to consider the affidavit appellant submitted. “Parties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, and no litigant will be heard to complain unless it be made plainly to appear that the consent of the compláining party was obtained by fraud or mistake. [Cits.]” McDonald v. Hester, 115 Ga. App. 740, 741 (155 SE2d 720) (1967). The trial court’s finding that the parties had entered into such a stipulation is supported by the uncontradicted statement of the stipulation in an affidavit by appellee’s counsel and by the trial judge’s personal recollection of the stipulation and his role in bringing it about. Therefore, we find untenable appellant’s position that the only matters of record to be considered are the arbitration agreement and actions subsequent thereto. It has long been recognized that parties to an arbitration agreement may stipulate to its binding effect and may agree not to go behind or challenge the arbitrator’s decision. Crabtree v. Green, 8 Ga. 8 (6) (1850). Appellant made such an agreement and we find no error in the trial court’s refusal to consider the affidavit appellant procured from the arbitrator.

2. Without the affidavit from the arbitrator, of course, there is no evidence to support appellant’s argument that the arbitrator’s report should be set aside because of a mistake. However, as an alternative ground for our decision, we find that appellee would have been entitled to judgment even if the affidavit had been considered.

“Where the parties to a contract agree that the decision of a third person on a matter connected with the execution of a contract shall be final and conclusive, his decision is binding on the parties, as to those matters he is authorized to determine, except in the case of fraud, gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. [Cit.]” Skinner v. Smith, 120 Ga. App. 35, 36 (169 SE2d 365) (1969). See also Fisher v. Gause, 236 Ga. 663 (2) (225 SE2d 2) (1976); Locklear v. Payne, 124 Ga. App. 845 (1) (186 SE2d 439) (1971).

Appellant has not shown such a mistake as would authorize setting aside an arbitrator’s award. What appellant has shown is a disagreement, after the fact, with the factors to be considered by the arbitrator. The arbitration agreement called for the arbitrator to “indicate the cost of repairing, correcting or completing” any items he found to have been omitted or done unsatisfactorily. Counsel for the parties discussed with the arbitrator the specific items to be considered and the scope of his consideration. After the inspection and the completion of the report, both parties and their counsel reviewed the report and initialed it. In the affidavit appellant procured from the arbitrator, he states what his understanding was concerning the scope of the cost estimate he was asked to produce, then states that it would cost more than the amount of that estimate to induce a contractor to undertake the work. That does not show a mistake by the arbitrator. If there was a mistake in this case, it was appellant’s in failing to ensure complete agreement, prior to the arbitrator’s preparation of his report, on the scope of the costs to be considered. Considering the record as a whole, including the affidavit of the arbitrator, there is no evidence that the award of the arbitrator was the result of so palpable a mistake that the award should be set aside. Fisher, supra.

Decided March 10, 1987

Rehearing denied March 27, 1987

Samuel B. Ozburn, for appellant.

John B. Begonia, Jr., for appellee.

Judgment affirmed.

Been, P. J., and Beasley, J., concur.


text:
    73046.
    BRADFORD v. THE STATE.
    (355 SE2d 735)
   Benham, Judge.

This appeal is from appellant’s conviction of armed robbery.

1. In his first enumeration of error, appellant complains of allegedly prejudicial closing argument by the prosecuting attorney. Our review of the transcript reveals no error in that regard: the alleged misstatements either were corrected, were permissible inferences or conclusions from the evidence, or were the subject of nonspecific objections on which no rulings were invoked. See Watts v. State, 155 Ga. App. 376 (1) (271 SE2d 29) (1980).

2. There was no error in denying appellant’s motion in limine directed at the circumstances of his arrest. Although appellant is correct that testimony that he pointed a sawed-off shotgun at the arresting officers would tend to show the commission of a separate crime (aggravated assault on a police officer), the case he cites in support of his argument, Barfoot v. State, 173 Ga. App. 461 (326 SE2d 791) (1985), clearly holds that such evidence is admissible.

3. The essence of appellant’s third enumeration of error is that the State should be estopped from prosecuting him because of an eight-month pre-indictment delay and because agents of the State promised that he would not be prosecuted if he cooperated in an unrelated investigation in which he was not implicated. The record, however, does not support appellant’s claim of estoppel or his claim of prejudice resulting from pre-indictment delay. All appellant has shown is that he was asked to assist in an unrelated investigation and that a key statement by an eyewitness in the present case was not provided to the district attorney for a period of eight months while the unrelated investigation in which his cooperation was sought was pending. Appellant has not shown a firm agreement not to prosecute or any prejudice resulting from the eight-month delay between his arrest and indictment. See State v. Madden, 242 Ga. 637 (250 SE2d 484) (1978); Harris v. Hopper, 236 Ga. 389 (224 SE2d 1) (1976). We find no error in the denial of appellant’s motion to dismiss the indictment.

4. The fourth enumeration of error asserted by appellant raises the general grounds. The evidence authorized the jury to find that the victim was robbed of cash and a pistol by several men who got out of a Ford Fairlane after using a flashing blue light to get the victim to stop his car. One of the men carried a sawed-off shotgun. Appellant and several others were arrested the day after the robbery. They were in a Ford Fairlane from which the victim’s pistol was thrown and in which a blue light was found. Appellant got out of the car, pointed a sawed-off shotgun at the arresting officers, then ran away, only to be apprehended soon thereafter. An extrajudicial statement by an eyewitness, admissible as substantive evidence under Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), identified appellant as one of the robbers. That evidence authorized any rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-8-41.

5. Appellant claims that he was not permitted to question a police officer concerning the suppression of the eyewitness’s statement and that he was, thereby, deprived of his right to cross-examine the officer. “ Tn order to be in a position to complain of the abridgement of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions. [Cits.]’ Counsel in the instant case did neither act required of him. As the scope of cross-examination rests largely within the sound discretion of the judge, we find no merit in this enumeration. [Cit.]” Berry v. State, 163 Ga. App. 705 (4) (294 SE2d 562) (1982).

6. Appellant moved at trial for a mistrial on the ground that a witness violated the rule of sequestration by conversing with the previous witness prior to entering the courtroom. He argues on appeal that the witness’ testimony should have been excluded.

Decided March 17, 1987

Rehearing denied March 30, 1987

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, J. Clayton Culp, Assistant District Attorneys, for appellee.

The violation of sequestration does not render the offending witness incompetent to testify. Jordan v. State, 247 Ga. 328 (10) (276 SE2d 224) (1981). Appellant’s “recourse was to seek instructions from the court informing the jury that the . . . violation of the rule should be considered in determining the weight and credit to be given to the testimony of the witness. [Cits.]” Wright v. State, 246 Ga. 53 (1) (268 SE2d 645) (1980). Appellant did not seek such recourse, and we find no error in the denial of his motion for mistrial or in the trial court’s failure to exclude the testimony.

7. The indictment under which appellant was tried contained the names of two co-indictees who were not tried with appellant. He contends on appeal that the trial court erred by refusing to mask the names of the co-indictees before sending the indictment out with the jury. The basis for his argument is that the appearance of those names could have given the jury the impression that a conspiracy existed between him and the co-indictees. Appellant cites no authority in support of his position that the names should have been masked, and we have found none. A review of the record shows that the jury was much more likely to get an impression of conspiracy and joint commission of a crime from the evidence than from the indictment. Given the state of the evidence and the trial court’s instruction that the jury was to be concerned only with appellant’s innocence or guilt and not that of his co-indictees, we find no error in the trial court’s refusal to require that the indictments be masked.

8. Finally, appellant contends that his character was put into issue by a police officer’s testimony that when appellant pointed a sawed-off shotgun at him, he knew who appellant was. The fact that a defendant is known to the police does not put his character in issue. Kirkland v. State, 173 Ga. App. 687 (5) (327 SE2d 808) (1985).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs in judgment only as to Divisions 1, 3, 5 and 6.


author: Beasley, Judge.

text:
    73062.
    CAROD BUILDING SERVICES et al. v. WILLIAMS.
    (355 SE2d 723)
   Beasley, Judge.

The superior court affirmed a Board of Workers’ Compensation order, affirming the administrative law judge’s continuation of temporary total disability payments to claimant, on the ground that he had not failed to cooperate with rehabilitation efforts. We granted discretionary appeal.

Williams, a carpenter, was injured in 1978 while working for Carod on a construction job. A ladder collapsed and he fell, injuring his back, as a result of which a lumbar disc operation was performed in 1980. At that time, his doctor gave him a 5% permanent partial disability. In 1982, payments were stopped by the employer/insurer on the ground of a change in condition, i.e., claimant could return to work. After hearing, the ALJ directed continued payments stating that “it seems to me he is not [totally disabled] and can do light work, and when light work is found for him I direct the claimant to either do the work or we will have a hearing and his compensation will terminate.”

Thereafter, a second doctor increased claimant’s disability rating to “12% to the whole man.” A rehabilitation plan was approved by award of June 1984, at which time Williams was 64, in which claimant was “directed to cooperate with the designated . . . rehabilitation supplier” and advised that his failure to do so might result in suspension of the benefits. The plan noted that Williams was unable to return to his former occupation and had physical restrictions in that he could do no lifting in excess of 10 pounds and no repetitive lifting.

In December 1984, the employer obtained an interlocutory order from the board allowing a cessation of benefits due to the employee’s “alleged failure to cooperate with rehabilitation efforts in compliance with OCGA § 34-9-200 (e),” and referring the matter to the same ALJ for hearing. The ALJ stated at the outset that the hearing was for determining whether or not there had been a failure of cooperation in rehabilitation. Counsel for appellants agreed this was the purpose.

The ALJ made findings of fact concerning claimant’s following of job leads provided by the rehabilitation specialist pursuant to the plan and concluded: “I don’t think the hearing displayed such a lack of cooperation with vocational rehabilitation as to justify stopping payments.” He then continued: “I will leave it up to the employer/ insurer as to whether to reinstate vocational rehabilitation but I think it is going to take more than just furnishing names to the claimant of possible jobs. I think an employer has got to be found that will hire a handicapped man and the claimant needs to be assisted into getting into the job. If the old employer is still located in Georgia, it looks like he could provide such a job.”

Employer/insurer appealed to the Board on the ground that the ALJ made errors in findings of fact and employed the wrong legal theory with regard to rehabilitation. There was no mention in the appeal to the Board that the ALJ failed to consider “change of condition” and this enumeration of error will not be considered, not having been properly raised below. City of Buford v. Thomas, 179 Ga. App. 769, 772 (2) (347 SE2d 713) (1986).

The question is whether an incorrect legal standard was applied to the consideration of claimant’s alleged failure to cooperate in obtaining employment.

OCGA § 34-9-200 (a) as then in effect provided: “The employer shall furnish the employee . . . vocational rehabilitation . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to . . . restore the employee to suitable employment; . . .” Subsection (e) provided: “The refusal of the employee without reasonable cause to accept. . . vocational rehabilitation . . . when ordered by the board, shall entitle the board in its discretion to suspend, reduce, or limit the compensation otherwise payable . . . unless in the opinion of the board the circumstances justify the refusal, . . ."

OCGA § 34-9-240 provides: “If an injured employee refuses employment procured for him and suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.”

The evidence produced at the ALJ hearing, viewed in a light most favorable to the claimant, the prevailing party before the board, and with every presumption in favor of the board’s decision indulged, Poulnot v. Dundee Mills Corp., 173 Ga. App. 799, 800 (328 SE2d 228) (1985), revealed that Williams had participated in the preparation of the plan and acquiesced in it. The rehabilitation specialist provided him with a number of leads to specific jobs, and Williams was then responsible for following up on these possibilities. Appellants’ argument is that the evidence compels finding that the claimant’s actions were not in good faith, thus unjustifiably preventing the offer of a job or unjustifiably avoiding a job. It is true that lack of cooperation so as to foreclose a firm offer could constitute unjustifiable refusal of suitable employment. It depends on the circumstances.

Williams did not obtain a job as a result of these leads. There is evidence that he did apply for several of them and was not hired, either because no offer was forthcoming or the job was filled by someone else. Much was made by employer/insurer of the Bulloch Hospital orderly-type position in which the person would push a cart and make hospital deliveries of small packages not weighing above Williams’ lifting capacity. Although employer/insurer contended that Williams never actually applied for the job but merely went by the hospital, pushed a cart he saw (which the ALJ stated may or may not have been the cart involved with the job) and then left, there is a verification that he did apply for the job and there is no evidence that he was offered or refused an interview or opportunity for the position. He was also given a lead to a cabinetmaker’s job, for which he did go and interview. Apparently he discussed with the owner and related at the hearing that, due to his medication of Darvocet, a drug bearing a label indicating a need for caution while driving and operating machinery, he did not believe he should take that job. Whether as a result of this or not, no job offer was forthcoming from this lead. There was also a security guard job at Georgia Southern. Although Williams expressed at the hearing and apparently to his rehabilitation specialist that he did not wish to carry a gun, there is no evidence that he related this to the potential employer or that there was even an interview, but there was an application filed by him for the job. No offer was made. Also, Williams was referred to the State Employment Agency; he interviewed but received no referrals. There was a job at West Lumber Company for which he applied, but he refused to take the prerequisite lie detector test.

As quoted above, the ALJ’s judgment was in effect that this was justified. The employer/insurer says not.

Employer/insurer contends that the ALJ erred by implying that what was required to show lack of cooperation was an actual job offer and the subsequent refusal by claimant of suitable employment. As we discern from a reading of the order, however, which to avoid problems of interpretation should more clearly set out the conclusions of law and the law relied upon, the language complained of by appellants, set out above, appears after the ALJ had removed from the employer/insurer the obligation to provide further rehabilitation efforts for Williams and appears to be advisory with regard to their efforts to find a job for Williams. This added portion does not mean it was the standard used by the ALJ to decide if there had been cooperation with regard to the plan, which is another question. OCGA § 34-9-200 (e) provided that even upon a finding of refusal to accept vocational rehabilitation (here, cooperate) without reasonable cause, the board is merely authorized to alter the compensation “in its discretion” unless in its “opinion” the “circumstances justify the refusal.” These broad avenues of discretion are limited only by the standard in OCGA § 34-9-240, which requires cessation of compensation when a suitable job is procured and employee unjustifiably refuses it. Liberty Mut. Ins. Co. v. Neal, 140 Ga. App. 585 (231 SE2d 574) (1976). That is not the case here.

Decided March 13, 1987

Rehearing denied March 30, 1987

Michael K. Jahlonski, Anthony P. Griffin, Judy Farrington Aust, for appellants.

James T. Williams, pro se.

In Clark v. Ga. Kraft Co., 178 Ga. App. 884 (345 SE2d 61) (1986), the employer had offered a job which the ALJ found suitable for the employee’s diminished physical capabilities. The ALJ also concluded that his refusal of it was justified on the sole ground that the job offered no reasonable opportunity for advancement and did not correlate with his interests. This was upheld: “Under this statute [OCGA § 34-9-240] the board is empowered to determine whether a refusal of employment is justified. [Cits.] Such a determination is a discretionary one. [Cits.] In fact, the board is vested with a broad discretion in determining whether proffered employment is refused justifiably. [Cit.] In this regard, we note that the State Board of Workers’ Compensation is an administrative agency, [cit.] and that the courts must give due deference to the wisdom of the board in deciding discretionary issues within its area of expertise. [Cit.]” Clark, supra at 885.

It appears that the ALJ and the board used the appropriate standard in evaluating Williams’ cooperation with the rehabilitation plan.

Judgment affirmed.

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

       This section was rewritten and split into two sections, OCGA §§ 34-9-200 and 34-9-200.1, in 1985, effective July 1, 1985. Ga. L. 1985, p. 727.


author: McMurray, Presiding Judge.

text:
    73073.
    PATTERSON v. LANHAM et al.
    (355 SE2d 738)
   McMurray, Presiding Judge.

James Thomas Patterson, Sr. brought an action against William C. Lanham, Stanley E. Sacks and the law firm of Sacks, Sacks & Larkin for legal malpractice. Plaintiff alleged defendants negligently represented him in various anti-trust lawsuits in which he did not prevail and, thereby, defendants breached their contract of employment. Defendants answered, denying the material allegations of the complaint, and filed motions for summary judgment. In support thereof, defendants Lanham and Sacks submitted their affidavits wherein they deposed that they represented plaintiff in accordance with the standard of skill and care required by the legal profession generally under the circumstances in which they were confronted. Defendant law firm submitted the affidavit of Girard C. Larkin, Jr., an attorney who was associated with defendant law firm and is familiar with the representation which gave rise to plaintiff’s claim for legal malpractice against defendants. Mr. Larkin deposed that defendants Sacks and Lanham and defendant law firm exercised actions which “were in accordance with the standards of care and skill exercised by the legal profession generally under similar conditions and like surrounding circumstances, and that degree of care and skill exercised by the legal profession generally was adhered to by them and by me in every respect.”

Plaintiff opposed defendants’ motions for summary judgment, but he did not bring forth expert evidence concerning defendants’ want of professional skill and diligence. Instead, plaintiff responded in his affidavit averring that he had been unable to locate any attorney willing to provide an affidavit to refute the affidavits filed by defendants. The trial court granted defendants’ motions for summary judgment based on uncontradicted affidavits filed by defendants and plaintiff appeals pro se. Held:

1. Plaintiff contends the trial court erred in failing to grant a continuance in order to allow him the opportunity to file affidavits in opposition to defendants’ motion for summary judgment.

“We have held ‘(t)he grant or denial of a continuance is a matter within the discretion of the trial judge and unless clearly abused will not be interfered with. Smith v. Davis, 121 Ga. App. 704, 705 (175 SE2d 28). This applies in summary judgment proceedings. Code Ann. § 81A-156 (f) [now OCGA § 9-11-56 (f)].’ Calcutta Apts. v. Linden & Deutsch, 131 Ga. App. 743, 744 (206 SE2d 559) (1974).” Donehoo v. Phillips, 162 Ga. App. 671 (1), 672 (292 SE2d 542). In the case sub judice, after defendants filed their motions for summary judgment, over 3-Vi months elapsed before the trial court entered its order granting defendants’ motions. Under these circumstances, we find no abuse of discretion in the trial court’s denial of plaintiff’s request for additional time in which to file counter affidavits.

2. Plaintiff objects to the consideration of the affidavits filed by defendants on the grounds that only one of the attorneys, defendant Lanham, is a member of the State Bar of Georgia. The record shows that defendant Sacks and affiant Larkin are experienced attorneys and are licensed to practice law in the Commonwealth of Virginia. Both defendant Lanham and affiant Larkin averred that the skill and care utilized in the underlying lawsuits by defendants were comparable to that required in the legal profession generally. Under these circumstances, we find the affidavits in question sufficient as a matter of law to oppose plaintiff’s allegation of legal malpractice. Kellos v. Sawilowsky, 254 Ga. 4 (325 SE2d 757).

Further, plaintiff contends that the affiants were not qualified as experts in the legal profession. “Nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession, although the special knowledge required to qualify as an expert may be derived from experience as well as study. See Dennis v. State, 158 Ga. App. 142, 143 (3) (279 SE2d 275); Carter v. Marble Products, 179 Ga. 122 (1), 124-125 (175 SE 480). Where one has been formally educated in a particular trade or profession additional experience by application of that knowledge to a specific problem is not necessary in order to sustain one as an expert.” Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 76 (1) (286 SE2d 61). In the case sub judice, it is undisputed that the affiants have received intensive legal training and have been licensed to practice law in at least one state. Further, each affiant has had considerable experience in trial advocacy and, more specifically, defendant Sacks was recognized by plaintiff as being an expert in the field of anti-trust law. Under these circumstances, we find plaintiff’s argument to be merit-less. Affiants were properly qualified as experts in the field in which they formerly represented plaintiff.

Decided March 17, 1987

Rehearing denied March 30, 1987

James T. Patterson, Sr., pro se.

Clark H. McGehee, for appellees.

3. Plaintiff asserts several convoluted arguments in support of his remaining enumeration of errors challenging the propriety of the trial court’s order granting summary judgment in favor of defendants.

“It is presumed that [defendants] performed legal services for plaintiff in an ordinarily skillful manner. Hughes v. Malone, 146 Ga. App. 341, 346 (247 SE2d 107).” Mims v. Wardlaw, 176 Ga. App. 891 (3) (338 SE2d 866). This presumption was reinforced in the case sub judice by the affidavits filed wherein it was deposed that defendants represented plaintiff with the requisite degree of skill and care. “In view of the failure of plaintiff to counter [defendants’] evidence with expert legal testimony establishing the parameters of acceptable professional representation, the trial court properly granted [defendants’ motions] for summary judgment. Howard v. Walker, 242 Ga. 406 (249 SE2d 45).” Mims v. Wardlaw, 176 Ga. App. 891 (3), 892, supra. See Thomas v. Carlisle, 179 Ga. App. 315, 316 (3) (346 SE2d 79).

Judgment affirmed.

Carley and Pope, JJ., concur.