text:
    74901.
    WEBB v. THE STATE.
    (360 SE2d 643)
   Deen, Presiding Judge.

Appellant was convicted of theft by taking of a boat motor. The crime victim owned a boat and motor, which he kept in an area of his apartment complex specially designated for boats and related items.

Shortly after midnight on October 29, 1985, Mr. Brown, a resident of the complex, observed an automobile with an open trunk parked in front of his apartment. When he went for a walk a short time later, he observed two young men working at the rear of the victim’s boat. He called the police. When the officers arrived, the men fled on foot. One was immediately apprehended by an officer and was identified as the young man who had been observed placing the boat motor cover in the trunk of the car. While Mr. Brown was watching the incident, the appellant ran into him. He identified him at trial. Brown also observed the boat motor lying on the ground and recalled that earlier in the evening he had seen it attached to the boat. Pliers and a pair of vise grips were found beside it, and the motor cables were damaged. The automobile that Brown had observed earlier was parked directly in front of the boat. A subsequent examination of the motor cover revealed two identifiable sets of prints, one belonging to appellant and the other to the co-defendant, who entered a guilty plea. The co-defendant testified at trial and refused to incriminate Webb by claiming that he alone had removed the motor from the boat. Appellant relied upon an uncorroborated alibi and offered no explanation as to how his palm print got on the motor cover.

1. In reviewing the overwhelming evidence of appellant’s guilt, we find that the court below did not err in denying his motion for a directed verdict of acquittal. It is not error for the court to refuse to direct a verdict when “viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Wright v. State, 253 Ga. 1, 3 (316 SE2d 445) (1984); Rautenberg v. State, 178 Ga. App. 165 (342 SE2d 355) (1986).

Decided September 8, 1987.

Charles C. Grile, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

2. The trial court’s refusal to charge the jury on criminal attempt did not constitute reversible error. The Uniform Rules for the Superior Courts, Rule 10.3, requires all requests to charge to be submitted to the court at the commencement of trial. Appellant did not make his request to charge until the third day of trial. See United States v. Johnson, 713 F2d 633 (11th Cir. 1983).

Assuming arguendo that a timely request was made, the evidence showed that a theft had occurred. Appellant argues that although the motor was moved, the movement was not sufficient to constitute a theft. We must disagree. Only a slight change in location from where goods are left by the owner is sufficient proof of asportation, when coupled with intent to steal, to complete the crime of larceny. Brown v. State, 135 Ga. App. 323 (217 SE2d 500) (1975); Hawkins v. State, 130 Ga. App. 277 (202 SE2d 837) (1973).

3. As appellant did not raise any objection to the District Attorney’s closing argument in the court below, his enumeration of error contending that the argument shifted the burden of proof will not be considered on appeal. Morris v. State, 179 Ga. App. 228 (345 SE2d 686) (1986).

Judgment affirmed.

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    74909.
    HALLFORD v. KELLEY et al.
    (360 SE2d 644)
   Deen, Presiding Judge.

Appellant Linda Hallford’s husband was an employee of appellee Slash Pine Electric Membership Corporation, of which appellee Kelley was general manager. Approximately one year previous to the time of the incident which gave rise to the action below, Mr. Hallford had sustained an on-the-job injury for which, for some period of time, he had drawn workers’ compensation benefits. He had returned to work but allegedly had had some difficulties (whether or not related to the injury is not clear from the record) which, according to unclear but nevertheless apparently undisputed evidence, had led to a discussion or discussions between Mr. Hallford and appellee Kelley regarding the possibility of Mr. Hallford’s being placed on disability status and drawing disability insurance benefits.

According to Mrs. Hallford’s deposition testimony, her husband requested that she go to Kelley’s office and question him regarding the possible placing of Mr. Hallford on disability, and what the disability benefits, expressed in dollars and cents, would amount to. Again according to Mrs. Hallford, she went to Kelley’s office unannounced, closed the door to the secretary’s office, and requested — or demanded, according to Kelley’s deposition — a complete statement as to Kelley’s “intentions toward” her husband. There was undisputed testimony that Kelley declined to discuss the matter with Mrs. Hallford unless her husband were also present. During the remainder of the impromptu conference, which the parties agreed lasted approximately five minutes (or, at a maximum, ten), Mrs. Hallford continued to press Kelley for the desired information and he continued to refuse to discuss it, for the reasons previously stated.

At this point the testimony regarding the details of the incident is in hopeless conflict. According to Mrs. Hallford, Kelley called her a “troublemaker” and rose from behind his desk and, in a loud and angry tone, asked her to leave the office. Still according to Mrs. Hallford, she moved a step or so towards the door but retorted, “You can’t push me out of here!”, whereupon Kelley simultaneously took a step towards her and picked up the telephone, replying (in partial paraphrase), “Like hell I can’t! I’m going to call the police to come and make you leave.” Mrs. Hallford testified that she then left the office in such a nervous state that she had to consult a physician later that day, and had continued to see that physician and also a psychologist. She subsequently acknowledged, however, that either she or her husband (or both) had already consulted these professionals prior to the incident complained of. She asserted that during the entire interview with Kelley she had spoken quietly and maintained a “lady-like” demeanor.

According to Mr. Kelley’s deposition testimony, he was entering his office by a back door when Mrs. Hallford pushed past his secretary, who was standing in the front door. Kelley testified that, after inviting Mrs. Hallford to sit down, he seated himself at his desk and asked what her business was. According to Kelley, he could not remember whether Mrs. Hallford did not sit down at all or had sat briefly and then risen and stood over his desk in what he regarded as a threatening manner. According to Kelley, he declined to discuss her husband’s situation without the latter present and, when Mrs. Hallford continued to insist, asked her to leave. When she refused, he lifted the telephone to call the police; Mrs. Hallford leaned over his desk and said, “I’ll get you for this!” and left the office before he had actually dialed the number of the police department. According to Kelley, once he had sat down at the beginning of the incident, he remained seated the entire time. He denied that he had used opprobrious or profane language to Mrs. Hallford or had raised his voice to her. He further testified that, since he had recently undergone major surgery, and was also receiving treatment for diabetes at the time of the incident with Mrs. Hallford, he had been left in a physically shaken condition by appellant’s conduct. The parties agree that there was no witness who either saw or overheard the incident, as the secretary had left her office during that time.

Mrs. Hallford filed an assault action in the Clinch County Superior Court, alleging “certain injuries to her body and mind” and the infliction of “both physical pain and mental anguish.” She named as defendants both Kelley and Slash Pine, as principal for whom Kelley was agent. Appellees moved for summary judgment, and the trial court granted the motion. Mrs. Hallford appeals the award of summary judgment to the defendant/appellees. Held:

On motion for summary judgment, the evidence, with all reasonable inferences therefrom, must be construed in the light most favorable to the non-moving party: here, Mrs. Hallford. OCGA § 9-11-56. The movant, when defendant, must pierce the plaintiff’s pleadings and show that there is no genuine issue of material fact to be resolved by the jury or other factfinder. Id.

Our exhaustive review of the entire record in the instant case reveals that, while there is much conflict in the details of the testimony, there is no contention that Mr. Kelley in any way physically touched Mrs. Hallford or even made an overt motion to do so. There is only Mrs. Hallford’s allegation that, as he picked up the telephone, he took a step in her direction, whereas Mr. Kelley testified that he not only did not move in her direction but was seated during the entire incident. Kelley further alleges that it was Mrs. Hallford, not he, who made threatening remarks and movements. The entire evidentiary situation thus degenerates into the proverbial “swearing contest.”

In Capitol TV Svc. v. Derrick, 163 Ga. App. 65 (293 SE2d 724) (1982), this court held that an assault occurs when “all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another.” Even construing the conflicting deposition testimony in the light most favorable to Mrs. Hallford (as, of course, we must), it is difficult for us to conclude that being called a “troublemaker,” being told that the police would be called to evict her, and possibly being moved towards while her adversary was at the same time dialing a telephone number, would create such an apprehension of violent injury as reasonably to be considered an assault.

We note further that both parties cite cases which deal with verbal assault arguably amounting to the intentional infliction of emotional distress. The cases cited involve the use of language or actions which — even if, arguendo, the plaintiffs allegations are absolutely true — are light years removed in offensiveness from the words and acts allegedly employed by Mr. Kelley towards Mrs. Hallford. In Sanders v. Brown, 178 Ga. App. 447 (343 SE2d 722) (1986), this court held at 449 et seq., that “in those cases where recovery has been authorized for intentional infliction of emotional distress, the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.” See, e.g., Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975); McCoy v. Ga. Baptist Hosp., 167 Ga. App. 495 (306 SE2d 746) (1983); American Fin. & Loan Corp. v. Coots, 105 Ga. App. 849 (125 SE2d 689) (1962).

Decided September 8, 1987.

Douglas W. Mitchell III, for appellant.

J. Baker McGee, Jr., Jack J. Helms, for appellees.

We find no error in the trial court’s award of summary judgment to defendants.

Judgment affirmed.

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


text:
    74920.
    FLUDD v. TILLER et al.
    (360 SE2d 647)
   Deen, Presiding Judge.

The appellant, Willie Fludd, commenced this action against Frank Tiller and J. B. Dykes (as police officers), on November 30, 1984, seeking damages for a chest wound he sustained when Tiller apprehended a criminal suspect. On February 17, 1983, Fludd had commenced an action in the United States District Court for the Southern District of Georgia, against the same defendants and based on the same incident. The trial court granted the appellees’ motion to dismiss, because of the pending federal action involving the same subject matter, parties, and cause of action, and this appeal followed. Held:

Comparison of the two complaints shows the same set of operative facts, the same parties, the same amount of damages sought, and essentially the same cause of action in the federal action and this state action. However, the pendency of a prior federal action genérally is not a bar to a state action by the same plaintiff against the same defendant for the same cause of action. Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 (96 SE 424) (1918); Barkley-Cupit Enterprises v. Equitable Life &c. of the U. S., 157 Ga. App. 138 (276 SE2d 650) (1981). Under these circumstances, the trial court certainly had the discretion to stay the state proceeding until the disposition of the pending federal action, Bloomfield v. Liggett & Myers, 230 Ga. 484 (198 SE2d 144) (1973), but outright dismissal at this juncture was inappropriate.

Decided September 8, 1987.

John P. Batson, Sam B. Nicholson, for appellant.

Robert C. Daniel, Jr., for appellees.

Judgment reversed.

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


text:
    74927.
    74928.
    BIGBY v. THE STATE. LUNDY v. THE STATE.
    (360 SE2d 751)
   Deen, Presiding Judge.

On August 20, 1985, a trailer loaded with 115 bales of scrap aluminum was removed from the property of General Extrusion, Inc., in Union City and was later discovered in a wooded area in DeKalb County, attached to a tractor bearing the name “Tiffany Trucking.” The tractor belonged to Freddie Henderson Lundy, who claims he had answered a call for help from a cab with mechanical difficulties on the expressway in DeKalb County. When the police arrived, it was being unloaded by Lundy and Ralph Bigby. The men were indicted in Fulton County on two counts of theft by taking. Lundy was found guilty on both counts and Bigby on count two. The jury was unable to reach a verdict as to count one (theft of the Matlock trailer) against Bigby, and a mistrial was declared as to that count.

1. Appellants contend that count two of the theft by taking charge should have been dropped because both counts arose out of the same transaction. They rely upon the holding in Hubbard v. State, 168 Ga. App. 778 (310 SE2d 556) (1983). We find that Hubbard holds that there can only be one sentence and conviction if several items are stolen as part of a continuous criminal act. Bigby was convicted only on count two and cannot be retried on count one, which resulted in a mistrial. Lundy can be convicted and sentenced on only count one, and his conviction on count two must be set aside.

2. The evidence was sufficient to support appellants’ convictions of theft by taking. “ ‘To convict a defendant based upon recent possession of stolen goods, it must be shown the goods were stolen and there must be an absence of or an unsatisfactory explanation of that possession. [Cit.] The proof of these facts beyond a reasonable doubt creates a presumption or permissible inference of the defendant’s guilt, that is that the defendant himself committed the crime charged and proven.’ [Cit.]” Henderson v. State, 162 Ga. App. 345, 346 (291 SE2d 422) (1982).

The evidence in the instant case satisfied the standard of proof set forth above. Lundy testified as to how he came into possession of the trailer and claims that he drove it to his mother’s house to repair the broken back door. He claims he picked up Bigby en route to assist him. When they were moving the scrap aluminum to repair the door, the police arrived. An employee from the Bonnell Company testified that he had seen the trailer earlier in the day and that there was no damage to the rear doors. “ ‘ “It was within the jury’s province to believe that appellant’s explanation of his possession advanced at trial was not a reasonable or satisfactory one.” ’ ” Barr v. State, 166 Ga. App. 7 (303 SE2d 132) (1983).

3. Under OCGA § 17-2-2 (h) venue can be established “in any county in which the evidence shows beyond a reasonable doubt that [the crime] might have been committed.” Where venue is not contested at trial, only slight proof is needed. Amerson v. State, 177 Ga. App. 97, 99 (338 SE2d 528) (1985). OCGA § 16-8-11 provides that the crime of theft by taking “shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” The evidence showed that the trailer containing the scrap aluminum was stolen from General Extrusion’s place of business in Union City, which is located in Fulton County.

4. Appellants contend that there was a fatal variance in the indictment between the allegata and probata in that the indictment alleged that they took “115 bales of aluminum all of a value exceeding $500,” and that the prosecution was required to prove the number of bales alleged because they were a material part of the indictment. We find that a witness testified that there were 115 bales of aluminum on the trailer when it was stolen. Even if other evidence showed that there were only 86-95 bales, “[t]his variance was of the de minimus variety and could not have harmed the defendant in any way. The indictment fully and definitely informed the defendant of the charge against him and did not leave him open to a subsequent prosecution due to any defect or ambiguity therein.” Bowman v. State, 144 Ga. App. 681, 682 (242 SE2d 480) (1978).

5. The ownership of the stolen trailer was sufficiently proven, and appellants’ contention that because the certificate of title for it was not the correct title certificate ownership was not proven is without merit. The indictment alleged that a 1986 Matlock trailer of a value exceeding $500 and the property of William L. Bonnell Company was taken. A company employee testified that a 1986 Matlock trailer was taken and that its value was $5,000. “ ‘It is well established that those who steal will not be permitted to raise “nice and delicate questions” as to the title of that which is stolen.’ Ingram v. State, 137 Ga. App. 412, 415 (3b) (224 SE2d 527) (1976).” McIlhenny v. State, 172 Ga. App. 419, 420 (323 SE2d 280) (1984).

Decided September 8, 1987.

Mobley F. Childs, Peggy M. Childs, for appellants.

Lewis R. Slaton, District Attorney, D. Chris Jensen, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

6. Appellant claims that the rule of sequestration was violated because a witness for the state was permitted to remain in the courtroom after being excused at the conclusion of his testimony; that the court erred in allowing the witness to be recalled for rebuttal testimony; and that the witness should have been resworn.

Violation of the rule of sequestration goes to the credibility of a witness, not to his competency to testify. Jordan v. State, 247 Ga. 328 (276 SE2d 224) (1981); Hicks v. State, 256 Ga. 715, 719 (352 SE2d 762) (1987). The trial court pointed out that defense counsel asked that the witness be excused and that if he had not made such a request, the court would have required him to wait in the hallway outside the courtroom. The court also stated that it would have required the witness to be sequestered if the state indicated that it intended to recall him, but that once the witness was excused he could do as he pleased, the same as any other member of the general public. We find no error in permitting the state to recall the unsequestered witness for rebuttal. When the witness was recalled, he was reminded that he was still under oath. As appellant made no objection to his testimony without being resworn, the issue has not been preserved for appellate review. Morris v. State, 179 Ga. App. 228 (345 SE2d 686) (1986).

7. Appellant Bigby contends that the trial court was deprived of venue as to count two when the court declared a mistrial as to count one. We disagree. As stated in Division 3, above, he was found in recent possession of stolen property for which he gave an unsatisfactory explanation, and there was some evidence that the theft occurred in Fulton County.

Judgment in Case No. 74927 is affirmed.

Judgment in Case No. 74928 is affirmed in part and reversed in part. Birdsong, C. J., and Pope, J., concur.


text:
    74944.
    WADE v. THE STATE.
    (360 SE2d 647)
   Deen, Presiding Judge.

On March 4, 1986, the appellant, Wade, was walking near the Kings’ Motor Inn, where he was residing at the time. Because Wade matched the description of a rape suspect believed to be in the area, he was stopped by two Clayton County deputy sheriffs for questioning. The deputies, apparently with Wade’s consent (although there is some conflict in the testimony), took from him the small blue “Crown Royal” fabric bag he was carrying. Wade was patted down for any possible weapons by one deputy. The other deputy searched the bag, allegedly without first obtaining Wade’s consent (again, the testimony is conflicting).

The bag was found to contain various drug paraphernalia, including a small glass pipe, a spoon, an Arm & Hammer Baking Soda box with a white substance inside, several razor blades, a broken coathanger, and a bottle containing some dirty pieces of cotton and a small amount of alcohol. Both officers testified that they did not notice any signs of intoxication, either drug- or alcohol-induced, at the time of the arrest. The contents of the bag were sent to the crime lab for testing. The residue of a white substance contained in the glass pipe tested positive for cocaine; but the residue on the spoon tested negative, and the white substance in the Arm & Hammer box was determined to be baking soda.

Wade was taken to the scene of the rape, where the victim stated that appellant was not the perpetrator of the crime. Only after the appellant was exonerated as the rape suspect was he arrested for drug trafficking.

Appellant filed a motion to suppress the evidence found in the bag, and testified at trial that, just prior to his detention, he had seen the bag lying beside the path and had picked it up. This motion was denied. Subsequently, appellant was found guilty by a jury of possession of cocaine. He appeals on the ground that the trial court erred in denying his motion to suppress. Held:

Our scrutiny of the entire record, including the trial transcript, persuades us that the search of the bag was a lawful search conducted for the purpose of protecting the police officers from possible attack with weapons that might have been concealed in the bag or, possibly, inside some object (e.g., the baking soda box) within the bag. OCGA § 17-5-1 (a) (1); see also, e.g., Martasin v. State, 155 Ga. App. 396 (271 SE2d 2) (1980). The reasonableness of the search is a question for the trial court, not the appellate court, Meneghan v. State, 132 Ga. App. 380 (208 SE2d 150) (1974); moreover, the motivation for a search made under OCGA § 17-5-1 is irrelevant. Carson v. State, 241 Ga. 622 (247 SE2d 68) (1978). Furthermore, when, as in the instant case, the accused disavows ownership of the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right. See, e.g., Little v. State, 180 Ga. App. 359 (349 SE2d 248) (1986). The incidental seizure of evidence of contraband materials, though not directly related to the offense for which the accused was initially stopped, is lawful. OCGA § 17-5-1 (b); Denson v. State, 159 Ga. App. 713 (285 SE2d 69) (1981). The trial court did not err in denying appellant’s motion to suppress.

Decided September 8, 1987.

Linda S. Cowen, for appellant.

Robert E. Keller, District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    74979, 75176.
    ESTES v. JACK ECKERD CORPORATION; and vice versa.
    (360 SE2d 649)
   Beasley, Judge.

Maxine Estes’ complaint for general and punitive damages and attorney fees claimed false imprisonment, assault, and battery. She alleged as follows: On August 3, 1986 she entered an Eckerd drugstore and purchased some items for which she paid by check. As she left the store a buzzer sounded and the manager, who was acting on behalf of Eckerd, approached her and told her she was shoplifting. He attacked her by grabbing the bag of purchased items and threatened her. He detained her and began to rummage through her shopping bag where he found a paid receipt for all the items. He obtained a stamp marked “paid” to put over some of the items she had purchased and then told her to leave the store, continuing to act in a rude and derogatory manner. There were people present during the abuse which caused her to be ridiculed and insulted in public without any justification or cause, as if she were a common criminal. These actions were wilful and intentional.

Eckerd denied liability and, after discovery, moved for summary judgment on the basis of no liability because OCGA § 51-7-61 gave it probable cause to stop Mrs. Estes and search her shopping bag as a matter of law since the store’s antishoplifting device was activated when she started to leave. Eckerd explained: the evidence showed it had installed an antishoplifting device whereby certain items of merchandise were specifically tagged. Unless these tags were deactivated by an additional tag upon purchase a buzzer would sound when the customer tried to exit the store. Two notices were conspicuously posted to apprise customers that such a device was in use. When Mrs. Estes’ exit activated the buzzer, the store manager immediately approached her and told her he had to look in her shopping bag because the alarm had gone off. He walked a few feet away, opened the bag and found that all the items were accounted for on the sales receipt but saw that the special tag on a bottle of shampoo had not been deactivated. He placed the second tag on the bottle, put it back in Mrs. Estes’ bag, handed the bag to her and told her she was free to go. He explained this to her and apologized because the buzzer had gone off. The entire incident lasted at most a few minutes.

Eckerd urged that because the manner and period of time of any detention were reasonably sufficient for inquiry into the circumstances surrounding the activation of the antishoplifting device, recovery for false imprisonment was foreclosed by OCGA § 51-7-60, and the claims for assault and battery failed for lack of sufficient evidence.

At the motion hearing Mrs. Estes contended for the first time that OCGA § 51-7-61 should not be applied because the negligence of Eckerd’s employee in failing to deactivate the antishoplifting device by not placing the second tag over the specially tagged merchandise caused the alarm to sound. Summary judgment was denied. A jury found for defendant on simple battery and false imprisonment, the court having directed a verdict on assault. Mrs. Estes appeals only as to the false imprisonment count, enumerating as error the court’s refusal to allow her to pursue a negligence theory or to give her requested charges on negligence, and the refusal to allow her to introduce evidence of prior similar acts of Eckerd’s negligent operation of its antishoplifting system. Eckerd cross-appealed the denial of its motion for summary judgment.

Case No. 74979

1. False imprisonment is “the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. By OCGA § 51-7-60, the General Assembly provided a qualified immunity to merchants from tort liability for false arrest or false imprisonment. Swift v. S. S. Kresge Co., 159 Ga. App. 571, 573 (2) (284 SE2d 74) (1981). No recovery is permitted where plaintiff’s conduct is such “as to cause a man of reasonable prudence to believe” that the plaintiff was shoplifting, or where the manner of detention or arrest and the length of the detention was reasonable under all the circumstances. OCGA § 51-7-60 (1) and (2).

Later, OCGA § 51-7-61 was added to provide that where a store used an antishoplifting or inventory control device “the automatic activation of the device as a result of a person exiting the establishment or a protected area within the establishment shall constitute reasonable cause for the detention of the person so exiting by the owner or operator ... or employee . . . Each detention shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device.” (Emphasis supplied.) OCGA § 51-7-61 (b). This applies only when a warning notice is conspicuously posted. OCGA § 51-7-61 (c).

In response to Eckerd’s position that the statute acts as an absolute bar to Mrs. Estes’ recovery, she asserts that immunity is granted only if Eckerd used all reasonable care and due diligence in the use of the device and did not cause harm to her through its negligence. She argues that she attempted to show throughout the discovery process and during trial that Eckerd acted in a negligent manner both in the operation of its antishoplifting device and in its restraint of her.

“False imprisonment is an intentional tort, not a tort of negligence. See Stewart v. Williams, 243 Ga. 580 (255 SE2d 699) (1979). ‘In an action to recover damages for illegal arrest or false imprisonment the only essential elements are the arrest or detention and the unlawfulness thereof. [Cit.]’ Scott Housing Systems v. Hickox, 174 Ga. App. 23, 24 (1) (329 SE2d 154) (1985).” Williams v. Smith, 179 Ga. App. 712, 713-14 (2) (348 SE2d 50) (1986). Insofar as OCGA § 51-7-60 is concerned, four judges of this Court determined that since “the ‘reasonableness’ of the defendant’s cause to believe that the plaintiff was shoplifting and the manner and length of the detention or arrest are matters for the jury to determine, and there is no established statutory guideline in that regard,” the evidentiary rule in negligence cases is applicable in a false imprisonment case by analogy. Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 179 (2) (325 SE2d 844) (1984). Accordingly, it was held in the plurality opinion “that in a false imprisonment case in which OCGA § 51-7-60 is applicable and consequently in which there is a jury question concerning the ‘reasonableness’ of the determination that an act of shoplifting has occurred or of the manner of the detention and arrest of a suspected shoplifter or the length of the detention, private guidelines are admissible for the limited purpose of illustrating the applicable standard of reasonableness.” However, compliance does not demonstrate “reasonableness” nor does failure to comply demonstrate “unreasonableness” in and of themselves. Id. at 179-80.

The present case is governed by OCGA § 51-7-61, not by OCGA § 51-7-60. Our research has uncovered no Georgia case deciding whether that statute confers absolute immunity when its provisions for reasonable detention and time of inquiry and the posting of notice have been complied with. A Louisiana court considered a similar Louisiana antishoplifting device statute which provided that when notice was posted, reasonable cause to detain existed when the electronic device was activated; plaintiff contended that the neglect of the defendant’s sales clerk to remove the tag triggered the device resulting in an unlawful detention. Lindsey v. Sears, Roebuck & Co., 389 S2d 902 (Ct. App. La. 1980). The court reasoned that despite this fact, the legislature’s clear intention was “to afford to the merchant a right, within statutory limitations, to detain a person when the electronic device has been triggered.” Id. at 904. The confusion was that the essential question under such a statute was “not whether ‘reasonable cause’ exists, but whether the method and extent of plaintiff’s detention was reasonable under the circumstances. . . .” Id.

The reasoning of the Louisiana court is persuasive and substantiates our construction of the language of the Georgia statute, which is mandatory, inasmuch as it states that “automatic activation of the device . . . shall constitute reasonable cause. . . .” OCGA § 51-7-61 (b). That is, it makes no difference to “reasonable cause” whether or not negligence on the part of Eckerd’s employee in failing to deactivate the special tag on the bottle of shampoo set the device off. What matters is whether the method and time of detention were reasonable within the statutory limitations. Defendant’s right to detain is lawful once the device is automatically activated.

This is analogous to the defense of valid process in an action for false imprisonment pursuant to an alleged illegal arrest. “With regard to the element of ‘unlawfulness’ in the tort of false imprisonment, the law has already made a fundamental distinction between a detention effectuated pursuant to process and detention which is not predicated on process. An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and can not be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be.” (Citations and punctuation omitted.) Williams v. Smith, 179 Ga. App. 712, 714, supra.

Having determined that the defendant’s alleged precursor negligence is immaterial when an antishoplifting device has been automatically activated, the only issue under OCGA § 51-7-61 is whether the detention was made in a reasonable manner, as she does not contend that it was not for a reasonable period of time, and if proper notice was posted as required. The latter is undisputed as there were at least two warning signs prominently displayed in the store near the entrance and exit.

While the testimony of Mrs. Estes and Eckerd’s manager was conflicting as to what he said when he approached her, there is no dispute that he searched her bag without any objection on her part, and that the episode lasted only five to ten minutes. Clearly there was no restraint either by force or fear here, as is necessary to recover under OCGA § 51-7-20. See J. H. Harvey Co. v. Speight, 178 Ga. App. 812 (344 SE2d 701) (1986). “Although it would have been advisable, perhaps, to ask plaintiff to produce the receipt for the purchase immediately after the device was triggered, or to escort her to the privacy of an area unobserved by other customers, we cannot say the manner in which Mrs. [Estes] was detained or the extent of her detention was unreasonable. Under the circumstances [she was] not entitled to recover.” Lindsey v. Sears, Roebuck & Co., 389 S2d 902, 904, supra. Further, causing embarrassment is not the same as unlawful imprisonment. Lord v. K-Mart Corp., 177 Ga. App. 651, 653 (1) (340 SE2d 225) (1986). We find the evidence sufficient to support the jury’s apparent conclusion that Mrs. Estes was not detained unreasonably. The first enumeration of error fails.

Decided September 8, 1987.

2. Appellant complains that the trial court erred in refusing to charge her requested instruction “that if you find that the Defendant by and through its employees were [sic] negligent in the manner of their [sic] restraint of the plaintiff, then the Plaintiff would be entitled to special and general damages.” This is not an accurate statement of the law, nor is it adjusted to the evidence presented. There is no liability for negligent or reckless acts which cause “nothing more than the imposition of a transitory and harmless confinement”; the plaintiff can recover only if he can establish actual and real loss or injury. Baggett v. Nat. Bank & Trust Co., 174 Ga. App. 346, 349 (2) (330 SE2d 108) (1985).

3. Appellant’s enumeration concerning the trial court’s exclusion of evidence of prior similar acts of Eckerd involving the use of its antishoplifting device with nonrelated parties succumbs to the rule that “[a]ctions of third parties not involved in the case are not admissible where it was not shown that such evidence bore either directly or indirectly on issues being tried by the jury. [Cit.]” Atlantic Zayre v. Williams, 172 Ga. App. 43, 46 (4 (a)) (322 SE2d 83) (1984).

Case No. 75176

4. In the cross-appeal Eckerd contends that the trial court erred in denying its motion for summary judgment because there were no genuine issues of material fact under OCGA §§ 51-7-60 and 51-7-61 for jury determination. That issue is moot. Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579) (1985), cert. den. 475 U. S__(106 SC 1491, 89 LE2d 893) (1986).

Judgment affirmed.

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

William, W. Lavigno III, Salvatore J. Serio, for appellant.

Bryan F. Dorsey, James P. Boston, for appellee.


text:
    74981.
    SOCOLOW v. GOODMAN.
    (360 SE2d 653)
   Deen, Presiding Judge.

This appeal arises from a probate court’s assessment of $3,810.09 attorney fees against the appellant, Rosah Kline Socolow, for propounding an invalid will without a reasonable belief that the will could be probated. Before the petition was filed, an attorney for Socolow discovered that the purported will had never been properly witnessed. Socolow claimed that the decision to file the petition anyway was made after being advised by counsel that it would be difficult, but not impossible, to probate the will. Within a week after Ronald Goodman (the nephew of the decedent and Socolow) filed his caveat, Socolow dismissed the petition. In awarding the attorney fees to the caveator, the probate court rejected as incredible Socolow’s claim that she had proceeded to file the petition only upon the advice of counsel. Held:

1. OCGA § 9-15-14 (a) provides that “[i]n any civil action in any court of record of this state, reasonable and necessary attorney fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.” Socolow’s sole contention on appeal is that it was unjust to assess the attorney fees against her, rather than the attorney who prepared the petition.

In this case, it was undisputed that the purported will was invalid, and there was evidence before the probate court that supported a finding that Socolow, and not the attorney, had been the primum mobile in the aborted petition to probate the will. Under these circumstances, while the probate court may have been authorized to assess some of the attorney fees against the attorney as well, it was no abuse of discretion or manifest injustice to assess the fees against Socolow only.

2. The appellee has moved for attorney fees under OCGA § 9-15-14, or, in the alternative, for damages for a frivolous appeal pursuant to OCGA § 5-6-6. That motion is denied, as it appears to this court that (1) motions under OCGA § 9-15-14 are addressed to the trial courts, and (2) this appeal was not interposed only for purposes of delay.

Decided September 8, 1987.

Rosah Socolow, pro se.

James B. Richardson, for appellant.

Mark L. Golder, Ronald W. Eisenman, for appellee.

Judgment affirmed.

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


text:
    75056.
    TERRELL v. THE STATE.
    (360 SE2d 654)
   Deen, Presiding Judge.

Calvin Leon Terrell was convicted of theft by taking and brings this appeal following the denial of his motion for a new trial, enumerating the general grounds. Held:

The evidence showed that Terrell was employed by William Auld to do some remodeling work on a house. Part of the work included the installation of fifteen custom-made windows and two doors. Auld originally wanted them installed on the date of delivery, but because extra supplies were needed before they could be installed, the parties agreed that these items would be stored at Terrell’s home for safekeeping until the work could be completed. Several weeks later, Auld discovered that they had not been installed, and eight months later learned that Terrell had installed them in his own house. Auld and an employee removed the windows and notified the police. Terrell readily admitted to the police detective that there was a salary dispute with Auld and that he originally moved the windows over to his house to store them at Auld’s request, but that after a subsequent salary dispute he felt he was entitled to keep them as payment for services rendered. “Possession is very strong; rather more than nine points of the law.” Mansfield, Lord, Corporation of Kingston-upon-Hull v. Horner (1774), Lofft, 576, 591. Yet the jury could have found the type possession under the facts here unlawful, amounting and adding up to theft by taking.

Construing the evidence in favor of the prosecution, we find that a rational trier of fact could find the appellant guilty beyond a reasonable doubt. Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980).

Judgment affirmed.

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

Decided September 8, 1987.

Chandelle Turner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.


author: Carley, Judge.

text:
    72915.
    MARYLAND CASUALTY INSURANCE COMPANY v. WELCHEL.
    (361 SE2d 285)
    Decided September 9, 1987.

      Timothy J. Sweeney, Perry A. Phillips, for appellant.

      Thomas J. Browning, Hylton Dupree, Jr., for appellee.
   Carley, Judge.

Appellant-plaintiff brought suit, seeking damages for appelleedefendant’s alleged conversion of a truck and for his alleged tortious interference with its rights under a loan receipt. On appeal to this court, the trial court’s grant of a directed verdict in favor of appellee was affirmed as to the conversion count and reversed as to the tortious interference count. Maryland Cas. Ins. Co. v. Welchel, 181 Ga. App. 224 (351 SE2d 645) (1986). On certiorari to the Supreme Court of Georgia, this court’s decision was affirmed in part and reversed in part. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259 (356 SE2d 877) (1987). Accordingly, this court’s opinion in Maryland Cas. Ins. Co. v. Welchel, 181 Ga. App. 224, supra, is hereby vacated and the judgment of the Supreme Court is made the judgment of this court. It follows that the trial court’s grant of a directed verdict in favor of appellee is affirmed as to both counts.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    74391.
    GILDEA v. THE STATE.
    (360 SE2d 657)
   Carley, Judge.

Appellant and his co-defendant were jointly indicted for the offense of burglary. The co-defendant entered a plea of guilty, but appellant entered a plea of not guilty. Appellant was tried before a jury and a verdict of guilty was returned. Appellant appeals from the judgment of conviction and sentence entered on the jury verdict.

1. Appellant enumerates as error the admission, over his “best evidence” objection, of a latent fingerprint lift card prepared at the scene of the break-in. The contention is that the object from which the print was lifted should have been presented at trial.

“The ‘best evidence rule’. . . applies only to writings ([cit.]), and only where the contents of the writings are in issue. [Cit.]” Pryor v. State, 238 Ga. 698, 707 (9) (234 SE2d 918) (1977). Fingerprint evidence obviously involves no writing. The State laid a proper foundation for the admission of the lift card through the testimony of the agent who had prepared it at the scene. This enumeration is without merit.

2. Appellant enumerates as error the denial of his motion for directed verdict. He contends that his conviction rests only upon circumstantial evidence, which evidence does not exclude every other reasonable hypothesis except that of his guilt. See OCGA § 24-4-6.

As discussed in Division 1 of this opinion, the latent fingerprint lift card was properly admitted into evidence. Accordingly, the State did produce evidence showing that appellant had been present in a part of the subject premises which was not open to the public. See Anthony v. State, 85 Ga. App. 119 (68 SE2d 150) (1951). This, coupled with the other evidence produced by the State, authorized appellant’s conviction. A review of the entire record reveals that any rational trior of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

3. The trial court’s denial of appellant’s motion to suppress is enumerated as error. We note at the outset that there is some question whether the merits of this enumeration should be addressed. The only motion to suppress was filed by appellant pro se. At the time, appellant was represented by counsel. A defendant no longer has the right to simultaneous self-representation and representation by counsel. Constitution of Georgia 1983, Art. I, Sec. I, Par. XII; Nelms v. Ga. Manor Condominium Assn., 253 Ga. 410 (321 SE2d 330) (1984); Jones v. State, 171 Ga. App. 184 (2) (319 SE2d 18) (1984). If election of the right to counsel is a waiver of the right to self-representation, it would seem to follow that that election also constitutes a waiver of the right to conduct of the defense. However, since the trial court in this case entertained appellant’s pro se motion, we will address the merits of its ruling on that motion.

Among the items of evidence that appellant’s motion sought to suppress was a fingerprint card made while appellant was at the sheriff’s office, but prior to his arrest. Appellant urges that this fingerprinting was the product of an unlawful detention. The Supreme Court of the United States has held that if fingerprinting was conducted in a custodial setting and “there was no probable cause to arrest, no consent to the journey to the police station, and no judicial authorization for such a detention for fingerprinting purposes,” then the fingerprints must be excluded from evidence as the product of an unreasonable search and seizure. Hayes v. Florida, 470 U. S. 811, 814 (105 SC 1643, 84 LE2d 705) (1985). In the present case, unlike Hayes, there is sufficient evidence from which the trial court, sitting as the trior of fact, was authorized to find that appellant had voluntarily accompanied the police and had voluntarily consented to the fingerprinting. “ ‘Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent. [Cit.]’ [Cit.]” Hall v. State, 239 Ga. 832 (1) (238 SE2d 912) (1977).

Appellant’s motion also contested the seizure by police of a pair of tennis shoes and a screwdriver from a motel room that appellant was sharing with his co-defendant. The seizure of this evidence was not the consequence of an unlawful detention, but the lawful product of the consent of his co-defendant to a search of the motel room. Thus, the trial court did not err in denying the motion to suppress as to evidence seized from the motel room. See Hall v. State, supra at 832 (1).

Certain items were also seized during the course of an inventory of appellant’s automobile which had been impounded after his arrest. The propriety of inventorying the contents of a vehicle impounded in conjunction with an arrest is well established. See generally Arnold v. State, 155 Ga. App. 581 (1) (271 SE2d 714) (1980). The impoundment having been made pursuant to appellant’s lawful arrest and no other viable alternative to the impoundment having been shown on the record, the motion to suppress was correctly denied as to evidence seized from appellant’s automobile.

4. Appellant enumerates as error the admission of certain evidence over his objection based upon its relevancy and its prejudicial impact on the jury.

Where the crime charged is burglary, evidence of a defendant’s possession of tools and disguises associated with that crime is neither irrelevant nor prohibitively prejudicial. Possession of such items relates to motive and intent. See Fowler v. State, 95 Ga. App. 470 (97 SE2d 913) (1957). Accordingly, the trial court did not err in admitting evidence of appellant’s possession of a pistol, lockpicks, wig, false mustaches and a goatee, and handcuffs.

Likewise, since it was a pharmacy that appellant was charged with burglarizing, the trial court did not err in admitting evidence of appellant’s possession of drugs, pills, and needles. That evidence was relevant to the issues of appellant’s motive and intent. See Smith v. State, 250 Ga. 526, 528 (1) (299 SE2d 547) (1983); Jimerson v. State, 163 Ga. App. 54 (1) (293 SE2d 313) (1982).

Access to the pharmacy had been gained by drilling the locks, a drill with a bit had been found at the scene, and a receipt found in appellant’s car indicated that a drill and three drill bits had been purchased. Accordingly, two drill bits which were found in the possession of the co-defendant were relevant to the issues of identity, motive and intent and were properly admitted into evidence. There was no error.

Decided September 9, 1987.

John B. Adams, for appellant.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    74400.
    BOYETTE v. ELMER.
    (361 SE2d 3)
   Carley, Judge.

While employed by Uni-Clean, Inc., appellee-plaintiff suffered a work-related injury. Although appellant-defendant was the corporate officer who had the responsibility of procuring workers’ compensation insurance coverage for the employees of Uni-Clean, Inc., no such insurance coverage had ever been acquired. In January of 1983, an award of workers’ compensation benefits was made to appellee by the State Board of Workers’ Compensation and was not appealed by Uni-Clean, Inc. However, appellee had only partially collected this award of workers’ compensation benefits when Uni-Clean, Inc. subsequently filed for bankruptcy. After Uni-Clean, Inc.’s bankruptcy, appellee initiated this tort action, alleging that appellant had breached his duty to obtain workers’ compensation insurance for the employees of Uni-Clean, Inc. Cross-motions for summary judgment were filed. The trial court entered an order denying appellant’s motion for summary judgment and granting summary judgment in favor of appellee. Appellant appeals from that order.

1. Appellant enumerates as error the grant of appellee’s motion for summary judgment and the denial of his own motion.

With regard to the issue of appellant’s liability in tort to appellee, the facts of this case are virtually indistinguishable from those of Samuel v. Baitcher, 247 Ga. 71, 74 (274 SE2d 327) (1981): “In this case, a valid claim was made under the Workers’ Compensation Act. A valid award was granted by the board. The award was not collected for only two reasons. First, the employer carried no workers’ compensation insurance. Second, the employer was insolvent. Had the employer’s agents . . . carried out their duties under the Act by procuring workers’ compensation insurance coverage, the award would have been collected. Under these limited circumstances, the employee may pursue a claim at law against the agent of the employer for an amount equal to the award of the Workers’ Compensation Board.”

Appellant asserts that appellee’s tort claim is barred by the statute of limitations. However, the tort is comprised of several elements, all of “which must be present before a claimant may successfully pursue a cause of action against an agent of his employer for failure to procure workers’ compensation insurance: a valid workers’ compensation claim; a valid award granted by the Board; and the employer’s insolvency. [Cits.]” Myers v. Wilson, 167 Ga. App. 340, 342 (1) (306 SE2d 401) (1983). Appellee filed the present action less than seven months after his otherwise valid award of workers’ compensation benefits had become uncollectable as a result of Uni-Clean, Inc.’s bankruptcy. This was well within the two-year period of the applicable statute of limitations. “[Although [appellee] knew of his employer’s failure to obtain workers’ compensation insurance as early as [January] of [1983, the date of his award], this failure, in and of itself, did not give rise to a cause of action against [appellant], the employer’s agent responsible for procuring such coverage. Such cause of action arose only when the Board’s award in favor of [appellee] became uncollectable because of the employer’s insolvency. . . .” Myers v. Wilson, supra at 342 (1).

Appellant further asserts that appellee, having received no-fault benefits under the provisions of Uni-Clean, Inc.’s automobile policy, is now seeking an unauthorized double recovery. However, an employee is not barred from recovering both no-fault benefits under the provisions of his employer’s automobile policy and workers’ compensation benefits from his employer. OCGA § 33-34-8 (c) merely provides that, as against the benefits payable to an employee, the employer’s no-fault carrier is entitled to claim a set-off in an amount equal to the employee’s workers’ compensation benefits. See generally Cotton States Mut. Ins. Co. v. Smith, 173 Ga. App. 95 (325 SE2d 408) (1984). We are aware of no similar statutory provision which would entitle one who is liable for payment of workers’ compensation benefits to claim a set-off in an amount equal to the no-fault benefits that the employee has actually received under his employer’s automobile policy. Compare OCGA § 34-9-206. Moreover, this case ultimately involves appellee’s entitlement to receive neither no-fault benefits nor workers’ compensation benefits. Appellee is entitled to recover in tort insofar as his award of workers’ compensation has been rendered uncollectable by acts attributable to appellant. See Samuel v. Baitcher, supra. The award of workers’ compensation that was made to appellee is res judicata as to the amount of such compensation to which he was entitled. That Uni-Clean, Inc.’s no-fault carrier may have failed to assert its right to a set-off against the amount of no-fault benefits that it paid to appellee does not provide appellant with a defense against his tort liability to appellee.

Decided September 9, 1987.

R. Wade Gastin, for appellant.

Ralph R. Lorberbaum, Donald W. Ramsey, Jr., for appellee.

As to the issue of appellant’s liability, the trial court correctly granted summary judgment in favor of appellee and denied summary judgment in favor of appellant.

2. Appellee sought to recover from appellant “an amount equal to the award of the Workers’ Compensation Board. . . .” However, construing the evidence as to damages most strongly for appellant as the non-moving party, the breach of appellant’s duty to procure workers’ compensation insurance did not have the effect of rendering the entire award of compensation to appellee uncollectable. Apparently, appellee had actually secured satisfaction of some portion of his award of workers’ compensation by filing a garnishment action against Uni-Clean, Inc. prior to that corporation’s act of filing for bankruptcy. Compare Samuel v. Baitcher, supra; Myers v. Wilson, supra. If only a portion of the award remained unsatisfied at the time of Uni-Clean, Inc.’s bankruptcy, it is only to that extent that appellee was actually damaged by appellant’s breach of his duty to procure workers’ compensation insurance. It is only to that extent that appellee can recover tort damages against appellant. “Damages are given as compensation for injury. . . .” OCGA § 51-12-4.

A recovery from appellant of an amount equal to the entire award would constitute a double recovery insofar as appellee may have already recovered a portion of his award from Uni-Clean, Inc. On the record before us, the extent to which appellee’s award may have been satisfied prior to Uni-Clean, Inc.’s bankruptcy and the extent to which appellant is liable to appellee remain uncertain. Accordingly, as to the issue of damages, the trial court correctly denied appellant’s motion for summary judgment, but erred in granting summary judgment in favor of appellee.

3. As to the issue of liability, the order granting summary judgment to appellee and denying appellant’s motion for summary judgment is affirmed. As to the issue of damages, the order denying appellant’s motion for summary judgment is affirmed and the order granting summary judgment in favor of appellee is reversed.

Judgment affirmed in part and reversed in part.

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


author: Pope, Judge.

text:
    74401.
    SOLID ROCK BAPTIST CHURCH, INC. et al. v. FREIGHT TERMINALS, INC.
    (361 SE2d 200)
   Pope, Judge.

Plaintiff Freight Terminals, Inc. brought this action in the Superior Court of Cobb County against defendant The Solid Rock Baptist Church, Inc., seeking recovery of damages for breach of contract and fraud. Plaintiff also sought recovery of damages from six named individual defendants alleging wrongful interference with its contract rights with defendant church, but this claim has been dismissed. Defendant church answered and filed a cross-claim against the named individual defendants. This appeal arises from the trial court’s grant of plaintiff’s motion for partial summary judgment establishing defendant church’s liability on the breach of contract claim. Also at issue here is the trial court’s simultaneous denial of defendant church’s “Motion for Declaratory Judgment.”

In order to facilitate an understanding of the issues in this case, a brief history of this matter is in order. The construction of 1-285 in south Cobb County left the property of Wilson Memorial Baptist Church (comprising approximately six acres) on a dead-end street in an area rapidly converting to commercial and industrial development. A majority of the congregation voted to merge with nearby Skyview Baptist Church, thus forming a new church now known as The Solid Rock Baptist Church, Inc., defendant herein. This merger was facilitated by the good offices of the Noonday Baptist Association, Inc., described as “a fellowship of churches [having] absolutely no governmental nor other power over individual fellowships [or churches]. . . .” Defendant church entered into a contract for the sale of the six-acre site of the Wilson Memorial Baptist Church with plaintiff Freight Terminals, Inc. Coldwell Banker Commercial Real Estate Services, Inc. brokered the transaction. However, a dissatisfied minority of the Wilson Memorial congregation (individual defendants herein) first sought unsuccessfully to enjoin the merger of Wilson Memorial and Skyview, and presently have other lawsuits pending in the Superior Court of Cobb County disputing defendant church’s claim of ownership of the subject six acres. Defendant church has been unable to resolve these disputes and, as a result, was unable to fulfill its obligations under the contract of sale with plaintiff.

1. Defendant church’s “Motion for Declaratory Judgment” sought both declaratory relief and the addition of Coldwell Banker and Noonday Baptist Association as necessary parties to this case. Turning first to the prayer for declaratory relief, we find no statutory prohibition to raising this issue by motion rather than by the usual petition. See OCGA § 9-4-2 (a). However, as to the merits of the motion in this regard, we find no error in the trial court’s denial of same. In essence, defendant church sought a judicial declaration “in order to prepare a defense to the case at bar” that its past actions involving the merger and contract of sale were proper and that the individual defendants’ actions regarding same were improper. “ ‘The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.’ . . . ‘And where, as here, the [motion] shows that the rights of the parties have already accrued and no facts or circumstances are alleged which show that an adjudication of the [defendant church’s] rights is necessary in order to relieve [it] from the risk of taking any future undirected action incident to [its] rights, which action without direction would jeopardize [its] interest, the [motion] fails to state a cause of action for declaratory judgment.’ ” Milton Frank &c. Pubs. v. Ga. Assn. of Petroleum Retailers, 219 Ga. 665, 671 (135 SE2d 330) (1964). “A declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding pending in a court of competent jurisdiction, in which the same questions may be raised and determined. . . . The prayers in the [motion] for declaratory judgment ask for substantially the same relief and against the same [parties] as in the pending cases [including the case at bar] and all issues raised by this [motion] were involved in or could be raised in the actions pending in the same court at the time the [motion] was filed, and the order entered thereon.” (Indention omitted.) Kiker v. Hefner, 119 Ga. App. 629, 631 (168 SE2d 637) (1969); see also City of Summerville v. Sellers, 82 Ga. App. 361 (61 SE2d 160) (1950).

Defendant church’s “Motion for Declaratory Judgment” also sought an adjudication that Coldwell Banker and Noonday Baptist Association were “necessary” parties in this case. Assuming without deciding that the motion was adequate to properly raise the issue of joinder under OCGA § 9-11-19 (a) (see OCGA § 9-11-19 (c); but see Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446 (1) (304 SE2d 442) (1983)), we find no error in the trial court’s denial of same. “There are two essential tests of an indispensable party: (1) can [complete] relief be afforded the [existing parties] without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party?” Pickett v. Paine, 230 Ga. 786, 796 (199 SE2d 223) (1973); OCGA § 9-11-19 (a). “If there are no ‘compelling reasons’ for joinder of the third parties, then they are not indispensable to the action, and it is not ‘necessary’ under [OCGA § 9-11-19] to join them as parties] ... for a just adjudication of the merits of the action between the [existing] parties.” Peoples Bank of LaGrange v. N. C. Nat. Bank, 230 Ga. 389, 392 (197 SE2d 352) (1973). The record discloses that both Coldwell Banker and Noonday Baptist Association have what can best be described as a passing interest in the case at bar. There are clearly no “compelling reasons” for joining either as a party in this case, for the presence of neither is required in order for complete relief to be afforded the existing parties, and neither has any rights subject to prejudice in the subject litigation. Complete relief as between the existing parties can be effected without giving consideration to a cause of action that any party may have against either of these entities after the conclusion of this case. Id. at 392.

2. We also find no error in the trial court’s grant of plaintiff’s motion for partial summary judgment establishing defendant church’s liability on the breach of contract claim. The facts relating to this issue are plain and undisputed, notwithstanding both parties’ attempts to cloud and color our view of same by references to other matters of record having no bearing on the rather narrow issue presented here.

As to the breach of contract claim, the record shows that plaintiff and defendant church entered into a contract of sale of the six acres originally owned by Wilson Memorial and subsequently deeded to defendant church upon the merger of Wilson Memorial and Skyview. There is no dispute that defendant church was authorized to and did in fact execute the subject contract. The contract provided that title to the property “shall be good and marketable and insurable by Ticor Title Insurance Company.” Plaintiff’s title search (as provided for by the contract) disclosed the pendency of several lawsuits disputing title to the property. In accordance with the contract, plaintiff furnished defendant church with a written statement detailing the defects in title. Although the contract provided defendant church with an opportunity to cure these defects, it failed to do so. Plaintiff twice exercised its option under the contract to postpone the closing, but upon defendant church’s failure to cure the defects, plaintiff then exercised another option under the contract and declined to accept the property subject to the defects in title by giving timely notice thereof to defendant church. The contract expressly provided that the failure of defendant church to cure such defects constituted an act of default entitling plaintiff to the rights and remedies provided therein.

In response to the foregoing prima facie showing by plaintiff of defendant church’s liability for breach of the subject contract, defendant church asserts plaintiff’s failure to comply with certain conditions precedent provided in the contract. The cited provision, however, imposes no obligations on plaintiff but, rather, makes plaintiff’s performance contingent on performance by defendant church and other listed events. The record discloses no breach of any provision of the contract by plaintiff, including the provision containing conditions precedent to the obligations of plaintiff.

Decided September 9, 1987.

C. E. Thompson, for appellants.

G. Conley Ingram, Ray Gary, Ray Gary, Sr., J. Al Cochran, Mary C. Gill, Karen L. Abrahams, for appellee.

The only other colorable defense offered by defendant church in opposition to plaintiff’s summary judgment motion was that the actions of the individual defendants prevented defendant church’s performance of the contract. However, the record discloses that defendant church was aware of the individual defendants’ claims to the subject property at the time the contract was executed and was also aware of the individual defendants’ physical possession of the property at that time. Notwithstanding these circumstances, defendant church made no contractual provision therefor. “Where a party voluntarily assumes a duty or liability, [it] is not relieved of [its] responsibility to perform under the contract when [it] might have provided for such contingencies. [Cit.] ” Cook Farms, Inc. v. Bostwick, 165 Ga. App. 692, 695 (302 SE2d 574) (1983); see also Gem Knitting Mills v. Empire Printing &c. Co., 3 Ga. App. 709 (2) (60 SE 365) (1908); 17A CJS, Contracts, § 462. See generally 17A CJS, Contracts, § 459 at p. 600, noting that the lawful conduct or interference of third parties will generally not excuse performance of a contract.

Judgment affirmed.

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

       In regard to the appealability of this latter motion, see generally Seaboard C. L. R. v. Mobile Chemical Co., 172 Ga. App. 543 (1) (323 SE2d 849) (1984).

       On appeal defendant church also attempts to have the Skyview Baptist Church joined as a party in this case. Assuming arguendo that this entity is still in existence following its merger with Wilson Memorial, this issue was not raised in the court below and thus presents nothing for resolution here.


text:
    74419.
    MOON v. CITY OF EATONTON.
    (361 SE2d 6)
   Carley, Judge.

Appellant-plaintiff is a minor. He was playing on a set of monkey bars which was located on a playground operated and maintained by appellee-defendant municipality. One of the posts of the monkey bars was anchored in the ground by concrete. The concrete surrounding the pole had somehow become exposed and protruded above ground level. Appellant fell from the monkey bars and hit the exposed and protruding concrete. As a result of his fall, appellant broke his arm.

Appellant, by next friend, brought this action to recover damages for the injury he sustained in the fall. Appellant’s complaint alleged that appellee’s monkey bars constituted a nuisance which proximately caused his injury. Appellee answered, denying the material allegations of the complaint, and subsequently filed a motion for summary judgment. The trial court granted appellee’s motion. Appellant appeals from the grant of summary judgment in favor of appellee.

“Where a city maintains a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public.” Cornelisen v. City of Atlanta, 146 Ga. 416 (1) (91 SE 415) (1917). However, “ ‘[a] municipal corporation, like any other individual or private corporation, may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or [ministerial] function. [Cits.]’ [Cit.] ‘In City of Bowman v. Gunnells, 243 Ga. 809 (2) (256 SE2d 782) (1979), the Supreme Court set out three guidelines to define a nuisance for which a city may be held liable. First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.’ [Cit.]” Few v. City of Eatonton, 179 Ga. App. 110, 111 (345 SE2d 657) (1986).

Applying these standards to the case at bar, there was some factual dispute as to the nature and elevation of the concrete surrounding the post and the duration of the existence of this condition. However, appellee’s evidence that it had no knowledge of the alleged defect is undisputed. Compare Few v. City of Eatonton, supra. Appellee’s mayor, city clerk, superintendent, and maintenance supervisor all stated, by way of affidavit, that they had no knowledge of any dangerous condition existing at the playground and had received no complaints, oral or written, concerning conditions at the playground prior to appellant’s fall. “ ‘[T]o hold that defendant City should have known of the problem and corrected it, even without any record of complaints or accidents [attributed to the defect], is to impose a standard of ordinary care,’ rather than the proper standard requiring a showing that the maintenance of the defect exceeded mere negligence.” Shuman v. Mayor & Aldermen of Savannah, 180 Ga. App. 427, 428 (349 SE2d 239) (1986). The trial court correctly granted summary judgment for appellee.

Judgment affirmed.

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

Decided September 9, 1987.

L. Z. Dozier, Jr., for appellant.

Mary M. Katz, for appellee.


author: Benham, Judge.

text:
    74421.
    HOWARD v. DEPARTMENT OF TRANSPORTATION.
    (361 SE2d 7)
   Benham, Judge.

Pursuant to OCGA § 32-3-4, appellee Department of Transportation (DOT) filed a proceeding in rem, seeking condemnation of .019 acres of land in Sumter County. In its petition, DOT listed appellant Howard, Wayne Poole, Bennie Whittle, Janis Dixon Baldwin, and Southwestern Railroad Company as owners of the tract of land. The petition and declaration of taking were served upon appellant, Whittle, and Baldwin on October 17, 1985, upon Southwestern Railroad on October 18, and upon Poole on October 22. The railroad filed a pleading it labeled an “answer” on November 11, noting a misstatement of its name in the petition and declaration of taking. On November 21, appellant, dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court ($1,565), filed a notice of appeal. See OCGA § 32-3-14. On appellee’s motion, appellant’s notice of appeal was stricken as untimely. From that action appellant brings this appeal.

“If the owner, or any of the owners, or any person having a claim against or interest in the property is dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court, . . . such person or persons, or any of them shall have the right, at any time subsequent to the filing of the declaration and the deposit of the fund into court, but not later than 30 days following the date of the service ... to file with the court a notice of appeal. . . .” OCGA § 32-3-14. “ ‘The right to appeal to a jury from a declaration of taking has been held to be absolutely conditional upon the filing of a timely notice of appeal in the superior court.’ [Cits.]” Chambers v. Dept. of Transp., 172 Ga. App. 197 (1) (322 SE2d 366) (1984).

1. Appellant acknowledges his notice of appeal was filed more than 30 days after he was served with a copy of the petition and the declaration of taking. He argues, however, that this court’s holding in Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975), is the springboard from which we may reverse the trial court’s decision. We disagree. In Knight, DOT sought several parcels of property, each of which involved more than one condemnee. Not all the condemnees were served with the petition and declaration of taking, but those who were served filed notices of appeal beyond the 30-day statutory period. This court held that the notices of appeal were timely because the case was not ready for trial “[u]ntil those named by the state have been served, or a proper reason for lack of service has been shown.” Id. at 336. Thus, a notice of appeal filed more than 30 days after a condemnee has been served may still be timely if a co-condemnee has yet to be served. Appellant argues that his notice of appeal should be deemed timely because when it was filed, November 21, the 30-day statutory period for filing a notice of appeal had not expired for appellant’s co-condemnee, Poole, who had been served on October 22. In Blonder v. Dept. of Transp., 156 Ga. App. 711, 712 (275 SE2d 762) (1980), this court rejected the argument that the ruling in Knight extended the statutory time for filing a notice of appeal until the period had expired for the last-served condemnee. If the 30-day period for filing a notice of appeal expires as to each condemnee with no timely notice of appeal having been filed by any of them or any other person or entity having a claim against or interest in the property sought to be condemned, it is proper to grant a motion to strike a notice of appeal filed more than 30 days after service of the petition and declaration of taking upon the party filing the notice of appeal.

Decided September 9, 1987.

William E. Smith, for appellant.

2. Appellant also suggests that Knight is authority for the proposition that an out-of-time notice of appeal may be deemed timely if a co-condemnee has filed a timely notice of appeal. See Blonder v. Dept. of Transp., supra. Appellant urges that his notice of appeal is timely because Southwestern Railroad filed a timely “answer.” In order for a pleading to be considered a notice of appeal, it must express dissatisfaction with the proposed compensation. See OCGA § 32-3-14; Dept. of Transp. v. Harrison, 154 Ga. App. 118 (267 SE2d 651) (1980). The railroad’s “answer” sought to clarify its name, and demanded “strict proof” of the allegations of the condemnor’s petition since the railroad professed itself without sufficient knowledge to form a belief as to the truth of those allegations. The “answer” conveyed no expression of dissatisfaction with the amount of compensation proposed. Since the railroad’s pleading did not constitute a notice of appeal and since none of appellant’s co-condemnees filed a timely notice of appeal, appellant’s untimely notice may not be deemed timely even under his interpretation of Knight.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Edmund A. Landau, Jr., Walter M. Deriso, Jr., for appellee.


author: Sognier, Judge.

text:
    74435.
    SPIVEY v. THE STATE.
    (361 SE2d 9)
   Sognier, Judge.

Appellant was convicted of speeding and driving with .12 percent or more alcohol in his blood. In his sole enumeration of error appellant contends the trial court erred by excluding from evidence the results of an independent blood alcohol test conducted by Roche Biomedical Laboratories (RBL) in Burlington, North Carolina. Evidence pertaining to this issue disclosed that appellant was arrested for speeding and driving under the influence of alcohol around 1:00 a.m., January 10,1986. After taking a breath test at the Athens, Georgia, police department which indicated an alcohol content of .13 percent alcohol content, appellant requested an independent blood alcohol test and was taken to the Athens Regional Medical Center. A registered nurse withdrew two vials of blood from appellant, labelled the tubes with appellant’s name and the time and date the blood was drawn, wrapped the tubes in gauze and gave them to appellant. When informed that the Medical Center would not run the actual blood alcohol test, appellant contacted the Georgia State Crime Laboratory, which referred appellant to RBL in Athens. Appellant testified that the same afternoon (January 10th) he took the two vials of blood to RBL in Athens, which in turn forwarded the blood to RBL in Burlington, North Carolina, for testing. RBL in Athens received a computer printout of the results of the blood alcohol test which indicated there was no alcohol in the blood submitted by appellant.

Appellant offered the computer printout in evidence on the ground that a proper foundation had been laid for its admissibility as a business record, and a proper chain of custody had been established. The State’s objection to admissibility of the document was sustained on the ground that a proper foundation had not been laid, and appellant contends that ruling was error.

We agree that a proper foundation was laid for admission of the document as a business record, because Debra Moore, branch manager of RBL-Athens, testified that the computer printout was made in the regular course of RBL’s business, and it was in the regular course of their business to make the printout. OCGA § 24-3-14 (b); Millwood v. State, 166 Ga. App. 292, 293 (5) (304 SE2d 103) (1983). However, the printout contained the conclusion of the person who tested appellant’s blood in Burlington that it contained no alcohol. If a hospital record (here a laboratory report) contains diagnostic opinions or conclusions, it cannot, upon proper objection, be admitted into evidence unless and until a proper foundation is laid, i.e., the person who entered such opinions or conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based. Dunn v. McIntyre, 146 Ga. App. 362, 363 (2) (246 SE2d 398) (1978); Stoneridge Properties v. Kuper, 178 Ga. App. 409, 412 (1) (343 SE2d 424) (1986). See also Hurt v. State, 239 Ga. 665, 673 (10) (238 SE2d 542) (1977). Since the person who conducted the test and made the report was not present and did not testify as to the basis of the report, the trial court did not err by sustaining the State’s objection to admission into evidence of the computer printout.

Decided September 9, 1987.

Christopher P. Brooks, Susan P. Tate, for appellant.

Kenneth Stula, Solicitor, for appellee.

Judgment affirmed.

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


text:
    74499.
    MULLINS v. WHEATLEY GRADING CONTRACTORS, INC.
    (361 SE2d 10)
   Sognier, Judge.

William B. Mullins, trustee under the will of D. F. Mullins, Jr., brought an action against Wheatley Grading Contractors, Inc., and Larry Prather, Chairman of the Columbia County Board of Commissioners, alleging damage to property resulting from the construction of a sewer line across the Mullins’ property. After Wheatley’s motion for summary judgment was granted, Mullins voluntarily dismissed Prather from the action and filed this appeal from the trial court’s grant of summary judgment in favor of Wheatley.

The record establishes that in 1972, D. F. Mullins, Jr. granted to Columbia County an easement across his property for the installation of a sewer line, and that appellee was a contractor on this project. It is undisputed that the agreement by which the county obtained the right to construct the sewer contemplated that upon completion of the work on Mullins’ property, appellee would install a fence, and would, insofar as possible, restore the property to its former condition. In support of its motion for summary judgment, appellee proffered the affidavit of its president, George L. Wheatley, who stated on personal knowledge that the company had caused no damage to the land, and had properly installed a cyclone fence. In addition, Wheatley stated that all work on the property was completed by the spring of 1974. In opposition to the motion, appellant submitted the affidavit of JoAnn Mullins, widow of D. F. Mullins, Jr., who stated on personal knowledge that the fence was never completed nor was the property properly restored. Nothing in her affidavit, however, rebuts appellee’s evidence that no work on the Mullins property was done after 1974, and it is thus uncontroverted that the last work performed by appellee on appellant’s property was completed more than 10 years prior to the initiation of this action.

1. OCGA § 9-3-30 provides that “[a]ll actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues.” Appellant contends, however, that the trial court erred by granting summary judgment in favor of appellee because the acts and omissions complained of constitute a continuing nuisance, to which the statute of limitations does not apply. We do not agree. Although appellant argues that the presence of gradually occurring soil erosion on the property, allegedly resulting from appellee’s acts or omissions, supports his claim that a continuing nuisance exists, the record shows the recovery sought was for damage to the property directly inflicted during the time of construction. “Where property has been taken or damaged for public purposes by public authorities or a quasi-public corporation, the party injured, being entitled under the constitution ... to ‘just and adequate compensation,’ may bring one action therefor, within the time required by the statute of limitations, dating from the time of construction, not in tort for a nuisance, but to recover for the direct damage inflicted by the decrease in market value of the property damaged. . . .” Georgia Power Co. v. Moore, 47 Ga. App. 411, 413 (2) (170 SE 520) (1933). An action sounding in nuisance was therefore improper, and since appellant failed to bring an action within the time required by the statute of limitations, which ran from the time of the construction, the trial court did not err by granting summary judgment to appellee.

2. Appellant also alleges the trial court erred by granting summary judgment in favor of appellee on its claim for breach of contract. Appellant argues that the six-year statute of limitations for simple contracts in writing, set forth in OCGA § 9-3-24, did not begin to run in this case because no time was fixed in the contract for appellee’s performance. This contention is not meritorious. Any “agreement” made by appellee directly with appellant was not supported by consideration and is therefore unenforceable. OCGA § 13-3-40 (a). Further, assuming without deciding that appellant is entitled to maintain an action as a third-party beneficiary of the contract between appellee and the county, see Plantation Pipe Line Co. v. Three-D Excavators, 160 Ga. App. 756 (287 SE2d 102) (1981), it was, or should have been, apparent to appellant that appellee had substantially completed its work on appellant’s property in 1974, when appellee removed its employees and equipment. Therefore, if further work was required of appellee, the contract was breached at that time, and the statute of limitations began to run. The record clearly reveals appellant was aware of any breach at that point. Any oral promises made by appellee to remedy the alleged breach would not toll the statute of limitations since there is no allegation here of actual fraud in any promises made, and contrary to appellant’s argument, “only actual fraud tolls the statute of limitations.” Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980); OCGA § 9-3-96. Rogers v. Norvell, 174 Ga. App. 453, 458 (2) (330 SE2d 392) (1985), cited by appellant, is inapposite in that Florida law was applied in reaching the decision under the facts of that case.

Decided September 9, 1987.

Allen W. Johnson, for appellant.

David H. Hanks, Tandy M. Menk, for appellee.

In the instant case, the trial court did not err by granting summary judgment in favor of appellee on the claim for breach of contract.

Judgment affirmed.

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


text:
    74500.
    HOLLINGSWORTH v. HUBBARD et al.
    (361 SE2d 12)
   Carley, Judge.

On May 21, 1986, appellee-plaintiffs filed their complaint, seeking to recover for the personal injuries that they allegedly sustained in an automobile collision which had occurred on May 21, 1984. Appellant-defendant answered and, among his other defenses, raised the two-year statute of limitations as barring appellees’ action. Appellant subsequently moved for summary judgment as to his statute of limitations defense. His motion was denied, but the trial court certified its order for immediate review. Appellant’s application for an interlocutory appeal to this court was granted in order to determine the effect of the 1985 enactment of existing OCGA § 1-3-1 (d) (3) upon appellant’s statute of limitations defense.

Under the terms of former OCGA § 1-3-1 (d), May 21, 1984, the date that the automobile collision occurred, would be counted in the computation of the period of limitations, and the two-year period would thus have ended on May 20, 1986. See generally Reese v. Henderson, 156 Ga. App. 809 (275 SE2d 664) (1980). Thus, if the two-year statute of limitations is calculated pursuant to that former statute, appellant would be entitled to summary judgment. However, under the terms of the existing statute, May 21, 1984 is not to be counted in the computation of the period of limitations, and the two-year period would thus be extended by one day to May 21, 1986. If, therefore, the period of limitations is computed pursuant to existing OCGA § 1-3-1 (d) (3), then appellees’ complaint was filed in a timely manner. In Loveless v. Grooms, 180 Ga. App. 424 (349 SE2d 281) (1986), the applicable period of limitations had already expired prior to July 1, 1985, the date that existing OCGA § 1-3-1 (d) (3) became effective. Under those circumstances, we held that existing OCGA § 1-3-1 (d) (3) was not to be given retroactive effect, insofar as “[it] did not operate to breathe new life into the plaintiffs’ previously expired cause of action. [Cits.]” (Emphasis supplied.) Loveless v. Grooms, supra at 425. However, the facts in the present case are different from those in Loveless v. Grooms, supra. Appellees’ cause of action did not expire prior to the effective date of existing OCGA § 1-3-1 (d) (3). While the collision occurred prior to July 1, 1985, a calculation of the period of limitations under either former or existing OCGA § 1-3-1 (d) (3) would result in a two-year period which ended subsequent to the effective date of the statutory change. Accordingly, the sole issue for resolution in this case is whether appellant, as a defendant, has a vested right to the employment of a method for computing the period of limitations which was in existence on the date of the collision, or whether appellees, as plaintiffs, have a right to the employment of a method for computing the period of limitations that became effective before their causes of actions were otherwise barred.

Decided September 9, 1987.

William P. Claxton, for appellant.

“Statutes of limitation look only to remedy and not to substantive rights, and, unless the cause of action is barred at the time of the passage of the act extending the statute of limitation, it will be effective. [Cits.] ‘No man has a vested right not to pay a tax or other obligation which he really owes. So that an extension of the time within which the obligation may be enforced, or the entire abolition of the limitation, is within rightful legislative power.’ [Cit.]” Dixie Constr. Co. v. Williams, 95 Ga. App. 767, 770 (98 SE2d 582) (1957). Thus, appellant has no vested right in the employment of former OCGA § 1-3-1 (d) (3) as a bar to appellees’ pursuit of their legal remedy against him. Appellees’ complaint having been timely filed within the applicable period of limitations as computed under existing OCGA § 1-3-1 (d) (3), it follows that the trial court did not err in denying appellant’s motion for summary judgment.

Judgment affirmed.

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

Christopher A. Townley, for appellees.


text:
    74571.
    JACKSON v. THE STATE.
    (361 SE2d 14)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged her with aggravated assault. After deliberating for less than three hours, the jury reported that it was unable to reach a verdict. The trial court gave an “Allen charge” and sent the jury back for further deliberations. Shortly thereafter, the jury returned a verdict of guilty. After the verdict was published, the trial court proceeded directly to the sentencing phase without dispersing the jury, and counsel for both appellant and the State presented factors for the trial court to consider in rendering its sentence. Immediately after the sentence had been pronounced, appellant’s counsel requested a poll of the jury. The poll was conducted and, appellant’s counsel having made no further objection or motion, the jury was excused. Appellant appeals from the judgment and sentence entered on the jury verdict.

Based upon events which occurred during the jury poll, appellant enumerates as error the trial court’s failure to order, on its own motion, further jury deliberations. A request for a jury poll is not timely if it is made “ ‘after sentence is passed.’ [Cit.] (But a defendant may be entitled to a new trial if the judge pronounces sentence before the defendant has time to demand a poll of the jury. [Cit.])” Coleman v. State, 256 Ga. 306, 308 (2) (348 SE2d 632) (1986). See also Favors v. State, 234 Ga. 80 (6) (214 SE2d 645) (1975). Thus, insofar as appellant failed to avail herself of the opportunity to request a poll prior to the actual pronouncement of sentence, the trial court would have been authorized to refuse the request as untimely. However, insofar as the trial court did grant the untimely request, we will address the merits of appellant’s enumeration.

Assuming without deciding that the poll revealed that one of the twelve jurors expressed uncertainty as to the guilty verdict in this case, “ ‘[t]he proper motion would have been, that, the verdict be not received and the jury be directed to retire to their room for further deliberation on the case.’ ” Mills v. State, 160 Ga. App. 49 (2) (286 SE2d 55) (1981). Thus, it was incumbent upon appellant’s counsel to move for further deliberations and, absent such a request, the trial court was not required to order such deliberations. By failing to make any motion during or following the jury poll, appellant waived any objection to the trial court’s reception of the verdict. See generally Tucker v. State, 252 Ga. 263 (312 SE2d 300) (1984).

Judgment affirmed.

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

Decided September 9, 1987.

George A. Zettler, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.


text:
    74580.
    WILLIAMS v. THE STATE.
    (361 SE2d 15)
   Carley, Judge.

Appellant was tried before a jury on an indictment charging him with two counts of armed robbery and one count of possession of a firearm during the commission of a crime. The jury returned a verdict of guilty on all counts. Appellant’s motion for new trial was denied and he appeals from the judgment of conviction and sentence entered on the jury verdict.

At trial, two witnesses for the State testified that fingerprints at the scene of the crime matched those of appellant. This testimony was based upon the expert’s comparison of the fingerprints found at the scene of the crime with a fingerprint card which bore appellant’s prints and which had been taken in conjunction with another criminal investigation conducted in 1977. Appellant’s counsel objected to the admission of the fingerprint card, asserting that any reference on its face to another criminal investigation in 1977 would have the erroneous effect of introducing appellant’s character into evidence. The trial court agreed but, rather than excluding the fingerprint card from evidence, it ordered that the objectionable information be whited-out. The copy of the fingerprint card that was sent out with the jury contained only general information concerning appellant and made no reference either to the date or to the purpose for which his prints had been taken. On appeal, appellant’s sole enumeration of error is the admission into evidence of the copy of his altered 1977 fingerprint card.

“A fingerprint is far from fungible. ... A fingerprint card, thus, may be admitted into evidence without the showing of a chain of custody since it can be readily identified by reference to the subject’s fingerprints.” Hill v. State, 254 Ga. 213, 214 (3) (326 SE2d 757) (1985). Accordingly, there is no requirement that, in order for a defendant’s fingerprint card to be admissible, it must have been taken in connection with the investigation of the crime for which he is currently being tried. There is “no error in admitting [evidence of a defendant’s] fingerprints regardless of when they were taken. [Cits.]” Manor v. State, 223 Ga. 594, 595 (3) (157 SE2d 431) (1967). While it would be error to admit a defendant’s fingerprint card if it contained information which tended to place his character into evidence (see Manor v. State, supra at 597 (14)), no such error was committed in this case. The trial court ordered the removal of any information appearing on the face of the 1977 fingerprint card which might place appellant’s character into evidence. Compare Manor v. State, supra at 597 (14). Accordingly, appellant’s enumeration of error is without merit.

Decided September 9, 1987.

V. Gail Lane, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    74589.
    In the Interest of C. S. M.
    (361 SE2d 16)
   Carley, Judge.

Appellant was adjudged to be delinquent by an order of the juvenile court which was entered on October 6, 1986. Within 30 days thereafter, appellant neither filed a notice of appeal pursuant to OCGA § 5-6-38, nor sought an extension of time for filing a notice of appeal pursuant to OCGA § 5-6-39. Instead, on January 7, 1987, the juvenile court entered an order purporting to grant appellant an extension of time for filing a notice of appeal and, on that same day, appellant filed his notice of appeal. Pursuant to his January 7, 1987 notice of appeal, appellant appeals from the October 6, 1986 order wherein he was adjudged to be delinquent.

The initial issue for resolution is whether this court has jurisdiction to consider this appeal. “ ‘The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. [Cit.]’ [Cit.]” (Emphasis in original.) Knox v. State, 180 Ga. App. 564, 565 (349 SE2d 753) (1986).

No viable extension of the 30-day period within which appellant was otherwise required to file his notice of appeal has ever been granted in this case. “Any application to any court, justice, or judge for an extension must be made before expiration of the period for filing as originally prescribed. . . .” OCGA § 5-6-39 (d). The only extension of time that appears of record in this case is one which was granted on January 7, 1987, long after the expiration of the 30-day period “originally prescribed” for the filing of a notice of appeal from the juvenile court’s order of October 6, 1986. “[W]hen no application for extension of the time was made within the time prescribed by the statute, no valid order extending it could have been made, and the effort to give an order made after that time retroactive effect is unavailing.” Baxter v. Long, 122 Ga. App. 500, 502 (4) (177 SE2d 712) (1970). Even assuming that a timely extension had been sought and secured from the juvenile court within 30 days of October 6, 1986, the notice of appeal that appellant filed on January 7, 1987 would nevertheless be untimely. “Only one extension of time shall be granted for filing of a notice of appeal . . . , and the extension shall not exceed the time otherwise allowed for the filing of the [notice] initially.” OCGA § 5-6-39 (c). Thus, the juvenile court would have been authorized to grant only one 30-day extension and, had such an extension been timely sought and granted, appellant’s notice of appeal was filed long after that extension would otherwise have expired. See Smith v. Smith, 113 Ga. App. 111 (2, 3) (147 SE2d 466) (1966); Hamby v. State, 162 Ga. App. 348 (291 SE2d 724) (1982).

Decided September 9, 1987.

Joseph J. Saia, Lisa H. Richardson, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

Appellant “is not asserting any error of counsel in perfecting this appeal which might mandate this court to examine the merits under the authority of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985). By [appellant’s] failure to follow the required procedure, he has forfeited this review of his [adjudication of delinquency] on the merits. [Cits.]” Knox v. State, supra at 565. See also Rimes v. State, 182 Ga. App. 721 (356 SE2d 897) (1987).

Appeal dismissed.

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