text:
    77611.
    WHITE et al. v. KROGER COMPANY.
    (378 SE2d 732)
   Birdsong, Judge.

Grant of Summary Judgment. Undisputed facts reflect that in the summer of 1984, Mr. and Mrs. White had completed shopping for groceries at a Kroger store in Newnan. After loading the groceries into the car and trying to depart the parking area, it was determined that the car battery was “dead.” Mr. White left his family in the car while seeking help in getting the car started. It being summer, the interior of the car became oppressively hot and Mrs. White gave permission for her children to exit the vehicle but to stand alongside. Apparently her four-year-old William wanted a printed religious tract available for free from a rack immediately outside and adjacent to the entrance to the Kroger store. To the mother’s consternation, William and his nine-year-old sister proceeded from the side of the car to the entrance to the Kroger store to claim one of the tracts. The 9-year-old sister apparently had a firm grasp of the 4-year-old’s hand.

Leading from the Kroger store entrance toward the parking lot was a ramp that allowed shoppers to trundle carts across the sidewalk, down the ramp, across a roadway and into the parking lot to the purchaser’s car. There was no painted or otherwise marked pedestrian crosswalk from the end of the ramp to the edge of the parking lot. Immediately to the left and right of the entrance door, the mall had a covered sidewalk. Approximately 20-25 yards to the left of the main entrance to the Kroger store, in the front wall of the store, there was a small half door that shoppers could use to push shopping carts out onto the sidewalk, there to remain until the shoppers could reclaim their autos and drive up to the reserved parcel pick-up area. From the edge of the ramp to the left end of the Kroger store alongside the sidewalk, there was a curb. Along this curb, in the roadway, there was a painted area restricted to temporary parking for customers picking up parcels. This painted area was delineated not only by painted stripes but also by two four-foot high signs, one at each end of the parcel pick-up area warning patrons that parking was not permitted except for parcel pick-up.

While Mr. White was absent looking for help to start the car and after young William and his sister had arrived at the front entrance to the Kroger store, the co-defendant, John Lee Weathers, entered the shopping center and drove down the main entrance of the center through the parking lot to a “T” intersection with the roadway passing in front of the several stores, including the Kroger store. The entrance door and ramp to the Kroger store were directly to Weathers’ left front. Weathers stopped at the “T” intersection, looked right and left and seeing no oncoming traffic from either direction, turned left and passed the entrance and ramp to the Kroger store. Weathers remembered seeing Mr. White on his left at the side of a car in the parking lot. As he passed the parcel pick-up area, he felt a bump but did not see the cause of the bump. In fact, the car had made contact with 4-year-old William at the right front fender-bumper area, knocked him down, and passed over him.

Mrs. White exited her automobile when she saw the 9-year-old and the 4-year-old cross the roadway in front of Kroger. She was going after the two children. It was apparent that young William had seen his father in the parking lot and wanted to go to him. William pulled his hand free from his sister and ran or darted across the sidewalk from the entrance area, through the edge of the parcel pick-up area and into the open roadway. Mrs. White saw Weathers stop and make the left turn and saw William run into the roadway and into the car. Mr. White also saw the impending collision of child and car and screamed at Weathers to stop.

The father, as next of friend of his son, brought suit against Kroger, alleging negligence in failing to have a designated crosswalk from the ramp to the parking lot and in placing on the sidewalk or roadway two four-foot signs that could obscure the vision of a child from seeing approaching traffic or alternatively obscuring the vision of a motorist from seeing a small child.

Kroger moved for and was granted summary judgment. The Whites bring this appeal asserting there are unresolved questions of fact. They argue that Weathers conceded the signs could obscure his vision of a small child and further that if there had been a crosswalk, Weathers might have stopped a second time after making his left turn. Held:

Like the trial court, we find from the undisputed facts that the appellee Kroger was not guilty of contributory negligence to the injuries suffered by young William White and thus properly was granted summary judgment. Appellees raise conjectural questions of negligence but not disputed issues of material facts. See generally McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795) (shadowy semblance of an issue does not give rise to a genuine issue of material fact). Had young William traversed the ramp in front of the store entrance and been struck at, on, or in front of the ramp, then the contention that the absence or presence of a pedestrian crossing or warning thereof might have caused the exercise of more caution by Weathers might have had more merit. However, it is clear that young William did not use the ramp or roadway in front of the ramp but ran toward his father off to the left side of that ramp. Clearly then the presence or absence of a crosswalk is a wholly neutral factor under the facts of this case. The facts reflect that Weathers did stop and proceeded only when he observed no obstruction to his passage. Moreover, the presence of the two four-foot signs in or at the parcel pick-up area and the possibility of obscured vision is likewise a neutral factor. Had the collision and injuries occurred in the parcel pickup zone or on the sidewalk, again the presence of the signs and the propensity to obscure might have had relevance. But it is clear that the collision of boy and car occurred outside the parcel pick-up zone, in the open roadway. To conclude that the young child was seen himself or could see from within the pick-up zone would be a relevant test under these facts, is tantamount to saying that a pedestrian has no responsibility to look both ways before crossing a street from between a row of parked cars. Whether young William could or could not see Weathers’ car was not presented in this record except by the purest of speculation. Nor is any question of negligence on the part of Weathers in his degree of attention or inattention relevant to a question of negligence by Kroger in this appeal in the two respects advanced by the appellees.

Where the movant has pierced the allegations of the pleadings and shown the truth to the court (as in this case by evidence), he may receive a grant of summary judgment where there is no genuine issue of material fact considering all the pleadings and evidence. Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465); Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442). Kroger, as one of the proprietors in a shopping center, is not the insurer of the safety of invitees on the premises of the center against all negligent acts of co-invitees. Watson v. McCrory Stores, 97 Ga. App. 516, 519 (103 SE2d 648). There was no error in the grant of summary judgment to the Kroger Company.

Decided February 16, 1989.

David A. Swift, for appellants.

Richter, Willis & McKenzie, Edward L. Long, Jr., Beck, Owen & Murray, Samuel A. Murray, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    77692.
    77693.
    HORNE’S PEST CONTROL COMPANY, INC. v. ELLIOTT. TERMINIX SERVICE, INC. v. ELLIOTT.
    (378 SE2d 734)
   McMurray, Presiding Judge.

Plaintiff Eunice B. Elliott brought this “wood infestation” suit against Terminix Service, Inc., d/b/a Wright/Terminix Service (“Terminix”) and Horne’s Pest Control Company, Inc. (“Horne’s”). She alleged that Terminix negligently inspected a house which she purchased in the summer of 1985; that Horne’s negligently inspected the house, too; and that Horne’s negligently repaired the house. Special damages and punitive damages were sought against each defendant. Answering the complaint, defendants denied they were liable to plaintiff.

At the close of the evidence, defendants moved for a directed verdict on the ground, inter alia, that plaintiff failed to prove damages. The motion was denied and the case was submitted to the jury.

The jury returned a verdict in favor of plaintiff and against defendants for special damages, in the amount of $9,132.55, and punitive damages, in the amount of $50,000. Judgment was entered accordingly. Following the denial of their motions for new trial or, alternatively, their motions for judgment notwithstanding the verdict, defendants appealed. Held:

Terminix inspected plaintiff’s house before she purchased it in the summer of 1985. It delivered a “wood infestation report” to the seller of the house showing some structural damage. When the report was presented at closing, the closing was stopped. Thereupon, Horne’s was asked to inspect the house and to give an estimate for repairs. While the closing was being delayed, Horne’s inspected the house and informed the seller that it would repair the house for $2,700. The seller hired Horne’s to repair the house for that amount.

The closing was held in escrow pending receipt of a “clearance” letter from Horne’s. Horne’s rendered such a letter a few days later (even though it had not started work on the house) and the closing went through.

Shortly after Horne’s completed the repairs, plaintiff realized that severe structural defects remained. In fact, the damage to plaintiff’s house was far more extensive than either Terminix or Horne’s had indicated.

In December 1985 a general contractor gave plaintiff an estimate to repair the house. He did not go underneath the house at that time. Rather, he prepared the estimate based upon what plaintiff told him needed to be done. (The contractor did go under the house in 1987 and 1988. And while he believed the structural damage which he observed on those occasions had been there for a long time, he admitted that he had no way of knowing conditions under the house in the summer of 1985. As he put it, parts of the house could have been different, parts not.)

The contractor’s 1985 estimate was for $9,132.55. (The contractor also submitted an estimate of over $49,000 based on his visit to plaintiff’s house in 1988. This estimate was much higher than the 1985 estimate because it called for more extensive repairs pursuant to the recommendations of a consulting engineer. The trial court would not permit the jury to consider the 1988 estimate.) The repairs which were to be made pursuant to the 1985 estimate were basically “cosmetic.”

One price appears at the bottom of the 1985 estimate sheet. The price included such items as new kitchen countertops, doors, wallpaper and painting, in addition to replacing hardwood floors, sub-floors, and sheetrock.

“A jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position where an allowance of loss is based on guesswork.” General Warranty Corp. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 437 (4) (356 SE2d 83). In cases of this kind, the measure of damages is the cost of restoring the house to its original condition, unless, of course, the cost of restoration is unreasonable. Getz Svcs. v. Perloe, 173 Ga. App. 532, 535 (3) (327 SE2d 761). In this regard, it must be shown what such costs would have been upon the discovery of the damage — subsequent restoration costs are immaterial. Getz Svcs. v. Perloe, 173 Ga. App. 532, 536, supra; Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 756 (266 SE2d 531). Moreover, the costs of renovating a home, as opposed to restoring it, cannot be recovered. Getz Svcs. v. Perloe, 173 Ga. App. 532, 535, supra.

Decided February 16, 1989.

Bush, Wallace & Craig, Daniel J. Craig, for appellant (case no. 77692).

Michael W. Millians, for appellant (case no. 77693).

Stephen E. Curry, Scott J. Klosinski, for appellee.

Looking at the 1985 estimate one cannot discern whether the items listed thereon were to be for restoration or renovation. (Were new kitchen countertops to be installed for restoration purposes?) And plaintiff offered no evidence in this regard. Thus, plaintiff failed to provide sufficient data to enable the jury to determine without speculating the special damages stemming from defendants’ alleged negligence.

Where neither general nor nominal damages are sought and the special damages alleged are not proven, punitive damages are not recoverable. Beverly v. Observer Pub. Co., 88 Ga. App. 490 (77 SE2d 80); Daiss v. Woodbury, 163 Ga. App. 88 (293 SE2d 876). Since plaintiff did not seek general or nominal damages and she failed to prove alleged special damages with the required specificity, she was not entitled to recover punitive damages against defendants. It follows that the verdict and judgment must be set aside. The trial court erred in failing to grant defendants’ motions for new trial, or alternatively, their motions for judgment notwithstanding the verdict.

Although plaintiff did not prove the amount of special damages with the requisite degree of specificity, she did show that she was damaged in some (albeit unspecified) amount. Accordingly, we will exercise our discretion to meet the ends of justice and order that a new trial be had. OCGA § 9-11-50 (e). See Roland v. Byrd, 163 Ga. App. 408, 411 (294 SE2d 626).

Judgment reversed in each case with direction.

Pope and Ben-ham, JJ., concur.


author: Benham, Judge.

text:
    77682.
    HARVILL v. THE STATE.
    (378 SE2d 917)
   Benham, Judge.

This appeal is from appellant’s convictions for trafficking in cocaine, possession of marijuana, and possession of a firearm by a convicted felon. He raises issues involving his motion to suppress evidence, the admissibility of evidence, discovery, the sufficiency of the evidence, and the denial of a motion for continuance.

1. When appellant sought a hearing on his motion to suppress the fruits of a search of his home, the trial court refused to conduct a hearing and denied appellant’s motion. The basis for the trial court’s ruling was that appellant had already been afforded an evidentiary hearing on the validity of the search of his house during the proceedings leading to the revocation of his probation. Appellant enumerates as error the trial court’s denial of his motion without affording him a hearing. We agree with appellant.

The Supreme Court has held in a criminal case that a court may take judicial notice of its own records in the immediate case or proceedings before it (State v. Brinson, 248 Ga. 380 (4) (283 SE2d 463) (1981)), and has ruled in a civil case that a court may take judicial notice of all its records (Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984)). It has not, however, held that a court trying a criminal case can, as did the trial court in this case, take judicial notice of and give res judicata effect to a judgment entered in a non-criminal case. This court, however, has addressed the issue more directly: “ ‘(T)he judgment in a civil action is not admissible in a criminal action to prove any fact determined in the civil action.’ [Cit.]” Flynt v. State, 153 Ga. App. 232, 243 (264 SE2d 669) (1980).

“ ‘A revocation hearing is not a criminal trial.’ [Cit.] . . . ‘(A) criminal prosecution and a probation revocation proceeding based on the same occurrence actually have nothing to do with each other.’ [Cit.]” Teague v. State, 169 Ga. App. 285 (1) (312 SE2d 818) (1983). This court held in Teague that a ruling favorable to a probationer in a probation revocation hearing would not bar a subsequent criminal trial based on the same acts alleged in the probation revocation petition. The obvious converse of that holding is that a decision in a revocation proceeding adverse to the probationer cannot be used by the State to prevent a criminal defendant from obtaining a decision by the trial court in the criminal case on the merits of the issues raised therein. We hold, therefore, that the trial court erred in refusing on the ground that the issues had been ruled on in the revocation proceeding to conduct a hearing on and render a decision on the merits of appellant’s motion to suppress.

Although the motion was minimal, we disagree with appellee that it was insufficient to require an evidentiary hearing. Although it did not present much detail about the search, appellant’s motion was as complete as the one discussed in State v. Slaughter, 252 Ga. 435 (315 SE2d 865) (1984).

We also reject appellee’s argument that appellant waived his right to seek suppression of the evidence seized in a search of his home. The argument that appellant waived the right to insist on the motion because he did not object when the evidence was offered at trial is controlled adversely to the State by Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981). The State’s assertion that appellant waived the motion by announcing ready for trial is equally without merit: the trial court’s remarks concerning appellant’s announcement were made in regard to another matter; the announcement was not the reason the trial court declined to hold an evidentiary hearing; and appellant’s counsel stated on the record that he had announced ready for trial subject to his motion to suppress. We find no waiver of appellant’s right to a hearing on this motion to suppress and hold that the trial court erred in refusing to conduct a hearing and rule on appellant’s motion to suppress.

2. The trial court’s denial of appellant’s motion in limine concerning photographs seized in the search is the subject of appellant’s second enumeration of error. Numerous photographs made in appellant’s house, most of them apparently depicting nude women, were seized during the search. Although reference was made to the large group of photographs, only a few were admitted at trial. Appellant argues that the photographs were irrelevant to the issues at trial and were offered only to inflame the jury against appellant because of his sexual behavior. However, the photographs which were offered and admitted into evidence each depicted, in addition to a woman, a bag of green leafy material consistent in appearance with marijuana. Under those circumstances, the photographs were items associating appellant with the crime for which he was being tried, and we find no error. Felker v. State, 252 Ga. 351 (5b) (314 SE2d 621) (1984).

3. In his third enumeration of error, appellant contends that the trial court’s refusal to exclude the results of a scientific test requires reversal of his convictions. The test involved determined that white powder on a razor blade was cocaine. The State sought to excuse its failure to serve appellant with the test results in a timely fashion by showing that the test was not ordered until it was too late to get the results 10 days before trial. See OCGA § 17-7-211. In fact, it transpired at trial that the prosecuting attorney had not received a copy of the test results from the witness until after the witness testified at trial. Nonetheless, appellant contends that the fact that the State knew the test had been conducted obligated it to obtain the results and serve him with them. For reasons stated below, we find it unnecessary to decide in this case whether there was a violation of the statutory discovery rights of an accused. We do wish to note that although there is no indication in the record of this case of purposeful failure to obtain the results of the test, we will not condone the intentional failure to receive results of scientific tests as a tactical measure which prevents the defense from discovering such results.

In the present case, any error which may have resulted from the failure of the State to obtain and provide to appellant the results of the test of the powder on the razor blade was harmless because there had already been admitted evidence of appellant’s possession of more than 28 grams of cocaine. When properly admitted evidence of guilt is so overwhelming as to negate the possibility that the tainted evidence contributed to the verdict, the error may be harmless (Ellis v. State, 256 Ga. 751 (2) (353 SE2d 19) (1987)), and we find it so here.

4. Appellant’s fourth enumeration of error is directed to the denial of his motion for directed verdict. His argument, however, concerns the admission of evidence seized in the search of his home, an issue properly addressed in a motion to suppress. We have nonetheless examined the record and found evidence sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It follows, therefore, that there was no error in denying appellant’s motion for a directed verdict of acquittal. Garrett v. State, 184 Ga. App. 715 (3) (362 SE2d 423) (1987).

5. The last two enumerations complain of the State’s failure to make timely service of the list of witnesses and of the trial court’s denial of appellant’s motion for a continuance «based on the untimely service of the list. We find no error.

“[T]he ‘transcending purpose of [OCGA § 17-7-110] is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial.’ [Cit.] . . . ‘What is required is that the list must be complete within a reasonable time before trial so that the defense may be adequately prepared. What constitutes a reasonable time before trial must depend upon the nature of the case, the number of the state’s witnesses, the nature of their testimony, and any other factor which may logically bear upon the question.’ [Cit.]” Ellis v. State, 248 Ga. 414 (3) (283 SE2d 870) (1981). The record of this case shows that a list of six witnesses was served on defense counsel three days before the trial began. Of those six witnesses, however, it appears that defense counsel was unaware of only one witness’s connection with the case. The trial court noted that defense counsel already knew of the other five, that he had cross-examined several of them at the revocation hearing, and that he would have time before the trial commenced to interview the one with whom he was not familiar. Considering the factors listed in Ellis, we find no abuse of the trial court’s discretion in refusing to exclude the testimony of the witnesses whose names were provided the week of trial or to continue the case to permit counsel to investigate.

6. We have considered appellant’s enumerations of error and have found none of them to be meritorious except the second, complaining of the denial of appellant’s motion to suppress. Since that error permitted the introduction of evidence without giving appellant the opportunity granted by statute to contest in this prosecution the legality of the search of his home, we cannot say that it is harmless beyond a reasonable doubt. We therefore remand this case to the trial court with direction to conduct a hearing on appellant’s motion to suppress. Should the trial court grant appellant’s motion, he would be entitled to a new trial. Should the trial court, however, deny appellant’s motion on the merits, appellant would be entitled to file a new appeal from his conviction, an appeal limited in scope to the denial of the motion to suppress. See generally State v. Slaughter, supra at 441; Cofield v. State, 247 Ga. 98 (3) (274 SE2d 530) (1981).

Decided February 17, 1989.

William D. Smith, for appellant.

Frank C. Winn, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Case remanded with direction.

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


author: Sognier, Judge.

text:
    77813.
    PAGE et al. v. GUIN et al.
    (378 SE2d 736)
   Sognier, Judge.

In the first appearance of the parties in this boundary line processioning case, Page v. Guin, 187 Ga. App. 143 (369 SE2d 517) (1988), we held that the findings of the trial court contained an accurate description of the true property line and were supported by the evidence, thereby establishing that the correct boundary line was the one respecting the fence line of the defendants/appellees Guins. Because the fence line curved, the trial court’s order established “that the true boundary line shall commence at the uncontested southernmost corner between the two properties and should run in a northwesterly direction in a straight line to the eastern-most point of the first curve in the fence; from there in a straight line to the next eastern-most point, etc., to a point where said line intersects with the property line of an adjoining land owner not a party to this action.” Id. at 144. However, this court held in regard to the judgment rendered by the trial court that it was not sufficient of itself to serve as a return of processioning. Thus, we remanded the case to the trial court “to permit either party, within thirty days of remittitur, to present a proposed supplemental order including a plat which would reflect the description contained within the court’s order. Without such a plat, the order will serve merely as a rejection of the return of the processioners though the judgment will, of course, serve as the law of the case concerning the court’s findings of fact. However, if either party wishes the judgment to serve as a certified survey as provided in OCGA § 44-4-3, that party may respond to the court’s request and submit for the court’s approval a surveyor’s plat conforming to the findings of fact contained within the judgment.” Id. at 147.

Decided February 17, 1989.

David R. Pittman, for appellants.

Ben P. Jackson, Jr., for appellees.

Within thirty days of remittitur, the Guins, appellees here and in the earlier case, submitted a proposed supplemental order including a plat which reflected the description contained within the trial court’s order. The trial court adopted the order and approved the surveyor’s plat. Plaintiffs/appellants Raymond and Gladys Page appeal therefrom.

Appellants’ sole enumeration on appeal contains the asserted error that the plat submitted by appellees and approved by the trial court was in direct conflict with the description contained within the earlier order affirmed by this court. However, in their argument before this court, appellants do not contest the accuracy of the plat but instead argue that the line established by the earlier order as reflected in the plat was incorrect, specifically in that the trial court, by drawing straight lines from eastern most point to point on the curving fence, improperly included the property within the curves. The order establishing the line which appellants seek here to challenge anew was affirmed by this court in Page, supra, which, as the law of the case, OCGA § 9-11-60 (h); Blake v. Continental Southeastern Lines, 168 Ga. App. 718, 720 (309 SE2d 829) (1983), leaves us without authority to consider appellants’ enumeration. Mansell v. Benson Chevrolet Co., 165 Ga. App. 568, 569 (1) (302 SE2d 114) (1983).

Appellees have moved this court to impose on appellants a penalty for pursuing a frivolous appeal. There having been no reasonable ground upon which appellants could have anticipated the reversal of an order previously affirmed by this court, a penalty in the amount of $500 is hereby assessed against appellants pursuant to Rule 26 (b) of this court for filing a frivolous appeal. The trial court is hereby directed to enter judgment in favor of appellees in said amount.

Judgment affirmed and case remanded with direction.

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


text:
    77850.
    HERRERAS v. THE STATE.
    (379 SE2d 12)
    Decided February 17, 1989.

      M. C. Pritchard, for appellant.

      Harry D. Dixon, Jr., District Attorney, Margaret M. Edwards, Assistant District Attorney, for appellee.
   Sognier, Judge.

Dimas Nicholas Herreras was convicted on charges of rape, aggravated sodomy, kidnapping, armed robbery, burglary, theft by taking of a motor vehicle, and possession of a knife during the commission of a felony. He appeals.

Appellant contends in his sole enumeration that the trial court erred by denying his motion and objection to the presence of the sheriff at the prosecution’s table during jury selection. The record reveals that the prosecuting attorney requested the court to allow the sheriff to remain at the table for the purpose of assisting with the selection of jurors, and stressed to the court that the sheriff’s presence was requested only during jury selection and that he would not remain at counsel table during trial.

Appellant’s enumeration is controlled adversely to him by Childs v. State, 257 Ga. 243 (357 SE2d 48) (1987), in which the court approved the sheriff’s presence at the prosecution table despite the invocation of the rule, and noted; “ ‘[i]t has been repeatedly held that it is within the discretion of the trial judge to permit a witness to remain in the courtroom to assist either the State or the accused.’ [Cit.] Generally, this discretion should be exercised only if the party requesting the exception can demonstrate a need for the presence of the witness. [Cits.] However, the sheriff is an officer of the court, and may be excepted from the rule on the court’s own initiative. [Cits.] Thus, we need not evaluate the state’s asserted need for the assistance of the sheriff, as a demonstration of such was unnecessary to the court’s exercise of discretion.” Id. at 251 (11).

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    77898.
    SCOTT v. THE STATE.
    (378 SE2d 738)
   Birdsong, Judge.

Alfred Scott, Jr., was convicted by a jury of criminal trespass and sentenced to 12 months; 48 days in confinement and the remainder on probation. Scott brings this appeal enumerating two alleged errors. Held:

1. In his first enumeration of error, Scott asserts the trial court erred in allowing evidence of prior, uncharged misconduct wherein Scott was earlier tried for simple battery upon the victim of the criminal trespass but found not guilty. We find no merit in this enumeration. In the first instance, the State never introduced any evidence of a criminal trial for simple battery and consequently the result of such a trial likewise was never presented to the jury. On cross-examination, in an effort at impeachment, the appellant exhibited to the victim a copy of her testimony at a trial but the underlying charge and result of that trial were never introduced. Secondly, the principal issue presented at the trial was whether the victim could identify Scott as the intruder into her apartment and if so, his motive for doing so, there being no evidence of theft occurring therein or any effort directed toward harming the victim. Moreover, it was incumbent upon the State to prove as one of the elements of the offense that the victim, in some appropriate manner, had communicated to Scott that his presence at that apartment was prohibited. All of the victim’s testimony was directed towards Scott’s continuing harassment and her efforts, personally and through judicial intervention, to make that harassment cease.

We are satisfied that the evidence adduced by the State was admitted properly to indicate the improbability of misidentification, to establish knowledge by Scott that he was not welcome on the invaded premises (Wyatt v. State, 206 Ga. 613, 616-617 (57 SE2d 914)), and to establish a motive, intent, or bent of mind toward his victim. See Hales v. State, 250 Ga. 112, 113 (296 SE2d 577) (motive). Moreover, it is clear that the testimony of which complaint is made was elicited as much by defense counsel as by the' assistant solicitor. Assuming arguendo that the evidence was improperly adduced, it cannot be made a valid subject of error inasmuch as it was fully pursued by appellant. See Clyatt v. State, 126 Ga. App. 779, 783 (192 SE2d 417).

2. In his second enumeration of error, Scott argues the trial court improperly curtailed his cross-examination of the victim wherein appellant sought to show that the victim had loved Scott in the past and was caused to accuse him of criminal conduct through motives of jealousy. Though counsel for Scott was curtailed in extended cross-examination of the victim, evidence was adduced as to the past relationship of Scott and the female victim; that she had professed love for him in the past; that they had cohabited even if only briefly; that she had worked for Scott and had accepted personal services from him in the recent past. Where the subject matter of the alleged curtailed cross-examination has been successfully explored and answered by a witness, the trial judge does not unduly limit a defendant’s right to a thorough and sifting cross-examination by refusing to allow it to be repeated or explored further. Garrett v. State, 141 Ga. App. 584 (2) (234 SE2d 161). The scope of cross-examination lies largely within the discretion of the trial court. We will not disturb the exercise of that discretion where, as here, there has been no abuse of that discretion. Crowder v. State, 233 Ga. 789 (6) (213 SE2d 620). There is no merit to this enumeration of error.

Decided February 17, 1989.

James Archie, for appellant.

Ralph T. Bowden, Jr., Solicitor, Ann M. Elmore, N. Jackson Cotney, Assistant Solicitors, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77196.
    WILLIAMS v. THE STATE.
    (378 SE2d 886)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)). Held:

1. The offense of which defendant was convicted was committed on July 2, 1986. At that time OCGA § 40-6-391 (a) (1) did not state the requirement of proof that the driver be under the influence of alcohol to the extent that it is less safe for the person to drive. However, prior to the amendment by Ga. L. 1988, p. 1893, which added this provision to the statute, such a requirement had been judicially imported. Groom v. State, 187 Ga. App. 398, 400 (2) (370 SE2d 643). See also Cargile v. State, 244 Ga. 871 (1) (262 SE2d 87); Jones v. State, 168 Ga. App. 106 (1) (308 SE2d 209); and Peters v. State, 175 Ga. App. 463 (1) (333 SE2d 436) (overruled on other grounds in Hogan v. State, 178 Ga. App. 534, 535 (343 SE2d 770)). Defendant contends that there was not sufficient evidence that he was a less safe driver.

The arresting officer testified that there was an odor of alcohol about the car driven by defendant, that defendant was unstable on his feet and his speech was slurred. The arresting officer stated that, based on his experience of almost 20 years as a police officer and having observed four or five hundred people driving under the influence of alcohol, defendant was under the influence of alcohol and that defendant’s driving ability was impaired as a result of his being under the influence of alcohol.The evidence was sufficient to allow a rational trier of fact to find defendant guilty beyond a reasonable doubt of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Clark v. State, 178 Ga. App. 47, 48 (3) (341 SE2d 909); Morgan v. State, 181 Ga. App. 150, 151 (351 SE2d 497).

2. Following the defendant’s cross-examination of a State’s witness, a police officer who attempted to administer an intoximeter test on defendant, defense counsel requested permission to approach the bench. After a short conference, the jurors were removed and in their absence defendant moved for a mistrial on the grounds that a juror was asleep. The prosecuting attorney conceded that when his attention had been directed to the juror by defense counsel, the juror had appeared to have been asleep. Defendant, enumerates as error the denial of his motion for mistrial.

“Should a juror fall asleep during the course of a trial it is the duty of the trial judge to awaken him. Should counsel or the parties in the trial observe a sleeping juror it is their duty to bring it to the attention of the court.” Foster v. State, 255 Ga. 425 (2) (339 SE2d 256). In the case sub judice, there is nothing in the record which would suggest that either the trial court or counsel neglected their duty. There is no indication that the juror’s nap was anything other than momentary. Therefore, we find no abuse of discretion in the trial court’s determination that the awakening of the juror was sufficient corrective action. We find no error in the denial of defendant’s motion for mistrial. Accord Foster v. State, 255 Ga. 425, 426, supra.

3. The automobile driven by defendant was stopped by a police officer based on a radio lookout, broadcast by the Georgia State Patrol, for a driver under the influence in a 1986 Chevrolet Corvette bearing Georgia license JRJOY. A few minutes after receiving the lookout the officer spotted defendant’s vehicle and pulled it over. The police officer did not observe any violation prior to stopping defendant. Defendant contends the trial court erred in denying his motion for directed verdict of acquittal based on the absence of any showing that the arresting officer had probable cause or any other proper basis for stopping defendant.

A motion for directed verdict of acquittal is a challenge to the sufficiency of the evidence. The applicable test of the sufficiency of evidence is set forth in Jackson v. Virginia, 443 U. S. 307, supra. See Humphrey v. State, 252 Ga. 525, 526 (1) 527 (314 SE2d 436). Where a defendant has been indicted and convicted, an illegal arrest (or in the instance of a Terry stop (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)) is not in and of itself a ground of reversal. Thompson v. State, 155 Ga. App. 101, 103 (3) (270 SE2d 313). In the case sub judice, there has been no attempt to exclude any evidence as the fruit of an illegal arrest or seizure. Since the evidence was sufficient under the test provided by Jackson v. Virginia, 443 U. S. 307, supra (see Division 1 of this decision) this contention is without merit.

4. Defendant also contends that his motion for directed verdict of acquittal should have been granted due to the failure of the State to comply with that portion of OCGA § 17-4-23 (a) which requires that: “Whenever an arresting officer makes an arrest concerning the operation of a motor vehicle based on information received from another law enforcement officer who observed the offense being committed, the citation shall list the name of each officer and each must be present when the charges against the accused person are heard.” However, the defendant was not arrested based on the radio lookout, the “Terry-type” seizure was not an arrest; therefore, this statutory provision is inapplicable. The arrest of defendant was based entirely on evidence directly acquired by the .arresting police officer during the “Terry-type” stop. This enumeration of error is without merit.

Decided February 7, 1989

Rehearing denied February 20, 1989

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

Robert B. Whatley, Solicitor, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Pope, Judge.

text:
    77351.
    WALDEN v. CUTLERY CORPORATION OF AMERICA et al.
    (378 SE2d 697)
   Pope, Judge.

Appellant Polly Anne Walden was awarded workers’ compensation benefits for an injury she sustained on December 6, 1985, during the course of her employment at Cutlery Corporation of America. In September of 1987 the employee petitioned the State Board of Workers’ Compensation for the appointment of a rehabilitation supplier and requested a particular supplier by name. By order dated October 7, 1987, the board awarded the employee’s petition and, “pursuant to Code § 34-9-200.1 and Board Rule 200.1(c),” designated as principal rehabilitation supplier that rehabilitation specialist specifically requested by the employee. The employer objected to the award and appealed to the full board. The employer argued that pursuant to the above-noted statute and Board Rule, the employer is entitled to notice of a determination that rehabilitation is necessary and a period of fifteen days in which the employer may appoint a supplier, or controvert the determination of need, before a supplier may be appointed by the board. The full board affirmed the award and an appeal was filed with the superior court. The superior court reversed the decision of the board because it was “contrary to law.” We granted the employee’s application for discretionary review of the superior court’s order.

Decided February 2, 1989

Rehearing denied February 20, 1989,

Morse & Ontal, Jack O. Morse, for appellant.

The controversy in this case arises over conflicting interpretations of the requirements of OCGA § 34-9-200.1 (b) and Board Rule 200.1 (b) in effect at the time of the order (amended July 1, 1988). Said statute directs the board to make an assessment of the rehabilitation needs of the employee within forty-five days of notification of injury and directs the board to notify the parties if it determines that rehabilitation is necessary. In the event the board determines that rehabilitation is necessary, the employer is granted fifteen days either to controvert the determination of necessity or to appoint a rehabilitation supplier. Clearly, in the case of a determination of necessity on the board’s own motion, it is the employer which is granted the right to “appoint” the supplier. The statute, and the version of Board Rule 200.1 (b) in effect at the time of the order, also provide that any party may petition the board for an “appointment” even where the board has not yet made a determination of necessity. Does this language mean that in the event of a petition for appointment it is the board, and not the employer, which may appoint a supplier? We think not.

The statute grants the employer the first right to appoint a rehabilitation supplier. Only if the employer abdicates this right is the board authorized to appoint the supplier. We find nothing in the statute or that version of Rule 200.1 in effect at the time of this order to indicate that the procedure for appointing a supplier, when made in response to a petition by one of the parties, should be any different than the procedure for appointing a supplier when made in the routine course of determination of necessity by the board.

We hold that where the board is petitioned for an appointment of a rehabilitation supplier, the board must make a determination of necessity and, if it is determined that rehabilitation is necessary, then the employer must be given notice and fifteen days in which “to appoint a rehabilitation supplier or give reason why rehabilitation is not necessary,” as required by OCGA § 34-9-200.1 (b). The board “is an administrative body with only those powers and duties given it by statute.” National Biscuit Co. v. Martin, 225 Ga. 198, 199 (167 SE2d 140) (1969). In this case the board exceeded its authority in appointing a specific rehabilitation supplier without first giving the employer notice and an opportunity to name the supplier. Thus, the order of the superior court reversing the board’s order and remanding with the direction to follow the statute is affirmed.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Neely & Player, Andrew J. Hamilton, Joseph D. Perrotta, for appellees.

Janet E. Hill, Thomas F. Brown, Bonny B. Wilder, amici curiae.


author: Carley, Chief Judge.

text:
    77413.
    BUFFINGTON v. THE STATE.
    (378 SE2d 884)
   Carley, Chief Judge.

Appellant was tried before a jury and convicted of possession of cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilty.

1. Appellant enumerates the general grounds. The evidence showed the following: Appellant was arrested for driving under the influence. He consented to the performance of a blood test. A sample of appellant’s blood was tested by a forensic toxicologist at the Georgia State Crime Lab. The testing of the sample revealed the presence of a cocaine metabolite which “only comes from cocaine.”

“The presence of cocaine in a defendant’s bodily fluids is considered to be direct positive evidence of possession of cocaine. [Cit.]” Cauthen v. State, 177 Ga. App. 565, 566 (340 SE2d 199) (1986). See also Bentley v. State, 183 Ga. App. 112, 113 (3) (358 SE2d 274) (1987). Accordingly, there was sufficient evidence produced at trial to authorize any rational trior of fact to find appellant guilty beyond a reasonable doubt of possession of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Stevens v. State, 165 Ga. App. 814, 815 (1) (302 SE2d 724) (1983).

2. The admission into evidence of the results of the analysis of appellant’s blood samples is enumerated as error. Appellant urges that there was no proof that the blood was taken by a qualified individual.

“When a person shall undergo a chemical test at the request of a law enforcement officer under [OCGA §] 40-5-55, only a physician, registered nurse, laboratory technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein. . . .” OCGA § 40-6-392 (2). The undisputed testimony was that appellant’s blood sample was taken by a laboratory technician at Northeast Georgia Medical Center. Accordingly, this enumeration is without merit.

3. The State was allowed to introduce into evidence the results of the blood tests over appellant’s further objection that a proper chain of custody for the blood samples had not been established. This evidentiary ruling is enumerated as error.

“ ‘(W)here the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence. [Cit.] Hence, the burden is on the prosecution “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” [Cit.] However, the State need not negate all possibility of tampering, and “need only establish reasonable assurance of the identity” of the confiscated evidence. [Cits.]’ [Cit.]” Johnson v. State, 184 Ga. App. 745 (1) (362 SE2d 450) (1987). See also Rucker v. State, 250 Ga. 371, 373 (1) (297 SE2d 481) (1982); Meadows v. State, 135 Ga. App. 758 (219 SE2d 174) (1975). “ ‘In proving the chain of custody, the offering party is not required to show that the substance was guarded closely each minute, and in the absence of a showing to the contrary, the chain is not thereby broken. Moreover, in the absence of probative evidence of tampering, the chain is not shown to be broken, and where there is only a bare speculation of tampering, it is proper to admit the evidence and let any doubt go to its weight. [Cit.]’ [Cit.]” Fowler v. State, 179 Ga. App. 492, 494 (4) (347 SE2d 322) (1986);

Decided February 6, 1989

Rehearing denied February 20, 1989

Robinson Law Firm, LeRoy M. Robinson, Jr., for appellant.

C. Andrew Fuller, District Attorney, Jessica K. Vaughn, Assistant District Attorney, for appellee.

In the present case, there was, at most, “only a bare speculation of tampering.” Accordingly, the evidence was properly admitted and the jury was properly instructed as to the State’s burden with regard to the chain of custody of the blood sample.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    77710.
    BLUME v. RICHMOND COUNTY.
    (378 SE2d 694)
   Beasley, Judge.

Plaintiff appeals the judgment entered on a jury verdict in a condemnation case. The land involved consisted of a 30.62-acre tract, but the plaintiff contends that it had been subdivided into 40 separate individual lots. There are five enumerations of error but in essence plaintiff argues that it was error to exclude evidence of 40 individual tax appraisals and tax cards which would have shown a total value of $266,600 and to have failed to charge on this issue.

1. The transcript shows that the trial court indicated that it would not admit the separate tax records. However, when defendant’s counsel was asked whether he wanted to put “the record in,” he responded: “I haven’t moved the records in, but I probably would have.” He then obtained by cross-examination of an expert witness the fact there were tax records concerning the 40 separate parcels and that their total evaluation on the tax records, which constituted the basis for the tax assessments, was $266,600.

Decided January 31, 1989

Rehearing dismissed February 20, 1989

James F. Findlay, for appellant.

Robert C. Daniel, Jr., for appellee.

There was no error because “[i]n order to show error in the exclusion of evidence, it is necessary that evidence first be ‘offered.’ ” Watts v. Six Flags Over Ga., 140 Ga. App. 106, 109 (4) (230 SE2d 34) (1976). Furthermore, error, if any, in'the exclusion of evidence is harmless where substantially the same evidence is later admitted. Property Tax Research Co. v. Lewis Textile, 180 Ga. App. 247, 248 (2) (349 SE2d 8) (1986).

2. Evidence as to the tax appraisal valuation would not act as an estoppel against the condemnor. Housing Auth. of Atlanta v. Republic Lane &c. Co., 127 Ga. App. 84, 85 (2) (192 SE2d 530) (1972).

3. Plaintiff did not object to the charge and relies upon OCGA § 5-5-24 (c). On appeal, he contends that, in view of the issues as to admissions made by a party involving the tax appraisals, OCGA § 24-3-34 should have been charged. This code section relates to the admissibility of the evidence so is not pertinent to a jury’s consideration. The trial court did instruct as to plaintiff’s contentions regarding the value of the property as separate lots. Any failure to give further instructions did not fall within the “harmful as a matter of law” requirement necessary to invoke OCGA § 5-5-24 (c). “To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.” Hamrick v. Wood, 175 Ga. App. 67, 68 (2) (332 SE2d 367) (1985).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    77276.
    YATES v. DOE.
    (378 SE2d 739)
   Benham, Judge.

Appellant Yates was injured when the automobile she was driving struck a utility pole. Maintaining that she struck the pole when she swerved to avoid a collision with an automobile whose unknown driver had disregarded a stop sign, appellant filed suit against John Doe and served her uninsured motorist carrier (UMC). The UMC sought summary judgment on the ground that appellant had not provided the necessary corroborative evidence required by OCGA § 33-7-11 (b) (2). The trial court granted summary judgment to the UMC, and this appeal followed.

“[I]n order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” OCGA § 33-7-11 (b) (2).

On deposition, appellant testified that she swerved, thereby hitting the utility pole, to avoid colliding with a car whose driver ignored a stop sign and drove off after she had hit the pole. She testified that “a car coming up behind [the law-breaking driver] stopped . . . and he parked on the side and came over to where [she was].” The stranger had someone call the police and returned to the scene to await the arrival of an officer. Appellant testified that the man told her he had seen it all, and that he told the police what happened. Appellant did not know the stranger’s name or how to contact him.

The officer who responded to appellant’s automobile accident executed an affidavit in which he stated that appellant told him that she had struck the utility pole when she swerved to avoid a car running a stop sign. The officer averred that “[t]here was a black male standing near [appellant] who appeared to agree to the facts as stated by [appellant].” When the officer turned to question the man, he had left the scene. The officer stated that appellant told him the man was an eyewitness to the accident.

Appellant maintains that the statutory corroboration is established by the officer’s sworn recollection that the unidentified man appeared to agree with appellant’s statement of the facts of the collision. Even if we were inclined to endorse appellant’s broad definition of “corroboration,” we cannot agree with her conclusion that the unidentified stranger was an “eyewitness” to the occurrence. Appellant testified that the stranger had told her he had seen it all, but she admitted that she could not say what he had seen. Thus, appellant’s conclusion that the stranger was an eyewitness is hearsay, and is without probative value. See Roberson v. State, 187 Ga. App. 485, 487 (370 SE2d 661) (1988). Compare State Farm &c. Ins. Co. v. Yancey, 188 Ga. App. 8 (371 SE2d 883) (1988); Universal Security Ins. Co. v. Lowery, 182 Ga. App. 125 (354 SE2d 840), aff’d 257 Ga. 363 (359 SE2d 898) (1987). Nothing in the police officer’s affidavit supports the conclusion that the stranger was an eyewitness to the collision. Without that crucial ingredient, appellant was unable to satisfy the requirement of OCGA § 33-7-11 (b) (2), and the trial court did not err in granting summary judgment to the UMC.

Decided February 20, 1989.

P. Dewey Gill, for appellant.

Robert A. Reichert, Jonathan A. Alderman, for appellee.

Judgment affirmed.

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


text:
    77571.
    FIELDS et al. v. SMITH et al.
    (378 SE2d 741)
   Benham, Judge.

After appellees Smith filed a dispossessory action against appellants Fields, appellants filed a counterclaim seeking the return of $5,000 in goods and money paid by appellants to appellees pursuant to an option to purchase contained in the lease of residential property executed by the parties. This appeal was prompted by the trial court’s entry of judgment in favor of appellees.

In their “Lease and Option to Purchase Agreement,” the parties agreed that appellants had the option to purchase the property for $88,400, “payable as follows: (a) $1,000 cash at the execution of this Agreement; (b) [Appellants] to execute a Promissory Note in the amount of $4,000 . . . [Appellees] will hold a gun collection as collateral until this note is paid . . .” Appellants were also to assume the existing mortgage and pay the balance of the purchase price in cash at closing. “In the event [appellants] fail to notify [appellees] ... of [their] intention to exercise the option contained herein, ... all monies paid by [appellants] shall be considered rent and forfeited.” It is undisputed that appellants failed to exercise the option to purchase. Appellants contend they are entitled to the return of their property and money paid pursuant to the option to purchase because the forfeiture provision of the contract is illegal and an unenforceable penalty.

“. . . Georgia law . . . recognizes that the parties may agree in their contract to a sum to liquidate their damages. [OCGA §§ 13-6-1 and 13-6-7 provide]: ‘Damages are given as compensation for the injury sustained [as a result of the breach of a contract]. If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated, and unless the agreement violates some principle of law, the parties are bound thereby.’ In deciding whether a contract provision is enforceable as liquidated damages, the court makes a tripartite inquiry to determine if the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss. [Cits.]” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

Decided February 20, 1989.

Bailey Law Offices, Kirby G. Bailey, for appellants.

Ralph D. Vaughn, for appellees.

The record in the case before us “fails to address any one of the three matters enumerated in Southeastern in order to rebut appellants’ allegation that the [$5,000] sum was a penalty rather than liquidated damages.” Burns v. Gleason, 183 Ga. App. 245 (1) (358 SE2d 646) (1987). “It follows that the record does not establish that the contractual provision in question constituted an enforceable liquidated damages provision . . .” Thomas B. Hartley Constr. Co. v. Liberty Life Ins. Co., 187 Ga. App. 849, 850 (371 SE2d 657) (1988). In light of the dearth of evidence, the trial court erred in concluding the provision was not a penalty and in entering a judgment for appellees.

Judgment reversed.

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


text:
    77902.
    SHY v. THE STATE.
    (378 SE2d 920)
   Sognier, Judge.

Jimmy Shy was indicted for malice murder and felony murder and convicted of voluntary manslaughter, and he appeals.

Construing the evidence to support the verdict, the record reveals that appellant lived with his mother and his uncle. Also staying temporarily at the home was the victim, Reed, who had left her husband. Evidence was adduced that while appellant’s mother and Reed were in the kitchen, appellant entered the room carrying a gun, and told Reed he wanted her to leave the house because her presence was upsetting his mother. Appellant’s mother left the kitchen and went into her room, where she heard further argument between appellant and Reed from appellant’s room, followed by a gunshot.

Appellant admitted shooting Reed. He testified that he had taken the gun into the kitchen to frighten Reed into leaving the house, but that he had returned to his room and put down the gun when Reed came into his room after him brandishing a butcher knife. Appellant was aware that some years before, Reed had stabbed her husband, and testified that he was afraid she would do the same to him. He stated that she attempted to stab him several times, and he again picked up the gun. In his efforts to block her attempts to stab him, the gun hit the knife and discharged.

1. We find the evidence adduced at trial sufficient to enable a rational trier of fact to convict appellant of voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by allowing into evidence the testimony of Mark Peevy of the State Crime Laboratory giving his opinion on the physical and mental effects of alcohol on the human system because no proper foundation was laid for this testimony. The record does not support this enumeration. When appellant’s counsel objected, the State completed the foundation for the opinion testimony by establishing that Peevy had successfully completed a course at the Mercer School of Southern Pharmacy on drugs and alcohol and their effect on the central nervous system. Appellant did not object further to Peevy’s qualifications or to the foundation for his testimony. Appellant’s only other objection during Peevy’s testimony went to the form of the questions put to Peevy, which objection is not enumerated on appeal. Thus, we need not decide whether a proper foundation was laid because appellant abandoned his foundation objection. Appellant has not preserved this issue for review, and “ ‘this court will review and correct only such error as was made in the trial court and only on the specific basis on which it was presented to the trial court. [Cit.]’ [Cit.]” Chrysler Corp. v. Marinari, 182 Ga. App. 399, 403 (3) (355 SE2d 719) (1987).

3. Appellant asserts the trial court erred by instructing the jury, prior to the introduction of any evidence, that should they convict appellant of more than one charge he would be sentenced only on one. However, it is apparent that, rather than a subtle attempt to circumvent OCGA § 17-10-13, the trial court’s comment was actually an attempt to clear up the confusion left by references to more than one indictment in the opening statements of both the State and the defense, and to have the jury understand that they need not be concerned with sentencing in their consideration of the charges. Moreover, appellant raised no objection to this explanation by the trial court, and thus he cannot now complain. See generally Buckner v. State, 186 Ga. App. 376, 377 (367 SE2d 277) (1988).

4. Appellant next enumerates as error the trial court’s failure to give his requested charges numbered 1-10 and 14. We find no merit in this enumeration.

(a) Appellant’s requests to charge 1, 2, 5, and 6 related to voluntary manslaughter as a result of irresistible passion. Of these, appelIant’s request to charge number 2 was, in fact, given by the trial court in the exact language requested, and the remaining requests were covered in substance, although not in the exact language requested. Appellant’s requests 3 and 4, defining involuntary manslaughter, and 8, 10, and 14, dealing with justifiable homicide and self-defense, were also covered in the charge of the court. “ ‘It is not necessary to give the exact language of a request to charge when the same principles are fairly given in the general charge. [Cit.] . . .’” Farmer v. State, 185 Ga. App. 512, 513 (3) (364 SE2d 639) (1988).

(b) In requests to charge 7 and 9, appellant sought to have the trial court instruct the jury as to involuntary manslaughter in the commission of a lawful act in an unlawful manner. However, appellant’s defense was that he killed Reed in self-defense. “[A] defendant who seeks to justify homicide under the ‘self-defense’ statute, OCGA § 16-3-21 ... , is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, (OCGA § 16-5-3 (b) . . .) whatever the implement of death. For if he is justified in killing under OCGA § 16-3-21 ... , he is guilty of no crime at all. If he is not so justified, the homicide does not fall within the ‘lawful act’ predicate of OCGA § 16-5-3 (b) . . . , for the jury, in rejecting his claim of justification, has of necessity determined thereby that the act is not lawful.” (Emphasis in original.) Saylors v. State, 251 Ga. 735, 737 (3) (309 SE2d 796) (1983). The trial court did not err by refusing to give these charges.

5. Appellant also asserts the trial court erred by giving the State’s requested charges on mutual combat. We do not agree. There was evidence presented at trial that Reed was threatening appellant with a knife and that appellant had a gun. There was also some evidence that both appellant and Reed were angry and that threatening words were exchanged. “Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. [Cit.]” Johnson v. State, 185 Ga. App. 505, 506 (1) (364 SE2d 893) (1988). Hence, it was not error to give these charges.

6. Appellant finally contends thé trial court erred by recharging the jury on voluntary manslaughter by mutual combat and irresistible passion without also charging them on accident and misfortune and self-defense. The record reveals that the jury specifically asked what mutual combat and irresistible passion really meant. It is not error to limit a recharge to the question asked. Davis v. State, 184 Ga. App. 415, 416 (3) (361 SE2d 547) (1987). In fact, “[responding to a jury’s request to restate portions of the charge is generally required of the trial judge, [cit.], and it is within the court’s discretion to recharge only that which is specifically requested. [Cit.]” Appling v. State, 256 Ga. 36, 38 (2) (343 SE2d 684) (1986). The trial court did not abuse its discretion by limiting its recharge to the specific questions asked.

Decided February 20, 1989.

Crudup & Howell, John P. Howell, for appellant.

John M. Ott, District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and Deen, P. J., concur in Divisions 1, 2, 4, 5 and 6, and in the judgment.


text:
    77180.
    WEEKS v. THE STATE.
    (378 SE2d 895)
   Pope, Judge.

Defendant Willie Weeks was found guilty by a jury of one count of racketeering and five counts of commercial gambling. On appeal he argues that he was denied effective assistance of counsel because his retained counsel previously represented one of the State’s witnesses, and that his attorney’s duty of confidentiality to his former client prevented him from conducting a thorough and sifting cross-examination of the witness.

The record shows that defense counsel’s representation of the witness had ended in 1985, when the witness entered a plea of guilty to the charges against him. Defense counsel was made aware of the possibility that the witness might appear for the State prior to the time trial commenced in 1987. However, it appears that counsel did not make a formal motion to withdraw until after the State’s direct examination of the witness, at which time counsel indicated to the court that the witness had made statements to counsel during his prior representation of the witness which differed from the witness’ testimony at trial, but that his duty of confidentiality to his former client prevented him from inquiring into the discrepancy. Counsel did not indicate that the witness’ prior statement was more favorable to his client than that asserted at trial or that his previous attorney-client relationship with the witness provided him with exculpatory information which he was unable to use at trial.

The court denied the request to withdraw, reasoning that because the discrepancy was known only to present counsel another attorney would be in no better position to cross-examine the witness, and hence defense counsel’s representation of the defendant was as good as, if not better than, another attorney who lacked present counsel’s specific knowledge.

1. On appeal defendant argues that his counsel’s duty of confidentiality to his former client created an actual conflict of interest requiring an automatic reversal of his conviction. See United States v. Martinez, 630 F2d 361 (5th Cir. 1980), cert. denied, 450 U. S. 922 (101 SC 1373, 67 LE2d 351) (1981). However, in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) the United States Supreme Court rejected a per se rule of presumed prejudice for all cases involving conflicts of interest. “Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Id. at 692, citing Cuyler v. Sullivan, 446 U. S. 335, 348, 350 (100 SC 1708, 64 LE2d 333) (1980). “An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.” Westbrook v. Zant, 704 F2d 1487, 1499 (11th Cir. 1983) quoting Baty v. Balkcom, 661 F2d 391, 395 (5th Cir. 1981), cert. denied, 456 U. S. 1011 (102 SC 2307, 73 LE2d 1308) (1982). See also Kennedy v. State, 177 Ga. App. 543 (1) (340 SE2d 204) (1986).

Applying this standard to the case at bar, it is clear that counsel was not “actively representing conflicting interests.” As stated above, the attorney-client relationship between defense counsel and the witness ended in 1985 when the witness pled guilty to the charges against him. At the time defendant’s trial commenced several years later, the former attorney-client relationship had been entirely severed. “ ‘[A]ctive representation of conflicting interests’ connotes more than merely cross-examining a former client. . . .” United States v. Olivares, 786 F2d 659, 663 (5th Cir. 1986).

We likewise find no merit to defendant’s argument that counsel’s previous representation of the witness adversely affected counsel’s performance in that it prevented him from conducting a thorough and sifting cross-examination of the witness. The record shows that the attorney conducted a vigorous cross-examination, in which he attempted to show that the witness was a criminal, but that the defendant was not, and that the relationship between the defendant and the witness did not involve criminal activity. Furthermore, although counsel did owe his former client a continuing duty of confidentiality, the record does not suggest and defendant does not argue on appeal that the statement the witness had previously made to counsel was more favorable to the defendant than the testimony given at trial. Moreover, defense counsel did not seek the witness’ permission to inquire into the alleged confidential matter, although the State assured the witness prior to giving his testimony that any statements made by him at trial would not be used as the basis of further prosecution. “In light of the total absence of any indication of prejudice, defendant cannot rely on speculative harm caused by speculative confidential information to show that he was deprived of his constitutional rights at trial.” United States v. Donatelli, 484 F2d 505, 507 (1st Cir. 1973). See also United States v. Olivares, supra; Montgomery v. State, 156 Ga. App. 448, 453 (2) (275 SE2d 72) (1980); Dixon v. State, 144 Ga. App. 27 (1) (240 SE2d 302) (1977).

Decided February 10, 1989

Rehearing denied February 21, 1989

F. Jordan Dowdell, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

2. Inasmuch as defendant has presented no argument or citation of authority in support of his final enumeration, it is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Birdsong, Judge. Beasley, Judge,

text:
    77442.
    POWELL v. WATSON et al.
    (378 SE2d 867)
   Birdsong, Judge.

This is a case where the installer of insulation and drywall in a new house in 1985, sued the owners (Watsons) for their failure to pay him for his work. The case was tried and the jury returned a verdict of actual damages for the plaintiff, and attorney fees in the amount of $3,000. The damages verdict for plaintiff is not appealed from; the appellant’s only enumeration of error is that the trial court erred in entering a j.n.o.v. striking the attorney fees.

The plaintiff-appellant specifically pled and prayed for attorney fees for the defendants Watsons’ bad faith. During the course of the trial, the defendants Watsons moved for a directed verdict on the issue of attorney fees for bad faith, because “there was a genuine controversy [the absence of] which is the prerequisite or the sine qua non in order to substitute [attorney fees]—.” The trial judge denied defendants’ motion, saying it was a jury issue, “albeit somewhat vague,” upon which he could not encroach.

The defendants subsequently made a motion j.n.o.v. to strike the $3,000 attorney fee award, arguing again that the existence of a bona fide controversy in the case precluded an award of attorney fees for bad faith. The trial judge granted the motion j.n.o.v., holding: “The evidence adduced . . . shows that there was a bona fide dispute between the parties as to whether or not defendants were indebted to the plaintiff for the principal amount prayed for.” The court then found there was no evidence of bad faith on the part of the defendants in defending the claim, but given the misapprehension of law below that a bona fide dispute precludes a finding of bad faith, this holding that there was no evidence of bad faith cannot be taken literally. Held:

There was some evidence of bad faith on the part of defendants Watsons, as the trial court itself held in denying defendants’ motion for directed verdict and sending the issue to the jury. The'gist of the ruling below, in later striking the attorney fees by j.n.o.v., seems to be that if a bona fide controversy exists as to liability, and there has been no stubborn litigiousness by raising an invalid defense, there can be no “bad faith” authorizing attorney fees under OCGA § 13-6-11. In so concluding, the trial court relied heavily upon the statement in Ostrom v. Kapetanakos, 185 Ga. App. 728, 730 (365 SE2d 849), that: “[T]here existed a bona fide controversy as to appellee’s performance under the contract and as to the extent to which appellants were contractually liable. . . . Accordingly, appellants were not without a defense. . . . If a recovery of attorney’s fees was authorized in this case, attorney’s fees would be recoverable in any breach of contract action wherein the plaintiff prevailed notwithstanding the existence of an actual controversy and the defendant’s presentation of a viable but unsuccessful defense. Accordingly, ‘(u)nder the facts of this case, we conclude that it was error for the trial court to submit to the jury the issue of attorney[’s] fees in that there was no evidence to support such a verdict.’ Turner v. Wilmouth, 161 Ga. App. 2, 3 (2) (288 SE2d 839) (1982).” (Emphasis supplied.)

In Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 750-754 (266 SE2d 531), we raked thoroughly over the gross misconception that the existence of a bona fide dispute or controversy has an absolute logical connection to whether there has been bad faith in the defendant’s dealings with the plaintiff. Although there be clearly a bona fide controversy as to liability or amount of liability, not only may a party still be intransigently stubbornly litigious, causing a great deal of unnecessary trouble and expense, but the jury might well, and with perfect logic, find that despite some grounds for bona fide dispute as to liability, the defendant is not only liable, but that in addition he acted in the most atrocious bad faith in his dealing with the plaintiff. See id. pp. 753-754.

We said nothing to the contrary in Ostrom, supra. In that case, everything that was said at page 730 concerning the impropriety of a recovery of attorney fees where there is a bona fide controversy, referred in fact to the absence of stubborn litigiousness, which “ ‘refers to situations where a defendant forces suit where no “bona fide controversy” exists. [Cit.]”’ Id. p. 730.

In Ostrom, we did not say that where there is a genuine dispute there can be no “bad faith.” We merely found in that case that there was no evidence or element of bad faith in defendant’s mere refusal to pay. This is what distinguishes Ostrom from this case. The trial court here, in first denying defendants’ motion for directed verdict, conceded there was evidence of bad faith of defendants, “albeit somewhat vague,” and he gave the matter to the jury, which decided as fact that there was bad faith to support attorney fees in this case. That being their finding of fact upon the matters set before them, who are we to say the jury’s conscience on the issue of bad faith was wrong? In such cases, both the trial court and the appellate court are bound to construe the evidence in favor of the jury’s verdict. United Fed. S & L Assn. of Waycross v. Connell, 166 Ga. App. 329, 330-331 (304 SE2d 131).

In granting j.n.o.v. below, the trial court evidently concluded there could be, as a matter of law, no evidence of bad faith because there was a bona fide dispute as to liability. This was incorrect. Certainly there was some dispute made as to whether the plaintiff appellant performed the work properly and whether the defendants owed the money; but once the jury put an end to that dispute, why may it not then decide the defendants also acted in bad faith? The jury found this result logical and so do we. Nothing in Ostrom, supra, or in Georgia-Car. Brick Co., supra, or any of the casés cited therein, actually suggests a contrary analysis, and in Georgia-Car. Brick Co., we expressly rejected it.

The award of attorney fees should be reinstated.

Judgment non obstante veredicto reversed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in the conclusion but it should be made clear that the only ground relied upon by plaintiff, of the three provided in OCGA § 13-6-11, was bad faith. Apparently the trial court cross-matched it with the measurement for the stubborn litigiousness ground, which was not in issue, and this led to error.

Plaintiff’s complaint alleged solely the bad faith theory as a basis for claiming attorney fees, but he amended it to allege also stubborn litigiousness, the causing of undue expense in the prosecution and presentation of suit, and “recalcitrance.” However, by pretrial order the basis was again limited to bad faith.

The court gave the jury all the charges on the subject requested by both parties, including the whole statute and some principles related to the two grounds other than bad faith, but it clearly stated that the claim for attorney fees was based on a contention that defendants’ actions were in bad faith. Later, in instructing the jury on the verdict form, the court expressly instructed that an award of attorney fees would be proper only if the jury found “that the defendants have been guilty of bad faith in their dealings with the plaintiff . . . . "

There were no objections to any of the charges, the jury retired briefly, and a verdict in nearly the full amount of the principal sought, plus interest and attorney fees, was returned.

On appeal, plaintiff explains again that he sought attorney fees “for [defendants’] bad faith in their dealings with the [plaintiff].” The question is whether plaintiff’s evidence comes within the statute’s meaning of “bad faith,” as construed by the appellate courts.

Although when the new code was adopted in 1982 the bad faith ground in OCGA § 13-6-11 was facially limited to “bad faith in making the contract,” the four circumscribing words were eliminated by a comprehensive act in 1984, which corrected “typographical, stylistic, and other errors and omissions” in the Code and provided “for necessary or appropriate revisions and modernizations of matters contained” in it. Ga. L. 1984, pp. 22, 35. It does not appear in the reported cases that the limiting words were given much effect in the interim, see, e.g., City of Marietta v. Holland, 252 Ga. 299, 303 (3) (314 SE2d 97) (1984), so the pre-1984 cases dealing with the bad faith ground have not lost their efficacy. For a. case which points out the change, see Ostrom v. Kapetanakos, 185 Ga. App. 728, 729 (2) (365 SE2d 849) (1988).

Thus plaintiff is on solid ground when he asserts that he can recover attorney fees if he shows bad faith in the transaction with defendants, not exclusively bad faith on the part of defendants in making the contract. “ ‘The bad faith referred to has been consistently held by Georgia courts to refer to the conduct of the defendant in his dealings with the plaintiff out of which the suit arose, . . .’” Southern Bell Tel. v. C & S Realty Co., 141 Ga. App. 216, 222 (2) (233 SE2d 9) (1977) (overruled as to another point, Ga.-Car. Brick &c. Co., supra at 752).

Recovery of expenses of litigation on the bad faith ground are sustainable if there is evidence that “the contract was made in bad faith or that the [defendants] breached it as a result of some sinister motive.” California Fed. Savings &c. Assn. v. Hudson, 185 Ga. App. 384, 389 (7) (364 SE2d 582) (1987), quoting Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984). Accord Hightower v. Gen. Motors Corp., 175 Ga. App. 112 (2) (332 SE2d 336 (1985), aff’d 255 Ga. 349 (338 SE2d 426) (1986). “Bad faith authorizing an award of attorney fees in a contract action must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 113-114 (115 SE2d 852) (I960).” Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 484 (2) (361 SE2d 865) (1987). The jury may award attorney fees “if the defendant has acted in bad faith in the transaction out of which the cause of action arose.” Standard Oil Co. v. Mt. Bethel U. M. Church, 230 Ga. 341 (3) (196 SE2d 869) (1973); Bowman v. Poole, 212 Ga. 261 (3) (91 SE2d 770) (1956). In the contract case of Thibadeau Co. v. McMillan, 132 Ga. App. 842, 843 (1), (2) (209 SE2d 236) (1974), attorney fees for “bad faith” were authorized by evidence the builder knew that defective mortar was being used. Hayes Constr. Co., supra, on the other hand, is a contract case where bad faith was found in evidence of refusal to pay the retainage for contracted work.

Defendants were required to perform by paying, which they did not do. The jury was authorized to find that they manifested bad faith in refusing and failing to pay, under the “any evidence” rule, which applies Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676 (266 SE2d 796) (1980). (Although that appears to have been a stubborn litigiousness case, the rule is broadly stated.) This was more than “mere failure to pay a claim,” which would not be bad faith. Ostrom, supra at 730. Bad faith versus good faith is a question for the jury, to be determined “from consideration of facts and circumstances in the case.” Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).

The evidence showed that money for Powell’s work had been placed in escrow but the Watsons received it back rather than having any of it disbursed at closing. They did not pay the generally accepted 90 percent at completion with a retainage of 10 percent until all work was completed in a satisfactory manner. They did not pay the general contractor the full price to which he was entitled nor the paint contractor the amount of his contract, although one of the defendants testified that both had been paid in full. He had also told plaintiff that he would have to sue the paint contractor before he paid plaintiff any amount because the painter had not completed the job, but the painter was told that defendant refused to pay the painter any further sums until defendants sued plaintiff. Yet there was evidence that defendant was satisfied with the work of plaintiff. Many of defendants’ complaints were not related to plaintiff’s work or area of responsibility.

Other examples of the bad faith ground are found in Royal Crown Cos. v. McMahon, 183 Ga. App. 543, 546 (4) (359 SE2d 379) (1987) and Sanders v. Hughes, 183 Ga. App. 601, 602 (2) (359 SE2d 396) (1987). The distinction between the bad faith ground, which is asserted here, and the stubborn litigiousness ground, which requires the absence of a bona fide controversy, a genuine dispute, appears in the example of Nestle’ Co. v. J. H. Ewing & Sons, 153 Ga. App. 328, 332 (4) (265 SE2d 61) (1980). Some cases, however, do not make clear the distinction, and the principles related to one ground may be found, at least in wording, in considering another ground. See EBCO Gen. Agency v. Mitchell, 186 Ga. App. 874, 875 (2) (368 SE2d 782) (1988). It happened below, and thus I agree that the error must be corrected.

Decided January 24, 1989

Rehearing denied February 21, 1989

Clyde M. Urquhart, for appellant.

William E. Dismer, for appellees.

       The amount of the verdict in relation to the size of the demand is not conclusive evidence one way or the other, although it is relevant under the bad faith, as well as the stubborn litigiousness, theory. Ga.-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 750 (2B) (266 SE2d 531) (1980).


author: Banke, Presiding Judge.

text:
    77668.
    WHEELER COUNTY STATE BANK v. LEWIS.
    (378 SE2d 701)
   Banke, Presiding Judge.

Wheeler County State Bank filed this appeal from the denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, after obtaining a verdict in its favor in an action to recover the proceeds from the sale of a tobacco crop.

I. J. Culver, Jr., and Bobby Culver jointly executed a promissory note in favor of the bank in the principal amount of $98,419.85, secured by certain specified collateral which included a portion of their 1985 tobacco crop. The portion of their crop covered by the security agreement was described as follows in a financing statement filed to perfect that interest pursuant to the Uniform Commercial Code: “1985 Tobacco Crop Grown on Farm #90037, 18 acres, land of Colon Clark in Wheeler County. Grown on Farm #92061, 20 acres, land of I. J. Culver, Jr. and Bobby Culver in Wheeler County.”

The Culvers subsequently sold their entire 1985 tobacco crop for $41,479.61, through warehouse facilities belonging to the appellee, Lewis. The appellant bank had notified Lewis of the existence of its security interest, and Lewis had duly paid the bank the sum of $1,960.92 following the sale. The bank brought the present conversion action to recover certain additional sale proceeds from Lewis, plus interest and attorney fees.

Prior to trial, the court determined, in an order entered on cross-motions for summary judgment filed by the parties, that the Culvers had planted their 1985 tobacco crop on three separate tracts of land, that only the portion of the crop grown on two of those tracts (the Clark and Culver farms) was listed on the financing statement as collateral for the bank’s loan, and that, as a consequence, the portion of the crop grown on the third tract (the Baker farm) was not subject to the bank’s conversion claim. The trial court concluded that a jury “must determine the amount of tobacco grown by the Culvers during the year 1985; then it must determine the amount of tobacco grown by them on the Methel Baker land that year, and deduct that amount from the total of tobacco grown by the Culvers in 1985.” This ruling has not been challenged by either party. The case proceeded to trial, resulting in a verdict for the bank in the amount of $14,868.38. The bank appeals, contending that this award was inadequate as a matter of law. Held:

1. There was evidence that the most productive of the three farms in question had been the Baker farm, because it had suffered the least from drought conditions which existed in 1985. According to I. J. Culver, Jr., the actual amount of tobacco grown on the Baker farm in 1985 represented approximately 80 percent of the total crop grown on all three tracts. However, there was also evidence that, because the amount of tobacco actually grown on the Baker farm that year exceeded the government allotment for that property, the Culvers had incorrectly attributed a portion of their harvest from that property to the Culver and Clark farms, where the production quotas had not been exceeded. The appellant contends that this evidence demanded an award in its favor based not on the amount of tobacco actually grown on the Culver and Clark farms but on the amount attributed to those farms in the allotment reports.

“[A] motion for judgment notwithstanding the verdict is proper only where ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ [Cits.]” Hiers-Wright Assoc. v. Manufacturers Hanover &c. Corp., 182 Ga. App. 732 (356 SE2d 903) (1987). The trial court correctly instructed the jury that the bank’s collateral consisted of the tobacco grown on the Clark and Culver farms and that their function was to arrive at those figures and calculate an award accordingly. Contrary to the appellant’s assertions, the jury was not required to base its award on the allotment reports. Accordingly, the motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial was properly denied.

2. The appellant also challenges two evidentiary rulings made by the trial court. The first of these presents nothing for review on appeal, inasmuch as the trial court in fact sustained the appellant’s objection to the evidence in question. The second ruling concerns certain testimony offered by the appellee to the effect that the other collateral offered as security for the Culvers’ indebtedness had been liquidated and the proceeds applied against the debt. This evidence was relevant to establish the remaining balance of the loan that the bank was seeking to collect and could not, in any event, have been harmful to the appellant.

Decided February 6, 1989

Rehearing denied February 21, 1989

Newton, Smith, Durden, Kaufold & McIntyre, Wilson R. Smith, for appellant.

Malcolm F. Bryant, Jr., for appellee.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


text:
    77862.
    ROBERSON v. CENTRAL FIDELITY BANK.
    (378 SE2d 698)
   Beasley, Judge.

Defendant Roberson appeals the dismissal of her counterclaim following plaintiff Central Fidelity Bank’s voluntary dismissal without prejudice of its suit for the collection of a debt incurred by Bell, which had been brought to judgment in another state.

The bank sued Roberson on September 22, 1986 under the mistaken belief that she was the debtor Bell. On October 31, Roberson answered and counterclaimed for “malicious use and abuse of process.” Having ascertained that Roberson was not the debtor, the bank without leave of court voluntarily dismissed the suit without prejudice on February 17, 1988. On March 14, the bank moved to dismiss the counterclaim. The trial court dismissed the counterclaim after concluding that the tort of abusive litigation created by Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) to be successful required a favorable determination of the initial claim and that a voluntary dismissal of the main action was not a favorable determination for the defendant.

Appellant Roberson contends that the bank could not dismiss the main claim without leave of court because her pending counterclaim could not stand independently on its own; therefore, the main action was not properly dismissed and is still viable. She alternately maintains that inasmuch as her counterclaim prayed for reasonable attorney fees and costs it also constituted a claim under OCGA § 9-15-14 and as such could stand independently of the main claim.

Appellant’s counterclaim, filed approximately four months after Yost, clearly articulates a claim for abusive litigation and is thus controlled by the principles set forth in Moore v. Memorial Med. Center, 258 Ga. 696 (373 SE2d 204) (1988). A claim of abusive litigation must be pleaded as a compulsory counterclaim or compulsory additional claim pursuant to OCGA § 9-11-13 (a). Yost at 96 (14). It is to be decided in a bifurcated proceeding after the disposition of the underlying action. Id. at 96 (15); Moore, supra at 697. A “disposition” for the purposes of a Yost claim includes “a voluntary dismissal without prejudice by the plaintiff under OCGA § 9-11-41 (a). Under these circumstances it is not necessary that the underlying action be finally terminated in defendant’s favor. The abusive litigation counterclaim may proceed to adjudication on its merits based on all the relevant facts which have occurred to the point of dismissal including the dismissal itself.

Decided February 2, 1989

Rehearing denied February 21, 1989

John R. Calhoun, Penny J. Haas, for appellant.

Novy & Rumsey, Eugene Novy, R. Craig Henderson, for appellee.

“[T]he counterclaim may, at the election of defendant, remain pending without further prosecution until plaintiff refiles a complaint for the underlying action or the time elapses during which he may do so. The defendant may then elect to pursue the pending counterclaim or dismiss it and file another counterclaim in the newly filed lawsuit. If defendant elects to pursue the original counterclaim to judgment it will be res judicata only as to any Yost claim embracing facts which occurred up to and including plaintiff’s dismissal.” Moore at 697.

The trial court erred in dismissing appellant’s counterclaim on the basis that the voluntary dismissal without prejudice of the main action was not a “disposition” for the purposes of the Yost claim.

Inasmuch as we have determined that the counterclaim was improperly dismissed under the trial court’s consideration as a Yost claim, we need not consider whether it likewise should not have been dismissed under OCGA § 9-15-14.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.


text:
    77139.
    SOUTHWIRE COMPANY v. CRAPSE.
    (378 SE2d 742)
   Sognier, Judge.

The Superior Court of Carroll County affirmed the award of the State Board of Workers’ Compensation assessing attorney fees against Southwire Company on the basis that Southwire’s delay in commencing temporary total disability benefits to Howell David Crapse was unreasonable under OCGA § 34-9-108 (b) (2). We granted Southwire’s application for discretionary appeal and now affirm the superior court’s ruling.

The record reveals that Crapse injured his wrist on March 4, 1987 during his employment at Southwire. Crapse was examined by Dr. Jubal Watts who diagnosed the injury as carpal tunnel syndrome and released Crapse on March 10, 1987. Southwire discharged Crapse on March 13, 1987, but paid him no benefits until June 1987, nearly three months after Crapse had engaged an attorney to recover the benefits. Southwire thereupon acknowledged the validity of Crapse’s claim that he was entitled to receive benefits for temporary total disability due to restrictions on his ability to work caused by the wrist injury, and submitted payment of the benefits to Crapse along with the 15 percent late payment penalty pursuant to OCGA § 34-9-221 (e). However, Southwire contested Crapse’s claim for attorney fees under OCGA § 34-9-108 (b) (2), asserting that it had acted reasonably when it failed to pay the benefits because it was relying on documents from Dr. Watts, including a return to work form and the doctor’s appointment notes, in which the space set out for Crapse’s “physical restrictions” was left blank and which reflected that Crapse’s carpal tunnel syndrome required him to wear a splint only at night.

“The allowance of attorney’s fees under [OCGA § 34-9-108 (b)] must be predicated upon a determination that the noncompliance with [OCGA § 34-9-221] of the party against whom such fees are to be assessed was ‘without reasonable grounds.’ This presents an issue of fact for determination by the board. [Cits.]” Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 362 (280 SE2d 140) (1981). While Southwire has depicted accurately the language in the evidence on which it relies to support its assertion that it had reasonable grounds to deny payment of benefits to Crapse, the record also contains the evidence on which the administrative law judge, the Board, and the superior court relied in reaching a contrary decision. That evidence includes the same return to work form noted by Southwire in which, directly under the blank “physical restrictions” space, is the space captioned “remarks” where Dr. Watts notated that Crapse could work with a splint and that Crapse had carpal tunnel syndrome. The Southwire administrator responsible for all workers’ compensation testified that she saw and read these remarks on the form, but because the “physical restrictions” space was blank she did not consider the form to constitute documentation to justify the initiation of payment of benefits. It was not until the administrator sent Dr. Watts a form letter on June 3, 1987 that the questions concerning Crapse’s work restrictions were clarified.

The record thus establishes that “there is some evidence to support the board’s award of attorney fees . . . .” Henderson v. Mrs. Smith’s Frozen Foods, 182 Ga. App. 829, 830 (2) (b) (357 SE2d 271) (1987). Since this court and the superior court are bound to affirm the Board if there is any evidence to support the award, see N. G. Gilbert Corp. v. Cash, 181 Ga. App. 775, 777 (353 SE2d 840) (1987), we find no error in the superior court’s order affirming the award of attorney fees in favor of Crapse by the Board.

Decided February 21, 1989.

Kenneth A. Smith, for appellant.

Charles H. Lumpkin, Jr., for appellee.

Judgment affirmed.

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