text:
    A95A1566.
    HUDSON v. THE STATE.
    (462 SE2d 775)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with 15 counts of various acts of sexual misconduct constituting crimes directed against minor boys. The trial court directed verdicts of acquittal as to two counts. The jury acquitted defendant on ten counts but found him guilty of three counts of sodomy orally committed against two fourteen-year-old boys between March and May 1991. Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. Defendant first enumerates the denial of his motion for new trial on the special ground of ineffective assistance of counsel. The specifications of allegedly unprofessional omissions are the failure to object to alleged “similar transactions” testimony from five other vietims of defendant’s sexual misconduct; the failure to employ available expert witnesses to determine whether defendant’s accusers exhibited “symptoms of child sexual abuse accommodation syndrome”; the failure to object to certain testimony by an expert witness for the State; and, the failure to prepare character witnesses adequately.

“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense that was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74). “In the absence of testimony to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, 697 F2d 955 (11th Cir. 1983), cert. denied, 467 U. S. 1219 (1984).” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188). “The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with [the] client.” (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1), 79, supra.

(a) The evidence that defendant characterizes as impermissible “similar transactions” testimony was that of five witnesses who each testified that defendant attempted improper advances under the guise of filming a back massage for a class he was taking. Each time, defendant asked the boy to remove his trousers, so defendant could rub his legs and thighs. In one instance, defendant filmed a boy masturbating. This evidence originally had been excluded from the State’s case-in-chief. Thereafter, defendant took the stand and testified on direct examination that he is “not a homosexual [and . . . has] never been a homosexual.” He denied any sexual discussions or contact with any of his students. Over defendant’s objection, the trial court permitted the State to introduce the previously excluded evidence of defendant’s arguable sexual misconduct directed at other boys “as rebuttal testimony as it goes to the witnesses’ testimony, not as similar transactions. There’s a difference.” At defendant’s behest, the trial court agreed to “give the jury cautionary instructions for what purpose [this evidence] is being admitted.”

“Although ‘a witness may be impeached by disproving the facts testified to by him,’ OCGA § 24-9-82, a witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter. [Cit.]” Brown v. State, 260 Ga. 153, 156 (4) (391 SE2d 108). In the case sub judice, this evidence of defendant’s attempts to debauch other youths through the guise of a massage is not wholly irrelevant or immaterial to his “bent of mind and intent.” Rodgers v. State, 261 Ga. 33, 35 (3) (401 SE2d 735). Accord Roberson v. State, 214 Ga. App. 208, 209 (3) (447 SE2d 640). It follows that defense counsel’s unsuccessful attempt to exclude this relevant impeachment testimony “simply ‘is not any evidence that trial counsel’s conduct fell below that standard of reasonably effective assistance which members of the bar in good standing are presumed to render, as that right to effective assistance is protected by both the Georgia and (U. S. Constitutions. Hill v. Balkcom, 213 Ga. 58 (1) (96 SE2d 589) (1957).’ Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245). Consequently, the trial court did not err in denying defendant’s motion for new trial predicated upon this instance of allegedly ineffective assistance of counsel.” Johnson v. State, 214 Ga. App. 77 (1), 79, supra.

(b) With respect to defendant’s three remaining specifications, “ [i]t is not necessary to address specifically and individually each and every one of these . . . instances of challenged trial tactics. It is sufficient to note that ‘strategic choices (made) after thorough investigation . . . are virtually unchallengeable.’ Strickland[ v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674)]. [Cit.] The trial court [in the case sub judice] found, and the evidence supports the finding, that trial counsel thoroughly investigated the case and prepared for trial. [Defendant] has shown nothing that would demonstrate that his trial counsel failed to exercise reasonable professional judgment in [the] handling of [defendant’s] case. See Ferrell v. State, 261 Ga. 115 (3) (401 SE2d 741) (1991).” Stephens v. State, 265 Ga. 120, 121 (2), 122 (453 SE2d 443). The fact that defendant and his present counsel now claim they would have conducted the trial differently does not establish the ineffectiveness of trial counsel. Robinson v. State, 210 Ga. App. 278, 279 (3), 280 (435 SE2d 718). This enumeration is without merit.

2. In his second enumeration, defendant contends the trial court erred in failing to charge “defendant’s request to charge no. 10, and in failing to charge the principles set forth in O.C.G.A. § 24-4-6.”

Defendant’s written request to charge number 10 is for the “two theories” language, i.e., “ ‘that where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. However, this court has held that this statement . . . does not accurately state the principle addressed [at OCGA § 24-4-6] and should never be given. Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458).’ Matthews v. State, 214 Ga. App. 104, 105 (2) (446 SE2d 790).” Lawton v. State, 218 Ga. App. 309, 310 (2) (460 SE2d 878). Accord Williams v. State, 217 Ga. App. 636, 637 (2) (458 SE2d 671). Consequently, the trial court did not err in refusing to give this requested instruction. Furthermore, “[bjecause there was some direct evidence of [defendant’s] guilt and no [proper] request was made for a charge on circumstantial evidence, the trial court’s failure to give an instruction in the language of OCGA § 24-4-6 was not error. Barner v. State, 263 Ga. 365 (1) (434 SE2d 484) (1993).” Brooks v. State, 265 Ga. 548, 549 (2) (458 SE2d 349).

3. The refusal to give defendant’s fourteenth written request to charge is enumerated as error. This request contained the following language: “I charge you that it matters not how serious an offense is; if the party upon trial is not guilty, then it is your duty to acquit[, citing Butler v. State, 14 Ga. App. 446 (81 SE 370)]. I also charge you that a verdict is never demanded in a criminal case in favor of the State where the Defendant, in his testimony, denies his guilt[, citing Hooks v. State, 101 Ga. App. 351 (114 SE2d 48)].”

“ ‘The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is no longer a ground for new trial. [Cits.]’ Young v. State, 226 Ga. 553, 556 (5) (176 SE2d 52).” Brown v. State, 214 Ga. App. 733, 736 (4) (449 SE2d 136). In the case sub judice, we have examined the trial court’s instructions as a whole. The general instructions included the State’s unalterable burden to prove the defendant’s guilt beyond a reasonable doubt; that the credibility of any witness was solely for the jury to determine; and that the accused is not presumed to act with criminal intent. These general instructions were sufficient to address the legitimate substance of the requested instructions, such that the trial court’s refusal to give defendant’s written requests was not error. Brown v. State, 214 Ga. App. 733, 736 (4), supra.

4. The trial court correctly refused to allow two experts retained by the defense to testify that, in their professional opinions, defendant did not “fit the profile of a pedophile. This court has repeatedly held that such testimony is not admissible in Georgia. Lewis v. State, 212 Ga. App. 310, 311 (2) (441 SE2d 851) (1994); Smith v. State, 206 Ga. App. 557, 559 (2) (426 SE2d 23) (1992). ‘From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victims’ truthfulness and the [defendant’s] capability of performing the acts he was accused of. These determinations did not involve “unique and mysterious areas of human response” necessitating expert testimony.’ Jennette v. State, 197 Ga. App. 580, 582-583 (3) (398 SE2d 734) (1990).” Gilstrap v. State, 215 Ga. App. 180 (1) (450 SE2d 436).

Decided September 21, 1995

Reconsideration denied October 4, 1995

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

DuPont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A1661.
    JONES v. THE STATE.
    (462 SE2d 804)
   Birdsong, Presiding Judge.

Andrew William Jones appeals his convictions for driving under the influence of alcohol. He contends the trial court erred by admitting a hospital blood alcohol test result obtained in violation of the implied consent law, erred by admitting evidence of a purported similar transaction, erred by permitting a prosecution witness to be qualified as an expert witness to communicate hearsay evidence relating to the effects of blood alcohol percentages when such evidence was outside the expert’s area of expertise, and erred by allowing “hearsay evidence of the expected manifestations of blood alcohol percentage results on persons with particular blood alcohol test results.” Held:

1. Although Jones was also convicted of speeding in this trial, he has not enumerated any error concerning that conviction. Therefore, Jones’ conviction for speeding is affirmed.

2. Jones complains that the trial court erred by admitting in evidence the result of an additional blood alcohol test he requested even though the trial court earlier suppressed the results of the State’s test because Jones was not advised of his right to have an independent additional test. See State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639); State v. Peters, 211 Ga. App. 755, 756 (440 SE2d 515).

In granting Jones’ motion in limine excluding the results of the State’s test, the trial court stated: “Defendant was not advised of his right to an independent test or additional test of his own choosing. Such is required for the admissibility of the test results at trial. State v. Peters, [supra]. An additional test is not the same thing as an additional test of one’s own choosing (i.e., an independent test). The obvious legislative purpose of OCGA § 40-6-392 (a) (3) is to allow one to choose his or her own test after taking the one requested by the State. This procedure helps dissipate any feelings the DUI suspect may have of collusion, fraud, or inaccuracy in the State-administered testing. It also enables the suspect to obtain independent evidence to refute a possible erroneous State test result.

“Even though in this case defendant did request an additional test and received one, he might have requested an additional test at another medical facility if he had been properly informed that the additional test could be one of his own choosing or an independent test. As stated by the court in Nelson v. State, 135 Ga. App. 212 [(217 SE2d 450)], ‘It is also logical that the legislature intended that this right be made known to the defendant at the time of his arrest in order that he may, if he so chooses, challenge the accuracy of the chemical test administered by the State at the only time such a challenge would be meaningful.’ Nelson, Id., at 214.”

Nevertheless, upon the State’s subsequent motion, the trial court ruled that the results of Jones’ additional, but not independent, blood test were admissible under Jackson v. State, 196 Ga. App. 724 (397 SE2d 13) and Bynum v. Standard Oil Co., 157 Ga. App. 819, 820 (278 SE2d 669), because the additional test was taken at Jones’ request and not at the police officer’s request. The trial court’s reliance on these cases is misplaced. In both cases the tests at issue were administered for medical purposes and not in connection with establishing a violation of OCGA § 40-6-391. See Jackson v. State, supra at 726. Here, of course, the opposite is true.

The issue thus presented is whether the State may introduce evidence of the results of the additional, but not independent, blood alcohol test requested as a result of the deficient warning when the State’s blood test is invalid because Jones was not advised of his right to have an additional, independent blood test performed. We hold that the State cannot do so.

Under our law, the State may not prevent a defendant from exercising his right to an independent test, and if the State does so, the results of the State’s test must be excluded. See State v. Buffington, 189 Ga. App. 800 (377 SE2d 548). Also, if the State misadvises a defendant of his right to obtain an additional, independent test, the State is prevented from introducing evidence of a defendant’s refusal to submit to the State’s test. See State v. Hassett, 216 Ga. App. 114, 115 (453 SE2d 508).

In the same manner, we find that the failure to advise properly a defendant of his right to an independent, additional blood alcohol test prevents the State from introducing the results of the additional test. “[T]o utilize the results of a blood-alcohol test to establish criminal liability against a defendant, there must be compliance with OCGA § 40-6-392.” (Citation, punctuation, and emphasis omitted.) Munda v. State, 172 Ga. App. 857, 859 (324 SE2d 799). As the results of the additional test were the product of the inaccurate warning given by the officer, these results must be excluded from the State’s case-in-chief just as the results of the State’s test were excluded. Moreover, we can find neither substantial compliance with the statutory requirements because Jones actually received an additional test nor harmless error. To accept either proposition, “we must first find that the ‘of his own choosing’ language in OCGA § 40-6-392 (a) (3) is superfluous. This we refuse to do. We do not believe substantial compliance means it is permissible to ignore completely the ‘particulars’ of the laws of this state or that it is permissible to ignore statutory requirements as long as no harm is shown. The mandatory requirement is that when the State seeks to prove the violation by evidence of a chemical test, the State has the burden of demonstrating compliance with the statutory requirements.” (Citation and punctuation omitted.) State v. Hughes, 181 Ga. App. 464, 467 (352 SE2d 643). Moreover, the failure to give proper warnings invalidates the results of any test. Garrett v. Dept. of Public Safety, 237 Ga. 413, 415 (228 SE2d 812). This does not mean, however, that the State cannot use the results of an additional test in rebuttal when warranted by the defendant’s conduct. See Charlton v. State, 217 Ga. App. 842, 844 (459 SE2d 455).

Decided October 4, 1995.

Burkett, Schneider & Mumford, William Schneider, for appellant.

Cheryl F. Custer, District Attorney, S. Dabney Yarbrough, Michael M. Hawkins, Assistant District Attorneys, for appellee.

Therefore, as the trial court erred by admitting in evidence the result of this blood test, we must reverse Jones’ conviction for DUI.

3. Because we have reversed Jones’ conviction for DUI and the other errors enumerated do not concern his conviction for speeding, we need not consider his remaining enumerations of error.

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A95A2043.
    JACKSON v. THE STATE.
    (462 SE2d 802)
   Blackburn, Judge.

The appellant, Edward Howard Jackson, was arrested for driving under the influence and reckless driving. After his arrest, Jackson was notified by the Georgia Department of Public Safety that his driver’s license was to be suspended under OCGA § 40-5-67.1 (b) (2) because his blood alcohol concentration exceeded .10 grams at the time of his arrest. Jackson attempted to contest the proposed action; however, his request for a hearing was deemed untimely, and his driver’s license was thereafter suspended. He was subsequently charged by accusation with two counts of driving under the influence of alcohol. The trial court denied Jackson’s plea in bar, and Jackson now appeals.

Citing United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989) and Austin v. United States, 509 U. S. _ (113 SC 2801, 125 LE2d 488) (1993), Jackson contends that the trial court’s denial of his plea in bar was error because the suspension of his operator’s permit constituted former punishment foreclosing further punishment arising out of a prosecution for driving under the influence under the double jeopardy clauses of the state and federal constitutions. We disagree.

In Halper and in Austin, the United States Supreme Court held that “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. [Cit.]” Halper, supra at 448; Austin, supra, 125 LE2d at 505. “To determine whether a civil sanction is punishment, a court must assess the penalty imposed and the purposes that it serves. Among the factors to consider are whether the sanction involves an affirmative disability or restraint, has been regarded historically as punishment, requires a finding of scienter, promotes retribution and deterrence as the goals of punishment, is rationally connected to an alternative purpose, and appears excessive when compared to the alternative purpose.” (Citations omitted.) Moser v. Richmond County Bd. of Commrs., 263 Ga. 63, 64 (428 SE2d 71) (1993) (regarding revocation of a business license).

The suspension of an operator’s license for driving under the influence under OCGA § 40-5-67.1 (b) (2), as here, is reasonably related and not disproportional to the State’s longstanding remedial purpose in removing dangerous and habitually negligent drivers from its roadways. OCGA § 40-5-57 (a) pertinently provides that “[t]he State of Georgia considers dangerous and negligent drivers to be a direct and immediate threat to the welfare and safety of the general public, and it is in the best interests of the citizens of Georgia immediately to remove such drivers from the highways of this state.” Driver’s licenses are suspended by a designated public officer in an administrative setting, rather than as punishment in consequence of a criminal prosecution. See OCGA § 40-5-67.1 (c); Keenan v. Hardison, 245 Ga. 599, 601 (266 SE2d 205) (1980) (regarding suspension of operator’s license for failure to satisfy civil judgment); Williams v. State, 138 Ga. App. 662, 663 (226 SE2d 816) (1976) (regarding automatic suspension of operator’s license as to habitual drunk driver). “ ‘In short, there is a complete absence of any judicial action and no attribute of a criminal case.’ ” Keenan, supra.

Decided October 4, 1995

Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Elizabeth A. Baker-Cofer, Assistant Solicitor, for appellee.

License suspension does not involve an affirmative restraint as “ ‘it is actually the “revocation of a privilege voluntarily granted,” a traditional attribute of a remedial action.’ ” Moser, supra at 64. The civil sanction of revocation of a business license is not inconsistent with the suspension of an operator’s license. Id. at 65; see also State v. Strong, 605 A2d 510, 514 (Vt. 1992) (citing post-Halper cases holding that suspension of driver’s license in civil context is not criminal punishment violative of double jeopardy prohibitions). Neither the civil sanction of suspension nor the criminal conviction for driving under the influence requires proof of scienter, and “[d] espite carrying the ‘sting of punishment,’ the primary purpose of the sanction is not to deter the operator or seek retribution. See Halper, 490 U. S. 447, n. 7.” Moser, supra at 64. Accordingly, the trial court correctly denied Jackson’s plea in bar.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Beasley, Chief Judge.

text:
    A95A2210.
    JORDAN v. THE STATE.
    (462 SE2d 801)
   Beasley, Chief Judge.

Jordan and Tuff were jointly indicted and tried for armed robbery (OCGA § 16-8-41) and aggravated assault (OCGA § 16-5-21). Jordan appeals his convictions.

Evidence was presented showing the following. A pizza delivery man was attacked with an aluminum baseball bat, robbed, and almost killed. The blows were to his head. The person to whose house the pizza was delivered testified that, on the night of the robbery, Jordan and two other men (Richardson and Tuff) came to his house. They had a baseball bat and said that they were going to rob the pizza man. Richardson testified that the robbery was committed by Jordan and Tuff. According to Tuff, Jordan made the phone call to the delivery man and hit him with the bat. Jordan made a statement to the police admitting his involvement in the robbery.

1. Jordan first complains of the trial court’s denial of his chailenge to the jury poll because of derogatory comments made by a prospective juror on voir dire.

In response to questioning by Tuff’s attorney, the prospective juror indicated that she had already formed an opinion as to the guilt or innocence of the defendants. In response to questioning by the court, the prospective juror stated that although she had not known defendants previously, she had formed the opinion that they were guilty while sitting in court. The court excused this juror, gave cautionary instructions to the remaining members of the panel, and determined that none of them had been influenced by the excused juror’s comment.

The juror’s statement provides no ground for disqualifying the whole panel, because it was personal and was not “inherently prejudicial.” Frady v. State, 203 Ga. App. 833, 834 (418 SE2d 114) (1992). The juror related no harmful information, as the basis for her opinion, which would infect the other jurors.

Moreover, the court’s instructions removed any possible residual effect, as confirmed by the remaining prospective jurors themselves. This was precisely the situation in Frady and leads to the same conclusion: “ ‘(s)ince there was no showing that the (statement) influenced the minds of (any member of) the jury prejudicially to appellant, the denial of appellant’s (challenge to the poll) was not error. (Cits.)’ [Cits.]” Id.

2. Jordan next contends that the trial court erred in not merging his aggravated assault conviction into his armed robbery conviction.

As acknowledged by the State, under Georgia law, the aggravated assault conviction merged as a matter of fact into the armed robbery conviction. OCGA §§ 16-1-6 (1); 16-1-7 (a). Smith v. State, 193 Ga. App. 208 (1) (387 SE2d 419) (1989); Kelly v. State, 188 Ga. App. 362, 363 (3) (373 SE2d 63) (1988). In the circumstances of this case, the bat was not used as a weapon to first accomplish the robbery and then to assault the victim. Although one participant said there were two blows, both preceded the taking and the bat was used directly only to effect the robbery; the victim was knocked unconscious and then deprived of money and the box containing food. The use of the weapon was used to, and did, facilitate the taking.

3. Finally, Jordan challenges the sufficiency of the evidence to support the verdict of armed robbery, but it meets the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed as to armed robbery. Judgment vacated as to aggravated assault.

Pope, P. J., and Ruffin, J., concur.

Decided October 4, 1995.

T. Mark Thedieck, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, A. Scott Gunn, Assistant District Attorneys, for appellee.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A1047.
    CLINICAL ARTS HOME CARE SERVICES et al. v. SMITH et al.
    (462 SE2d 757)
   Andrews, Judge.

Smith, who worked as a home health care aid for Clinical Arts Home Care Services (Clinical Arts) received workers’ compensation benefits for a work-related injury she suffered in March 1993. She returned to work in May 1993 and suffered another work-related injury. When the original March 1993 injury occurred, Clinical Arts was insured by Aetna Casualty & Surety Company (Aetna Casualty), but when Smith was injured in May 1993, Clinical Arts was insured by Guarantee Mutual Life Insurance Company (Guarantee Mutual). Smith was paid benefits for the May 1993 injury, and a hearing was subsequently held before an administrative law judge (ALJ) to determine whether the May 1993 injury was a change in condition for the worse from the March 1993 injury, for which Aetna Casualty was responsible, or a new injury, for which the new insurer, Guarantee Mutual, was responsible.

The ALJ found that, when Smith returned to work in May 1993, she sustained the second accidental injury as a result of a specific job-related incident which aggravated the pre-existing back and shoulder condition resulting from the March accidental injury. Finding that the second incident at least partially precipitated Smith’s present disability, the ALJ concluded that there was a new injury under the holding of Central State Hosp. v. James, 147 Ga. App. 308, 309 (248 SE2d 678) (1978). There was testimony from Smith that she suffered the second injury when she leaned over to pick up a pan of water, and that this injury caused additional neck and arm pain not associated with the first injury. Smith’s doctor testified that, as a result of the second incident, there was an aggravation of the pre-existing condition and also possible additional soft tissue damage.

The case was appealed to the appellate division of the State Board of Workers’ Compensation, which heard the case on the parties’ oral arguments and briefs and the evidence admitted in the trial division of the Board before the ALJ. After the hearing, the appellate division rendered a decision on August 30, 1994, reversing the decision of the ALJ and concluding that the evidence showed that there was a change in condition rather than a new injury. Contrary to the findings of the ALJ, the appellate division concluded that since “Smith suffered no specific incident during her return to work,” there was a change in condition as a result of ordinary wear and tear rather than a new accident. See Central State Hosp., supra at 309-310.

On appeal to the superior court, a timely order was not entered pursuant to OCGA § 34-9-105 (b), and the decision of the appellate division was affirmed by operation of law. We granted this discretionary appeal to Clinical Arts and its insurer, Aetna Casualty, which claim that the appellate division erred as a matter of law in reversing the decision of the ALJ.

The appellate division’s August 30,1994 decision was prefaced by the statement that “[u]pon de novo consideration of all evidence, the Appellate Division substitutes its findings of fact and conclusions of law for the administrative law judge’s findings of fact and conclusions of law.” Effective July 1, 1994, an amended version of OCGA § 34-9-103 (a) (Ga. L. 1994, p. 887, § 8) provided that, when the decision of an ALJ in the trial division is appealed to the appellate division, “[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.”

We conclude that the appellate division’s “de novo consideration of all evidence” in this case applied an incorrect standard of review to the evidence admitted in the trial division before the ALJ. Although in reviewing the ALJ’s decision the appellate division must make its own findings of fact and conclusions of law, under the amended version of OCGA § 34-9-103 (a), it no longer conducts a de novo review of the evidence upon which the ALJ’s findings of fact are based. Under the old version of OCGA § 34-9-103 (a), a review of the evidence admitted before the ALJ was de novo in the sense that the Board (now designated the appellate division) could disregard any findings of fact made by the ALJ, regardless of evidentiary support, and substitute its own findings of fact, as long as there was any evidence to support its substituted findings. Saunders v. Bailey, 205 Ga. App. 808, 810 (423 SE2d 688) (1992); Automatic Sprinkler Corp. &c. v. Rucker, 87 Ga. App. 375, 384-385 (73 SE2d 609) (1952). Under the amended version of OCGA § 34-9-103 (a), however, the appellate division is required to accept findings of fact made by the ALJ “where such findings are supported by a preponderance of competent and credible evidence contained within the records.” This new standard of review is inconsistent with the “de novo consideration of all evidence” applied by the appellate division in this case.

Moreover, we find that, even though the amended version of OCGA § 34-9-103 (a) became effective on July 1, 1994, after the ALJ heard the case and rendered his decision on February 22, 1994, the appellate division erred by failing to apply the amended version of the statute when it rendered its decision on August 30, 1994. The statute is procedural, there is no vested right in preserving appellate review of the ALJ’s decision under the version of OCGA § 34-9-103 (a) which existed at the time the ALJ decided the case, and the Legislature did not express an intent that the amendment not be applied retroactively. Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988). Therefore, when the appellate division rendered its decision on August 30, 1994, it should have applied the amended version of OCGA § 34-9-103 (a) as the standard of review, rather than the de novo review applicable under the former version of the statute. Drake v. La-Rue Constr. Co., 215 Ga. App. 453, 455-456 (451 SE2d 792) (1994); Thompson v. Wilbert Vault Co., 178 Ga. App. 489 (343 SE2d 515) (1986).

Since the appellate division failed to review the evidence under the proper standard, and its decision reversing the ALJ was subsequently affirmed by operation of law pursuant to OCGA § 34-9-105 (b) , we reverse the decision of the appellate division, and remand the case to the superior court with directions that the case be recommitted to the appellate division of the Board for review under the proper standard as set forth in this opinion.*

Judgment reversed and case remanded with directions.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent for two separate reasons. First, I fail to find in the record where the issue addressed in the majority opinion is the subject of the sole enumeration of error submitted in this case. Moreover, the issue addressed by the majority has not been raised, argued, discussed, or even mentioned in the brief of either party. Nor is a resolution of the issue addressed in the majority opinion necessary to reach the issues actually raised in this appeal. Under these circumstances a question of law is not ripe for appellate decision and should not be addressed by this Court.

Additionally, in my view, the majority opinion’s analysis of the issue addressed is incorrect. While the majority opinion concludes that a statutory amendment has provided a new standard of review to be applied by the appellate division of the State Board of Workers’ Compensation when reviewing the evidence admitted before an ALJ, I see no change of substance resulting from the new statutory language.

The new statutory language requires the appellate division to accept the findings of fact of the ALJ “where such findings are supported by a preponderance of competent and credible evidence contained within the records.” See OCGA § 34-9-103 (a) as amended by Ga. L. 1994, p. 887, § 8, effective July 1, 1994. This is not an “any evidence” standard, but requires the appellate division to make a determination not only of the sufficiency of the evidence but also of the weight of the evidence. The burden is the same as that placed on the Board under the old statute. See Saunders v. Bailey, 205 Ga. App. 808, 810 (423 SE2d 688) and Automatic Sprinkler Corp. &c v. Rucker, 87 Ga. App. 375, 384-385 (73 SE2d 609). The provision for acceptance of the findings of fact entered by the ALJ and supported by a preponderance of evidence does nothing more than formalize the Board’s longstanding practice of adopting the findings and conclusions of the ALJ except insofar as they conflict with the determinations of the Board. The appellate division, like the full Board under the old statute, is the final arbiter of the weight of the evidence, thus the ultimate factual findings reached upon review of the award of an ALJ is not altered by the statutory change. I fail to see any error, or harm, in the appellate division’s use of de novo consideration.

The sole enumeration of error submitted in the case sub judice raises a question of whether the claimant, who became disabled on two occasions, sustained a new accident or a change of condition upon the occurrence of the second incident. The employer maintains that the appellate division’s finding that the claimant sustained a change of condition rather than a new accident is erroneous as a matter of law. But this contention overlooks competent and credible evidence authorizing the finding of the appellate division. I would affirm the judgment below.

Decided September 8, 1995

Reconsideration denied October 5, 1995.

Shivers, Johnson & Wilson, Benjamin J. Johnson, Edwin G. Russell, Jr., for appellants.

Burdine & Brown, Thomas F. Brown II, Mallard & Wilson, Emmett E. Mallard, Jr., for appellees.

The cases cited in the second footnote of the majority opinion to refute this dissent are easily distinguished. Both of those cases as well as any references to awards based on erroneous legal theories relate to substantive issues of law. But the supposed error of law which the majority would correct is not substantive but procedural, thus more amenable to waiver as by appellant’s failure to raise such an issue in the case sub judice.

       Although the issue in this case is the modified scope of appellate division review of evidence already admitted before the ALJ, we note that the amended version of OCGA § 34-9-103 (a) also deleted language contained in the former version of the statute and all of its predecessor versions (see Ga. L. 1920, p. 167, § 58) giving the Board discretion to hear additional testimony while the decision of the ALJ was before the Board for review. Thus, it appears the Legislature intended to alter the nature of appellate review by the Board from that of a strictly de novo proceeding conducted by a Board capable of finding facts by hearing additional testimony, to an appeal to the appellate division, under the new modified scope of review, based on a record established in the trial division. See State Board of Workers’ Compensation Rule 103 (b), (c); compare Pacific Employers Ins. Co. v. West, 213 Ga. 296, 297-298 (99 SE2d 89) (1957) (construing a former version of the statute as creating an appeal which authorized the taking of additional evidence before the board and “opened the entire case for a de novo hearing before the board as a fact-finding body”).

       Although as pointed out by the dissent the appellants did not directly address the erroneous standard of review employed by the appellate division, the issue is necessarily presented by our review of whether the appellate division properly considered the evidence in concluding, contrary to the ALJ, that there was a change in condition rather than a new injury. Since the appellate division applied an erroneous de novo standard of review, it failed to properly consider the evidence. “Where it affirmatively appears that the award is based upon an erroneous legal theory, and that for this reason the board has not considered all of the evidence in the light of correct and applicable legal principles, the case should be remanded to the board for further findings.” (Citations and punctuation omitted.) Williams v. Crompton Highland. Mills, 190 Ga. App. 621, 624-625 (379 SE2d 622) (1989); Clark v. Fire

        man’s Fund Ins. Co., 131 Ga. App. 809, 810-811 (207 SE2d 222) (1974).


text:
    A95A1085.
    GRANGE MUTUAL CASUALTY COMPANY v. RIVERDALE APARTMENTS, LIMITED PARTNERSHIP.
    (463 SE2d 46)
   Beasley, Chief Judge.

Grange Mutual Casualty Company directly appeals from the superior court’s denial of its motion, filed in a declaratory judgment action, for a temporary restraining order, interlocutory injunction, and stay of proceedings in another case in another court. In the motion, Grange requested the superior court to enjoin all the parties from prosecuting the other case, a state court action, and to stay those proceedings until the declaratory judgment action declaring Grange’s rights and liabilities under certain insurance policies could be concluded. Coverage had been claimed by defendants under Grange insurance policies in the state court action, in which former tenants of an apartment complex sued various parties who had been involved in its construction and management. Although Grange provided those defendants with a defense, it also notified them of its position that there was no coverage pursuant to the terms of the policy.

The superior court held that it had no jurisdiction to stay the proceedings in the underlying action and denied Grange’s motion.

Originally this appeal was directed to the Supreme Court, but it was transferred to this Court on the strength of Milwaukee Mechanics Ins. Co. v. Davis, 204 Ga. 67 (48 SE2d 876) (1948). That case held that the statutory provision for incidental and ancillary relief to maintain the status quo until the determination of rights and liabilities is made in an existing controversy, as authorized by what is now OCGA § 9-4-3 (b), is not a provision for equitable relief over which the Supreme Court has jurisdiction under the constitution. See the current version in Ga. Const., Art. VI, Sec. VI, Par. Ill (2) (“Unless otherwise provided by law . . . All equity cases”). The nature of this appeal is the same as in Milwaukee Mechanics Ins. Co.

The first consideration is whether we otherwise have jurisdiction of this appeal, a point illustrated in Atlantic-Canadian Corp. v. Hammer, Siler, George Assoc., 167 Ga. App. 257, 258 (1) (306 SE2d 22) (1983). This direct appeal concerns an interlocutory matter because the declaratory judgment action remains pending in the trial court. In fact, the very reason for seeking interim relief is because the plaintiff/ appellant fears injury before this suit can be completed. Thus the question is whether the appeal falls within the category listed in OCGA § 5-6-34 (a) (4) or OCGA § 5-6-34 (b). Is the order below one which refuses an interlocutory injunction? If so, a direct appeal lies; if not, an application is necessary.

First, we note that the court did not rule on the request for restraining order or injunction against the parties; it only refused to stay the proceedings in the other case, concluding that it had no jurisdiction to do so. It cited Nat. Enterprises v. Davis, 145 Ga. App. 198 (243 SE2d 563) (1978), as authority. It is true that, as quoted in that case, the superior court could not stay the state court action. One court cannot stay proceedings in another court. The reason is that the power to stay “is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 485 (198 SE2d 144) (1973). The course of action for insurers in appellant’s predicament to take, as set out in Richmond v. Ga. Farm Bureau &c. Co., 140 Ga. App. 215, 219 (231 SE2d 245) (1976), does not authorize a stay of the main case to be imposed by a court other than the one in which it is pending. Although Nat. Enterprises also states that relief, if obtainable, is by injunction, there is no ruling on that part of Grange’s request for us to review.

The denial of a stay, by its very nature, does not come within the category of cases described in OCGA § 5-6-34 (a) (4). Even where the Declaratory Judgment Act’s provision for incidental and ancillary relief of injunction is sought and ruled on by the trial court, it probably would not come within the direct appeal category. In Whitehead v. Henson, 222 Ga. 429, 430 (150 SE2d 628) (1966), the court held that when plaintiffs in a declaratory judgment action pray that defendants be temporarily restrained from proceeding until the declaratory judgment is given, “such a prayer is not one for either equitable or extraordinary relief.” We do not rule on this issue, however, because it is not before us. Dietz v. Becker, 209 Ga. App. 678, 679-680 (3) (434 SE2d 103) (1993). We simply point it out as a natural corollary to the position taken by the Supreme Court in Milwaukee Mechanics Ins. Co., supra, that this was not “equitable relief as contemplated by the Constitution in defining the jurisdiction of [that] court.” It would be somewhat anomalous to say the intention is otherwise with respect to the procfedural statute. The very limited injunctive power authorized by OCGA § 9-4-3 (b) for the sole purpose of temporarily maintaining status quo is not the writ of injunction which equity allows under OCGA § 9-5-1; it is the latter for which direct appeal is afforded in OCGA § 5-6-34 (a) (4).

Decided October 5, 1995.

Mozley, Finlayson & Loggins, William D. Harrison, Lawrence B. Domenico, for appellant.

Hendrick, Phillips, Schemm & Salzman, David R. Hendrick, Victoria S. Tobin, Bisbee, Rickertsen & Herzog, William A. DuPre IV, Valente & Strauss, John G. Valente, Carter & Ansley, Elizabeth J. Bondurant, for appellees.

Be that as it may, the order being appealed simply denied a stay, and thus the interlocutory appeal procedure of OCGA § 5-6-34 (b) applies. The appeal must be dismissed for lack of jurisdiction. Guy v. Roberson, 214 Ga. App. 391, 392 (1) (448 SE2d 60) (1994).

Appeal dismissed.

Pope, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1703.
    BAYNES v. THE STATE.
    (463 SE2d 144)
   McMurray, Presiding Judge.

Defendant Baynes appeals his conviction of aggravated assault. Held:

1. Defendant’s first enumeration of error complains of the denial of his motion to dismiss the indictment due to impermissibly suggestive pretrial identification methods. While the State correctly maintains that defendant did not seek the proper remedy in his motion, we note that the trial court conducted a hearing at which evidence was presented as to the factual circumstances related to the pretrial identification, and thus, we infer that the trial court has viewed defendant’s motion to be, in substance, a motion to suppress evidence arising from the pretrial identification. Therefore, we are not prepared to reject this enumeration on a technical basis as advocated by the State. But we do approve of the trial court’s denial of defendant’s motion since the totality of the evidence authorizes a conclusion that the pretrial identification was reliable.

The victim was talking on a pay telephone when he was struck, spun around, and hit again. The attacker demanded the victim’s money as the two stood only a foot apart. Although it was nighttime, the site was well lighted.

The victim flagged down a police officer shortly afterwards and reported the attack. The victim described his attacker as a male, about five feet and eight or nine inches tall, with thin, short hair. The victim stated the attacker was wearing a blue shirt and that he could not tell what the writing was on the front of the shirt. The victim described the car in which his attacker had left the scene as a white Mustang 5.0 with blue stripes and tinted windows occupied by two to four males. The police officer broadcast a lookout for this vehicle.

Approximately 20 minutes later, a patrolling officer discovered defendant’s car. There were four males in the car. When discovered, defendant and his companions were four or five miles and approximately seven to ten minutes driving time from the location of the attack. The victim was driven to the location where defendant and his companions were found and immediately identified defendant as his attacker. At trial, the victim repeated his identification of defendant as his attacker.

“This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purpose of pre-trial identification, in particular, the danger of the ‘ “substantial likelihood of irreparable misidentification.” (Cit.)’ (Daniel v. State, 150 Ga. App. 798, 799 (1) (258 SE2d 604) (1979)). To evaluate that likelihood, we apply the test enunciated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) which requires that we consider the witnesses’ opportunity to view the suspect at the time of the offense, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description and their level of certainty. However, both state and federal courts have also recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible if not desirable. These include the necessity of a speedy police investigation and the necessity to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects. Bennefield v. Brown, 228 Ga. 705 (187 SE2d 865) (1972); Arnold v. State, 155 Ga. App. 782 (272 SE2d 751) (1980); see Bates v. United States, 405 F2d 1104 (D.C. Cir. 1968).” Weathers v. State, 202 Ga. App. 849, 851 (2) (415 SE2d 690).

In the case sub judice, the victim had only a brief interval to observe his attacker. The victim testified that after he was struck the first time and spun around, he was able to observe his attacker for five or six seconds before he was hit again and that the second blow affected his vision. Having just been struck and spun around without warning, it would seem reasonable to infer that the victim’s attention was riveted on his attacker for this brief time. The description of the attacker given to police was not detailed and consisted of the attacker’s race, height, hair length, and color of shirt. In the context of the circumstances in the case sub judice, it is significant that the victim regained his vision in time to acquire a detailed and accurate description of the car in which the attacker left the scene of the crime. And the victim’s identification of defendant at the showup was immediate and certain.

We reject defendant’s contention that the victim’s description was inaccurate and insufficiently detailed. If defendant’s shirt was aquamarine rather than blue and displayed an athletic team logo not mentioned by the victim, this distinction presented a factual issue but does not require suppression of the pretrial identification. The reliability of the victim’s perceptions was also questioned because he had been drinking, but this concern was rebutted by the testimony of both the victim and the police officer whom he flagged down shortly after the crime.

Under the totality of the circumstances presented in the case sub judice, we find no error in the denial of defendant’s motion predicated on the pretrial identification procedure. It appears that the showup was reasonably and fairly conducted soon after commission of the crime. Rogers v. State, 205 Ga. App. 739, 740 (1), 741 (423 SE2d 435).

2. Defendant contends that the trial court erred in denying a motion in limine to exclude the testimony of T. H., a juvenile. This witness testified that he was in defendant’s car on the night in question and observed defendant striking the victim. Defendant maintains that the testimony of this witness should have been excluded because his name was not on the original witness list, the witness was not newly discovered, and the new witness’s name was provided to defendant via an amended witness list five days prior to trial (and two days prior to jury selection). The critical distinction is whether defendant has been allowed an opportunity to interview the witness. Here there was ample time to do this. Thrasher v. State, 265 Ga. 401, 402 (3) (456 SE2d 578).

3. Defendant also questions the sufficiency of the evidence to authorize his conviction. But after reviewing the evidence presented at trial, we conclude that it was sufficient to authorize the jury to find defendant guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Pruitt v. State, 217 Ga. App. 681 (1), 682 (458 SE2d 696).

4. Finally, defendant maintains that the trial court erred in quashing his subpoena of T. H.’s juvenile court record. The trial court apparently embraced the position argued by the State that defendant’s only purpose in seeking to obtain the juvenile record was to use the adjudication in that file for purposes of impeachment. A juvenile court adjudication of delinquency is not a conviction of a crime. Smith v. State, 154 Ga. App. 190, 192 (3) (267 SE2d 826). Consequently, such an adjudication may not be used to impeach a witness. McBee v. State, 210 Ga. App. 182 (1) (435 SE2d 469). In the colloquy before the trial court, defense counsel conceded this point and abandoned any reliance upon impeachment as a basis for obtaining the juvenile court record.

But defense counsel continued to maintain that the subpoena should not be quashed since the juvenile record could be properly subpoenaed to be used for purposes determined to be appropriate in Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347). In Davis, “the Supreme Court held that a pending delinquency adjudication for burglary was admissible as a particular attack on a witness’ credibility, i.e., ‘directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.’ Hines v. State, 249 Ga. 257, 259 (2), 260 (290 SE2d 911). However, as noted by Justice Stewart in a concurring opinion, ‘the (United States Supreme) Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.’ Davis, supra at 321.” McBee v. State, 210 Ga. App. 182,183, fn. 1, supra.

There is no conflict between McBee and Davis because the juvenile records at issue in McBee relate only to past delinquency adjudications and do not include any pending delinquency adjudication. If there were a pending juvenile adjudication with regard to T. H., then Davis was applicable and both of the State’s arguments in support of quashing the subpoena, lack of relevance based on McBee and confidentiality based on OCGA § 15-11-59, lacked merit. In this connection, we note that in Davis, the confrontation clause rights asserted therein are held to be paramount to the interest underlying confidentiality statutes such as OCGA § 15-11-59.

During the colloquy concerning the motion to quash, defense counsel stated his understanding, apparently arising from a pre-trial conversation with T. H., that this youth had been adjudicated delinquent and was “still on some type of probation or something.” If, in fact, T. H. was on probation arising from an adjudication of delinquency, this was a pending delinquency adjudication which would render McBee inapposite and distinguishable on the facts, as well as place the case sub judice subject to the rule stated in Davis. Since the juvenile in Davis was on probation, it is apparent that the references in that case to pending delinquency adjudication encompassed probation.

Decided October 5, 1995.

Terry N. Massey, for appellant.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

While defense counsel’s statement was not controverted, we decline to reverse defendant’s conviction solely on the basis of this apparent hearsay statement. A question remains as to the actual status of any juvenile court proceeding involving T. H.

We also decline to find any waiver by defendant in connection with this issue. A definitive answer to whether defendant should have access to the juvenile record is contained therein. Defense counsel has attempted to gain access to that record and stated for the record his reason for believing that a proper basis exists for access to that record. He could have done no more.

Therefore, in order to resolve these remaining issues, the case sub judice is remanded to the trial court in order that a hearing be conducted to determine whether, at the time of trial, T. H. was on probation or otherwise subject to a pending delinquency adjudication. If a positive answer results, the trial court shall order a new trial and provide for defendant’s access to T. H.’s juvenile file to the extent necessary to provide defendant an opportunity to conduct an effective cross-examination of T. H. concerning the issue of bias as required by Davis. If there was no pending delinquency adjudication with regard to T. H. at the time of the trial in the case sub judice, defendant’s conviction must be affirmed. Should the trial court reach a conclusion that there was no such pending delinquency adjudication, the trial court shall enter an order stating this conclusion, and defendant may file, within 30 days after the entry of such order, a new appeal from his conviction limited in scope to the trial court’s order entered on remand.

Case remanded with direction.

Andrews and Blackburn, JJ., concur.


text:
    A95A1812.
    RAMSEY v. THE STATE.
    (462 SE2d 806)
   Birdsong, Presiding Judge.

Arthur Scott Ramsey appeals his conviction for violating the Georgia Controlled Substances Act by selling a non-controlled substance represented to be a controlled substance. See OCGA § 16-13-30.1. He contends the trial court erred by denying his motions for mistrial after the State’s witnesses improperly injected prior illegal conduct in the proceedings; by failing to grant a mistrial after a third party had improper and prejudicial contact with the jury; by failing to charge on a lesser included offense; and by basing its sentence on an improper prior conviction. Held:

1. Ramsey’s first enumeration of error asserts that the trial court erred by denying his motions for a mistrial because two of the State’s witnesses .allegedly placed his character in issue.

(a) In the first instance, the witness’s answer about other illegal activity was made during cross-examination by Ramsey’s trial defense counsel, and this apparent “inadvertent comment in the course of cross-examination . . . does not rise to the level of misconduct condemned in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396).” Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). Counsel cannot take chances in propounding questions which might elicit damaging answers and then demand a mistrial on that basis. Id. Further, if “prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.” (Citation omitted.) Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315). We find no abuse of discretion in this case.

(b) In the second instance, after Ramsey’s motion for a mistrial, the trial court issued curative instruction, and Ramsey failed to renew his motion for a mistrial. Under these circumstances, Ramsey failed to preserve the issue, and there is nothing for this Court to review. Jackson v. State, 248 Ga. 480, 483 (284 SE2d 267); Mobley v. State, 198 Ga. App. 497, 499 (402 SE2d 100).

2. Ramsey also contends the trial court erred by refusing to grant his motion for a mistrial after a person associated with him had improper contact with an alternate juror. The record shows that upon report of the incident, the trial court conducted an inquiry, ascertained the scope of the problem, and determined that the jurors would not attribute the improper conduct to Ramsey. After Ramsey’s motion for a mistrial was denied and the trial court issued curative instructions, Ramsey again failed to preserve the issue for appellate review by renewing his motion for a mistrial. Jackson v. State, supra; Mobley v. State, supra. Thus, this enumeration of error is without merit. Moreover, as the alternate juror did not participate in the deliberations and the other jurors indicated that they would not be affected by the incident, Ramsey has failed to demonstrate that any harm resulted from his friend’s conduct.

Decided October 6, 1995.

Edwin J. Wilson, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Irvan A. Pearlberg, Assistant District Attorneys, for appellee.

3. The trial court did not err by refusing to charge that OCGA § 16-13-30.2 is a lesser included offense of OCGA § 16-13-30.1. State v. Burgess, 263 Ga. 143, 145 (429 SE2d 252).

4. The record supports Ramsey’s contention that the trial court improperly considered a purported prior conviction which was not supported by admissible evidence. Under our law the best evidence of the conviction is a certified copy of the conviction. OCGA § 24-5-31. Thus, the prosecutor’s statement concerning a prior conviction was not admissible to prove the prior conviction. Moreover, as the trial court’s comments show the prosecutor’s comments were considered in arriving at the sentence imposed on Ramsey, the sentence must be vacated and the case remanded to the trial court for resentencing. Sinkfield v. State, 262 Ga. 239, 240 (416 SE2d 288).

Judgment affirmed in part and vacated in part.

Johnson and Smith, JJ., concur.


author: Andrews, Judge. Beasley, Chief Judge, McMurray, Presiding Judge,

text:
    A95A0993.
    NEUBERT et al. v. VIGH et al.
    (462 SE2d 808)
   Andrews, Judge.

Appellant Neubert appeals from the state court’s grant of summary judgment in favor of appellee Vigh on the issue of Vigh’s liability for damages for injuries sustained by Brad Neubert, appellant’s son, in a single car collision caused by Jason Vigh, appellee’s minor son. Neubert’s sole enumeration of error is that the lower court’s grant of summary judgment was improper because Vigh admitted liability for Neubert’s son’s injuries by offering to pay medical bills related to the automobile accident.

Vigh’s son, Jason, took Vigh’s car without permission while he was out of town and while Jason was staying with another family. Jason had a single car accident in which three passengers were injured, including Neubert’s son Brad. Several days later, Vigh visited the parents of the injured passengers and offered to help pay their insurance deductibles. Neubert contends that Vigh admitted liability by making these offers and therefore summary judgment was not proper. Neubert relies on Monson v. Brown, 163 Ga. App. 42 (292 SE2d 486) (1982), which held that an offer to pay medical bills constitutes an admission of liability.

Monson has not been expressly overruled, but more recent cases demonstrate that it is not controlling. Recently, this Court held that “activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should not be considered as an admission of liability.” Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (416 SE2d 127) (1992); Rosequist v. Pratt, 201 Ga. App. 45, 46 (410 SE2d 316) (1991). Further, in Steverson v. Eason, 194 Ga. App. 273 (390 SE2d 424) (1990), the court held that statements made by the defendant that he felt responsible for the death of plaintiff’s husband and that he would do whatever he could for the plaintiff fell within the category of expressions of benevolence or sympathy and not into the category of admissions of liability for the injury.

Neubert relies on two affidavits to support her position that Vigh’s offers to pay were not made on the impulse of benevolence or sympathy, but instead constituted admissions of liability. In one affidavit, Wanda Jackson states that Vigh’s wife told Jackson that the Vighs would pay Jackson’s son’s medical bills. However, a statement by Vigh’s wife cannot be construed as an admission by Vigh and thus is irrelevant. In the other affidavit, Robert Borgwat states that Vigh said he would be responsible for Borgwat’s son’s medical bills. Under Steverson, this statement does not constitute an admission of liability either, but rather is an expression of benevolence or sympathy. Further, Vigh stated in his deposition that he offered to pay Neubert’s insurance deductible “out of sympathy for Karen Neubert in telling me what her problems were and not having the money to pay for some of the medical bills.”

It should also be noted that this is not a case in which the person offering to help with the medical bills was the person directly involved in the accident. The dissent stresses the amount of time that had passed before Doug Vigh made the offer of help and thus distinguishes this case from Rosequist and Steverson. However, since Doug Vigh was out of town at the time of the accident, a contemporaneous offer of help was not possible. Further, the record clearly shows that Doug Vigh intended to have Jason pay the medical deductibles as well as all fines accruing from the accident.

Therefore, since Neubert has come forward with no evidence tending to show that Vigh felt that he was responsible for the accident because he had negligently supervised his child by allowing him access to a “dangerous instrumentality,” the trial court properly granted summary judgment.

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Smith, JJ., concur. Beasley, C. J., and Ruffin, J., concur specially. McMurray, P. J., dissents.

Beasley, Chief Judge,

concurring specially.

The mother of the injured boy, representing herself and, as next friend, her son, contends that the father of the boy who was driving the father’s car at the time of the collision failed to supervise his son, failed to secure the car keys, and accepted responsibility and agreed to pay medical bills. She does not invoke the family purpose doctrine.

On the defendant father’s motion for summary judgment, the trial court compiled the undisputed material facts and concluded that, as a matter of law, the father was not negligent either in the supervision of his son or in securing the keys from him. The facts in this regard are that the son was unlicensed and was forbidden to drive the car, that he was not staying at home while his parents were out of town, and that although the keys were in the ignition, the car was in a locked garage, and the son had to turn off the house alarm and open the garage using a security code in order to get the car.

On appeal, the plaintiff does not challenge this recitation of the facts nor oppose the conclusion of law reached by the trial court based on them. Instead, she contends only that there are genuine issues of material fact requiring a jury to decide whether the father’s actions and words following the accident constituted an admission of liability which would sustain a verdict in her favor. On this separate point, the trial court had concluded that the undisputed facts concerning the post-collision reaction of the defendant in the circumstances could not, as a matter of law, be found to constitute an admission of liability.

Thus appellant would have us hold that even where there is no legal liability, a defendant may be held legally liable if he agrees to pay. There is no authority for this position. An admission of liability has efficacy only if there is liability. If there is none, then the statements of the alleged tortfeasor constitute merely expressions of sympathy, benevolence, or an acceptance of moral responsibility. The latter, which does not equate with the narrower requirements of legal liability, seems to be the intention here, although a jury could find that the father’s acts and words were intended for the purpose of sympathy or benevolence — or even an admission of liability. A jury would be needed to make a finding based on the credibility of the witnesses and the weight of the evidence. White v. The Front Page, 133 Ga. App. 749 (213 SE2d 32) (1975). Cf. Rosequist v. Pratt, 201 Ga. App. 45 (1) (410 SE2d 316) (1991); Steverson v. Eason, 194 Ga. App. 273 (390 SE2d 424) (1990); Utz v. Powell, 160 Ga. App. 888, 890 (2) (288 SE2d 601) (1982). In these three cases, the circumstances were such that the court could conclude as a matter of law that the statements were not admissions of liability.* But the first three possibilities would have no legal consequences, and the fourth is foreclosed in this case because appellant has accepted the trial court’s conclusion that there was no breach of duty on the part of the father.

I am authorized to state that Judge Ruffin joins in this special concurrence.

McMurray, Presiding Judge,

dissenting.

To reach the correct result in the case sub judice, some fundamental understanding must be had of two rules of law. Monson v. Brown, 163 Ga. App. 42 (292 SE2d 486) has been chosen by the majority to represent the rule that an offer to pay the medical bills of another constitutes an admission of liability. An alternative rule, that activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should not be considered as an admission of liability, has been chosen as the prevailing rule by the majority and supported by several recent citations of authority, the most recent being Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2) (416 SE2d 127). Are we really dealing with two separate rules of law here or has one supplanted the other over time? Certainly the latter is suggested by the language of the majority opinion.

However, in my view, this is where the majority has taken the wrong turn in analyzing the case sub judice. Not only are both of these rules of law correct and still viable, they have existed side by side for many years. In other words, they are not mutually exclusive. For example, the rule chosen by the majority can be traced back many years before the decision in Monson. See Rape v. Barker, 25 Ga. App. 362, 363 (103 SE 171); Dougherty v. Woodward, 21 Ga. App. 427, 430 (94 SE 636). And there are cases which acknowledge the need to choose which of these alternative rules governs a given set of factual circumstances. Utz v. Powell, 160 Ga. App. 888, 890 (2) (288 SE2d 601). There may even be said to be a third side to this dilemma posed by offers to compromise. OCGA § 24-3-37; Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2), supra.

The proper issue in the case sub judice involves defining the boundaries between these rules and determining which if any is controlling. The majority, by discarding one or more of these alternatives, has pre-determined its conclusion.

Decided October 10, 1995.

Silfen, Segal, Mills & Fryer, Keith E. Fryer, for appellants.

Alembik, Fine & Callner, G. Michael Banick, Janet L. Franchi, for appellees.

In my view, a jury issue is presented in the case sub judice as to whether Vigh’s offers to pay medical expenses or some portion thereof were an admission against interest of liability for the incident or an expression of sorrow or sympathy. Vigh’s testimony as to his intent may have been probative evidence in support of the conclusion reached by the majority, but unlike the majority I do not see it as being uncontroverted.

I would hold, consistent with this Court’s decision in Monson, that Vigh’s offers to pay medical expenses constitute an admission of liability and that evidence of this controverts Vigh’s testimony as to his intent. The resulting genuine issue of material fact should be submitted to a trial jury.

The common thread which joins the cases relied upon by the majority, and others in which a post-incident statement is held as a matter of law to be an expression of benevolence or sympathy and not an admission of liability, is the existence of some circumstance contemporaneous with the statement which demands a finding of such a benign intent. In Deese, intent was shown by the injured party’s own testimony concerning a plea to an investigator that because her disability entitlements had expired there would be no Christmas for the children. Both Rosequist v. Pratt, 201 Ga. App. 45 (410 SE2d 316), and Steverson v. Eason, 194 Ga. App. 273 (390 SE2d 424), relied upon by the majority, involved offers made in extreme proximity to the time of the underlying incident, that is on the day following the incident in each of these cases, while in the case sub judice the offers were not made until several days later. See also in this connection Rape v. Barker, 25 Ga. App. 362, 363, supra, in which the offer was made on the day following the incident. In the case sub judice, there is no evidence which compels the conclusion reached by the majority. Indeed, I find no prior case of this type in which solely a party’s testimony after litigation has begun is held to compel a conclusion as to the nature of the intent underlying an offer to pay medical bills.

       My quarrel with Monson v. Brown, 163 Ga. App. 42 (1) (292 SE2d 486) (1982), is that the court held that defendant’s post-incident efforts and statements constituted an implied admission of liability. Whether it did or not should have been treated as a jury question, but the court left to the factfinder merely the ultimate issue of liability.

       The ruling in Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2) (416 SE2d 127) (1992), is built on the unstated conclusion that the action of the investigator did not constitute an admission of liability as a matter of law in the circumstances of that case.


author: Ruffin, Judge.

text:
    A95A1370.
    JACKSON v. WIMBLEY.
    (463 SE2d 48)
   Ruffin, Judge.

Mary Wimbley sued her daughter, Gloria Jackson, for injuries she allegedly received in a fire at Jackson’s home. Wimbley alleged that Jackson negligently supervised her four-year-old grandson, whom she knew to have shown an interest in matches or lighters, by leaving such dangerous instruments within the child’s reach. The trial court denied Jackson’s motion for summary judgment, and we granted her application for interlocutory appeal. For reasons which follow, we reverse.

1. Jackson contends the trial court erred in denying her motion for summary judgment because Wimbley failed to prove that Jackson either provided the child with a dangerous instrument or knew of any proclivity of the child to play with matches. We agree.

Wimbley testified that the firefighters told her the fire started because Jackson’s four-year-old grandson was playing with matches. But Wimbley also testified that she had not seen matches around the house and had never seen the child play with matches or a lighter prior to the fire. Although Wimbley argues on appeal, as she apparently did below, that the child had played with a lighter on one occasion two years earlier, the evidence from Gloria Jackson’s deposition in that regard was never entered into evidence and made a part of the record. Nonetheless, even had the testimony been part of the record, one isolated instance of this behavior would not constitute a “propensity” for playing with a lighter. See Saenz v. Andrus, 195 Ga. App. 431 (393 SE2d 724) (1990). Moreover, Wimbley testified she did not recall the child having an interest in fire.

“In those cases in which the parent did not furnish the dangerous instrumentality but through negligence allowed access thereto to the child, the standard for imposing liability upon a parent is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. If such knowledge cannot be shown on the part of [the parent], then liability cannot attach to her, as a parent is not an insurer that the child will not harm another.” (Citations and punctuation omitted.) Andrus, supra at 432-433.

In Andrus, a child obtained a butcher knife from a kitchen drawer and threw it at a playmate. The mother was aware that her child had previously thrown pocketknives at the living room wall and had instructed him not to use any knife without permission. The mother was also aware of her son’s “aggressive tendencies” toward other boys. In upholding summary judgment for the mother, we found that “although [the mother] was on notice of her son’s propensity to throw pocketknives against the wall of her house, she was not on notice that her son had any propensity whatsoever to throw any type of knife at or near another human being . . . [and] she had no duty to guard against it.” (Citations and punctuation omitted.) Id. at 433.

Decided October 10, 1995.

Swift, Currie, McGhee & Hiers, Lloyd B. Hedrick, Jr., Margaret C. Briggs, for appellant.

Kenneth L. Shigley, for appellee.

The circumstances of the instant case do not establish caretaker negligence because there is no evidence that Jackson furnished her grandson with the matches which apparently caused the fire. Even if the fire was started by a lighter, despite Wimbley’s testimony that the firefighters never suggested that possibility, there is no evidence of record that Jackson furnished or permitted her grandson access to a lighter. Most importantly, there is no evidence of record that Jackson’s grandson had a propensity for starting fires or that Jackson should have known of any such propensity and guarded against it. Accordingly, the trial court erred in denying Jackson’s motion for summary judgment.

2. Based on our holding in Division 1, we need not address Jackson’s remaining enumerations of error.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A1711.
    HILLARD et al. v. FEDERAL PAPER BOARD COMPANY, INC.
    (463 SE2d 494)
   Beasley, Chief Judge.

Hillard and his wife filed this action against Federal Paper Board Company for injuries sustained by him and for her resultant loss of consortium. The Hillards assert that defendant’s employees negligently caused Hillard’s injuries after he came onto defendant’s premises as a business invitee. They appeal the trial court’s grant of defendant’s motion for summary judgment.

Hillard testified that during the course of his employment as a truck driver, he went to defendant’s plant to pick up a load of lumber. As on his previous trips there, defendant’s employees loaded the lumber onto his truck. Hillard stood beside his rig and observed. After the loaders finished, they instructed Hillard to affix security straps, which he did. He was instructed by the shipping clerk to move to an area off defendant’s premises to cover the lumber with the tarp, which the loaders had put back on the top of the load. This was after the load was weighed, at which time Hillard signed a bill of lading making him responsible for it. He covered the lumber with the tarp by walking alongside the lumber and rolling the tarp over it. After he mounted the trailer to continue unfurling the tarp, he stepped into a gap between the ends of the stacks of lumber, now covered by the tarp, and fell off, sustaining severe and permanent injuries.

He did not see the gap because it was not visible from where he had been standing on the ground, and he had covered the lumber without first inspecting how it was stacked. He had not done so because, on prior occasions, defendant’s employees had loaded it with no gaps between the boards, and no one advised him that the lumber had been loaded differently this time. Defendant’s employees acknowledged that it is their custom and practice to load boards flush against one another so that there are no gaps, unless the driver wants it another way or it is not feasible.

Defendant argues in support of summary judgment on the bases that: (1) Hillard assumed the risk of his own injury and failed to look at what he was doing, contrary to the requirements of the plain view doctrine; (2) he had equal or superior knowledge of the dangerous condition; and (3) his own actions rather than those of defendant proximately caused his injury.

1. Unlike cases such as Emory Univ. v. Duncan, 182 Ga. App. 326, 328 (2) (355 SE2d 446) (1987), and Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 354 (1) (94 SE2d 612) (1956), this case is not subject to the plain view doctrine. Defendant presented no evidence controverting Hillard’s testimony that he could not see the gap in the lumber from where he had been standing on the ground or that he could not see it because it was covered by the tarp.

A jury could find that Hillard failed to comply with his duty to exercise ordinary care for his own safety, in that he should have discovered the gap and would have done so if he had inspected the lumber from the top before covering it. However, it could also find that defendant’s employees breached their duty of exercising reasonable care for the safety of a business invitee by creating a gap and not informing Hillard, leaving him with the belief that the boards were flush and there was no gap. Compare Alterman Foods v. Ligon, 246 Ga. 620, 625 (272 SE2d 327) (1980); Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 343 (4) (226 SE2d 142) (1976); Burd v. City of Atlanta, 52 Ga. App. 681 (184 SE 412) (1935).

Under these circumstances, “ ‘[w]e can not say . . . as a matter of law that the plaintiff was lacking in ordinary care in not inspecting [the lumber], and that [he] could have avoided the consequences of the defendant’s alleged negligence when the same was unknown to [him]. It can not be held as a matter of law that the circumstances were such that an ordinarily prudent person would have reason to apprehend its existence.’ [Cit.]” Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733 (149 SE2d 527) (1966); compare Meriwether Mem. Hosp. Auth. v. Gresham, 202 Ga. App. 535 (1) (414 SE2d 694) (1992). “[I]f the jury found both parties to be negligent, the rule of comparative negligence applicable ‘in other cases’ under [OCGA § 51-11-7] would govern.” Chotas, supra at 733-734.

Decided August 16, 1995

Reconsideration denied October 11, 1995

Burge & Wettermark, Van K. McCombs II, for appellants.

Croy, Harris & Hammond, A. Cullen Hammond, for appellee.

2. The evidence thus far would support a finding that defendant had superior knowledge of the dangerous condition. Cases such as Brumbelow v. City of Rome, 215 Ga. App. 321 (450 SE2d 345) (1994), and Lonard v. Cooper & Sugrue Prop., 214 Ga. App. 862 (449 SE2d 348) (1994), are distinguishable. In those cases, unlike this one, the dangerous condition was not created by defendant. Cases such as O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 241 (1) (390 SE2d 248) (1990), are likewise distinguishable because they require a plaintiff, who has equal knowledge of a dangerous condition, to use ordinary care to avoid the consequences of defendant’s negligence. Hillard testified without contradiction that he did not have equal knowledge.

3. The evidence does not support the conclusion that, as a matter of law, Hillard’s actions were the proximate cause of his injury.

In Union Carbide Corp. v. Holton, 136 Ga. App. 726, 728 (1) (222 SE2d 105) (1975), relied on by defendant, the Court held that defendant’s act could not be the proximate cause where there had occurred between it and plaintiff’s injury an independent, intervening act of someone other than defendant, which act was not foreseeable by defendant, was not triggered by defendant’s act, and was sufficient itself to cause the injury. Here, there is no evidence of any intervening act.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1193.
    STRINGER et al. v. HARKLEROAD & HERMANCE et al.
    (463 SE2d 152)
   Birdsong, Presiding Judge.

W. Kenneth Stringer III, individually, and Monarch Capital Group, Inc. f/k/a Stringer, Watt and Williams (collectively “Stringer”) appeal a judgment affirming an arbitration award in favor of Harkleroad & Hermanee, P. C., and Donald R. Harkleroad, individually and in his capacity as President of Harkleroad & Hermanee, P. C. (collectively “Harkleroad & Hermanee”). Although Stringer filed two other appeals concerning this dispute, those appeals were dismissed. In this appeal Stringer contends the lower court erred by granting Harkleroad & Hermance’s motions in limine regarding the arbitration proceedings.

On March 9, 1987, Stringer contracted with Harkleroad & Hermanee to perform certain legal services pursuant to an engagement agreement. The engagement agreement provided for prompt payment of services, fees, and expenses and quoted a range of hourly rates from $60 to $200 but also allowed for additional billing based on special factors such as unusual time requirements and special expertise. The contract also provided for the payment of interest on past due bills at the rate of one and one-half percent per month.

Pursuant to this agreement, Harkleroad & Hermanee provided legal services from March 1987 through October 1989 and handled some other legal matters in 1990. The legal services provided were highly complex and included stock acquisitions, multi-million dollar financing transactions, refinancing transactions, corporate closings, public and private offerings, and other intricate legal business matters. The legal services also involved trial preparation work and drafting corporate documents.

At some point, Kenneth Stringer III became dissatisfied with what he deemed excessive billings by Harkleroad & Hermanee. Stringer made partial payment of approximately $449,000 for legal services but refused to pay the full amount he had been billed. After negotiations proved unsuccessful, Harkelroad & Hermanee sent Stringer a demand letter on September 4, 1990. When Stringer failed to pay the disputed bills, Harkleroad & Hermanee filed suit. Stringer answered and counterclaimed alleging breach of fiduciary duty, breach of professional covenant of good faith and fair dealing, fraud, negligent misrepresentation, unjust enrichment, usury, restitution, forfeiture and professional negligence. Later, the court permitted the addition of Harkleroad, individually, as a counterclaim defendant.

Nearly three years later, the state court effectively disposed of most of the counterclaim leaving for resolution only the counterclaims of breach of fiduciary duty, fraud, negligent misrepresentation and usury and the original claim for nonpayment of legal fees. Several months later on the eve of trial, all parties consented to binding arbitration which was effectuated by court order. In that order the court specifically reserved the right to enforce the decision of the arbitrators and the right to rule on motions and relevant matters. Prior to arbitration the court ruled on two motions in limine that were pending when the case was referred for arbitration. One motion sought to exclude any “pattern evidence” relating to similar transactions with other clients and the other motion sought to exclude any evidence relating to the Code of Professional Responsibility or professional legal ethical standards. Stringer filed a direct appeal of this ruling, but this Court dismissed that appeal because Stringer did not follow the interlocutory appeals procedures. Thereafter, the parties participated fully in the arbitration proceedings. The arbitrators awarded appellees $488,663 effective December 1, 1994 plus interest of $241 per day. This award was confirmed by the trial court on December 27, 1994. This appeal followed. Held:

1. OCGA § 9-9-13 sets forth the procedural predicate necessary for judicial voiding of an arbitrators’ award. The trial court may vacate an award if the court determines that the rights of a party were prejudiced on any one of four grounds: “(1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; or (4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection.” Id. On appeal, as well as below, Stringer has not claimed corruption, fraud or misconduct, and he also has not claimed the arbitrators were not impartial, or that the arbitrators overstepped their authority or failed to follow proper procedures. Further, this appeal does not concern the sufficiency of the evidence to support the award. See Hundley v. Greene, 218 Ga. App. 193 (461 SE2d 250).

In fact, Stringer has made no arguments based on OCGA § 9-9-13. Instead, Stringer has limited his challenges only to the pre-arbitration ruling by the trial court on the motions in limine. Stringer enumerates only two errors: “1. The trial court erred in granting the appellees’ motion entitled ‘Motion in Limine — Code of Professional Responsibility and Standards of Conduct,’ and in prohibiting the appellants from introducing any portions of the Code of Professional Responsibility or the Standards of Conduct or other ethics or professional rules or any testimony or evidence or any allegations in connection therewith”; and “2. The trial court erred in granting the appellees’ motion entitled ‘Motion in Limine — Pattern Evidence,’ and in prohibiting the appellants from introducing any evidence, statements, allegations, or actions of any alleged pattern and practice of fraudulent, improper or unethical behavior of the appellees or of transactions between appellees and any other party other than appellants and their affiliates.”

Although Stringer asserts he is appealing the judgment confirming the binding arbitration award, the entire appellate brief, including all citations of authority, focuses exclusively on the court’s ruling on the motions in limine. Stringer offers no evidence nor any argument based on OCGA § 9-9-13 on why this order should be reversed.

“It is axiomatic that at the appellate level, one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” (Punctuation omitted.) Studdard v. Satcher, Chick, Kapfer, 217 Ga. App. 1, 3 (456 SE2d 71). Accordingly, Stringer cannot avoid the consequences of his agreement to the consent order. The burden on appellants is especially high in attempting to overturn an arbitration decision. Fisher v. Gause, 236 Ga. 663 (225 SE2d 2) (arbitration award will not be set aside if there is any evidence to uphold it); Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (4) (335 SE2d 708) (court’s authority to vacate arbitration award severely limited and governed by statute).

Stringer did not present any evidence that the legal services were in any way unsatisfactory. Neither Stringer nor anyone else presented any evidence of a breach of fiduciary duty, fraud, negligent misrepresentation or usury. All the testimony and record evidence concerned billing, and during arbitration Stringer attempted to controvert only about $30,000 of nearly one-half million dollars in billing. Stringer’s office assistant admitted she routinely filed the legal bills without the bills being paid and conceded that she was aware that Stringer had discontinued making a regular monthly payment to the firm. As Stringer presented no issues in arbitration to which the evidence excluded by the ruling on the motion in limine would have been relevant, he has not demonstrated that he was harmed by the rulings. Consequently, he cannot prevail on these issues. A party seeking a reversal must show not only error, but injury arising from the error alleged (Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328)); an appellant must show harm as well as error to prevail on appeal (Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892)), and this cannot be shown by unsupported assertions in trial briefs. Rowe v. Rowe, 195 Ga. App. 493 (393 SE2d 750).

Therefore, as we find there is evidence in the record to support the arbitration award, and because appellants have failed to set forth any procedural defects pursuant to OCGA § 9-9-13, we affirm the judgment of the lower court confirming the arbitrators’ award.

2. Harkleroad & Hermance’s motion for sanctions under OCGA § 5-6-6 is granted. This Code section authorizes sanctions for frivolous appeals which are taken up only for purposes of delay. This is just such a case. What was a fairly routine collection case on a delinquent account spiralled into vituperative and vitriolic litigation. Now at this juncture, years after receiving and accepting legal services which went largely unpaid, Stringer noticed an appeal (one of three filed) which has no merit.

Delay can be assumed where an appeal lacked merit. Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (441 SE2d 684); Foreman v. Eastern Foods, 195 Ga. App. 332 (393 SE2d 695). If an appellant knew or should have known that an appeal was ill-founded, sanctions should issue. Ray v. Standard Fire Ins. Co., 168 Ga. App. 116 (308 SE2d 221).

Decided October 11, 1995.

The Wilson Law Firm, L. Matt Wilson, J. Phillip London, Jr., for appellants.

Schwall & Schwall, Emory A. Schwall, Harkleroad & Hermanee, Donald R. Harkleroad, for appellees.

The evidence shows that in proceedings regarding a supersedeas bond in this appeal, Stringer could not cite a single case in support of his appellate claims. Appellant’s counsel also conceded in open court, “It may also be true, Your Honor, that we have waived these arguments by simply participating in the arbitration because there is a strong line of cases toward that, toward that extent.” Importantly, Harkleroad & Hermanee presented evidence that this is not the first time Stringer failed to pay legal bills. They informed the court below that Stringer’s house valued by the tax office at $539,300, had two outstanding mortgages, one for $400,000 and another mortgage owed to one of Stringer’s previous lawyers for “in excess of three or four hundred thousand dollars.”

We note that damages for delay are especially appropriate where the underlying action, like this one, involves a collection action. Kennerly v. First Colony Bank, 205 Ga. App. 352 (422 SE2d 243); Jamison v. Button Gwinnett Savings Bank, 204 Ga. App. 341 (419 SE2d 91). Therefore, we grant an award for damages for delay against Stringer in the amount of $49,519, which is ten percent of the amount of the judgment, and that Stringer be required to pay interest at the legal rate on that award from the date this decision is published. The trial court is directed to enter judgment in favor of Harkleroad & Hermanee for damages in the amount of ten percent of the judgment. OCGA § 5-6-6; Harris v. Wilwat Prop., 201 Ga. App. 161, 162 (410 SE2d 372).

Judgment affirmed with direction.

Johnson and Smith, JJ., concur.