text:
    A95A0134.
    JORDAN v. THE STATE.
    (457 SE2d 692)
   McMurray, Presiding Judge.

Defendant was charged via indictment with one count of trafficking in cocaine, for being in actual possession of more than 28 grams of cocaine, and also with one count of distribution of cocaine. The evidence adduced at his jury trial, where defendant represented himself, showed that Special Agent Greg Linton of the Georgia Bureau of Investigation identified defendant as the person who sold him “two ounces of crack . . .” in exchange for $3,000 on January 18, 1990. This transaction took place at defendant’s Soperton home, on County Line Road in Treutlen County, Georgia. “At this particular occasion, [defendant] sold it to [Special Agent Linton] in eight-ball quantities, which is an eighth of an ounce. So, that means [defendant] had sixteen bags which would have equaled two ounces.” Defendant “brought the dope into the house and placed it on the table.” Special Agent Linton “looked at them, placed them back in the brown paper bag and put the brown paper bag in [his] pocket, left [defendant’s] house and gave the brown paper bag to Agent Cannon.”

Count I, trafficking in cocaine, was withdrawn by the State before closing argument, and an order of nolle prosequi was entered as to that count. The jury found him guilty of Count II, distribution of cocaine. His motion for new trial was withdrawn and this direct appeal followed. Defendant is represented by appointed counsel on this appeal. Held’.

1. Defendant first contends the trial court erred “by permitting the State to withhold exculpatory Brady evidence until the trial, to wit, the [audio] recording [of the drug sale] made by [Special Agent Linton].” However, the State filed statements of compliance with defendant’s Brady motion, reciting that his then-counsel of record had been served with a copy of the indictment, a list of witnesses, a copy of the report of the State Crime Laboratory, and “All items discoverable which are favorable to the Defendant as to the issue of guilt or punishment, and are known by the State to exist.” Special Agent Linton identified State’s Exhibit 2 as “a microcassette tape recording containing [the] conversation on January 18th, 1993 [sic], between myself and [defendant].” The existence of this tape was known to defendant well before trial because the attorney representing defendant on a separate federal charge had listened to “eight or ten taped conversations and [was of the opinion] that there was no evidence of a drug transaction.” The tape of this sale was in court and available at trial. When directly asked by the court whether he “intend [ed] to introduce the tape into evidence . . . [defendant expressly declined, replying:] Not on my account, no sir.” Thereafter, when the State introduced it, defendant had no objection to its admissibility. As the tape was played for the jury, Special Agent Linton explained certain background noises and clarified his own statements but never purported to translate or repeat statements made by the defendant himself.

“Brady [v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)] holds that suppression by the prosecution of evidence favorable to the accused which is material to either guilt or punishment violates due process. Brady does not require pre-trial disclosure of materials sought under a Brady motion. [Cits.] [The mandate of] ‘Brady is not violated when the Brady material is available to defendants during trial. (Cits.)’ [Cit.] . . . [The defendant] must show that earlier disclosure would have benefited the defense and that the delayed disclosure deprived him of a fair trial. Wallin v. State, 248 Ga. 29 (6) (279 SE2d 687) (1981).” Dennard v. State, 263 Ga. 453, 454 (4) (435 SE2d 26).

In the case sub judice, defendant fails to make any showing how an earlier disclosure of the tape would have benefited him or how any delay harmed him. Moreover, we have listened closely to this tape and determine that it is not exculpatory. The tape is of poor quality and reveals with certainty only a garbled conversation between two adult males. Special Agent Linton is the only one identified. Despite repeated playings, only Special Agent Linton’s voice is both audible and intelligible over loud music (Earth, Wind and Fire) in the background. To the extent that this tape corroborates Special Agent Linton’s testimony of going to defendant’s house and completing the drug transaction, it is incriminating, not exculpatory. The mere fact that the identity and conversation of the second adult male is wholly indeterminate is not exculpatory of this defendant. This case falls within the rule that “ ‘Brady is not violated when the [purported] Brady material is available to defendants during trial. (Cits.)’ [Cit.] . . .” Dennard v. State, 263 Ga. 453, 454 (4), supra. Inasmuch as we have determined that the tape is not exculpatory material, defendant’s reliance on West v. State, 213 Ga. App. 362, 363 (1), 364 (1) (a) (444 SE2d 398), is misplaced. This enumeration is without merit.

2. Defendant’s second enumeration has been rendered moot by the forwarding to this court of the microcassette tape that is State’s Exhibit 2, by way of certified supplemental record.

3. Defendant’s third enumeration contends the trial court erred in imposing a life sentence under OCGA § 16-13-30 (d) when the State failed to give notice before trial under OCGA § 17-10-2 (a) that it intended to rely on a prior drug conviction. Scrutiny of the record in the case sub judice reveals no written pre-trial notice by the State that it intended to seek a life sentence as enhanced punishment on the ground that this would be defendant’s second or subsequent violation of OCGA § 16-13-30 (b).

“[Statutes imposing recidivist or enhanced punishment must be read in conjunction with OCGA § 17-10-2.” Mays v. State, 262 Ga. 90, 91 (1) (b) (414 SE2d 481). “OCGA § 17-10-2 (a) prohibits a trial court from considering anything in aggravation that the state has not informed the defendant, prior to trial, it will offer as evidence in aggravation of punishment during the sentencing phase of trial. See also State v. Marshall, 195 Ga. App. 535, 536 (394 SE2d 379) (1990). Thus, if the state has not specifically informed the defendant, prior to trial, that it intends to seek enhanced punishment based upon a conviction for a prior offense, the trial court would not be [authorized] to impose an enhanced sentence, even if the offense for which the defendant is being tried is a ‘second or subsequent offense.’ ” Mays v. State, 262 Ga. 90, 92 (1) (b), supra. See also Armstrong v. State, 264 Ga. 237, 238 (1) (442 SE2d 759). OCGA § 17-10-2 (a) “does not require written notice, [but does require] ‘clear notice.’ Graham v. State, 171 Ga. App. 242, 256 (17) (319 SE2d 484) (1984).” Martin v. State, 207 Ga. App. 861, 862 (429 SE2d 332). In the case sub judice, there is no contention that clear and timely pre-trial notice was orally given. Compare Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386). As the life sentence imposed without clear pre-trial notice is unauthorized, we vacate the judgment as to sentence and remand with direction that defendant be “punished by imprisonment for not less than five years nor more than 30 years.” OCGA § 16-13-30 (d). This disposition renders defendant’s fourth enumeration moot.

Decided May 10, 1995.

Joe H. Thalgott, for appellant.

Curtis Jordan, pro se.

Ralph M. Walke, District Attorney, L. Craig Fraser, Peter F. Larsen, Assistant District Attorneys, for appellee.

Judgment as to conviction affirmed; judgment as to sentence vacated and remanded with direction.

Andrews and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A0700.
    AL WHO ENTERPRISES, INC. et al. v. CAPITOL INDEMNITY CORPORATION.
    (457 SE2d 696)
   Beasley, Chief Judge.

According to the allegations of the complaint, appellant Fleming owns and operates a nightclub in Columbus, known as Al Who’s Place. The restaurant was insured by appellee Capitol Indemnity Corporation under a general commercial liability policy issued to appellant Al Who Enterprises, Inc. Hanlon and Karpew, servicemen stationed at Fort Benning, instituted tort suits against Al Who Enterprises, Inc., Fleming, Howard (the manager of Al Who’s Place), and others as a result of an altercation which erupted in the vicinity of the nightclub. The insurer sought a declaratory judgment as to its policy obligations concerning those suits. Fleming and the corporate defendant appeal the superior court’s partial grant of the appellee’s motion for summary judgment.

Tort suits

In Count I of their respective complaints, Hanlon and Karpew sought compensatory and punitive damages, based on allegations that Howard and other nightclub employees assaulted and battered them without just cause or provocation, causing them to sustain multiple injuries.

Based on allegations that the nightclub’s agents and employees had committed an assault upon him by threatening to cause his arrest and by actually causing him to be handcuffed, which caused him to fear arrest and imprisonment without just cause or provocation, Karpew sought compensatory and punitive damages for the intentional infliction of emotional harm in Count II of his complaint.

Both Hanlon and Karpew alleged that Fleming misrepresented to their commanding officers that they were the aggressors and had caused the fight. In this connection, Hanlon sought compensatory and punitive damages for intentional infliction of emotional harm (Count II of his complaint) and for libel and slander (Count III), and Karpew sought compensatory and punitive damages for libel and slander (Count IV of his complaint).

Karpew also sought both types of damages for false imprisonment (Count III), alleging that the nightclub’s agents and employees forcibly restrained and imprisoned him by preventing him from leaving the premises and by causing him to be handcuffed by the police.

Disputed facts

In Howard’s affidavit opposing summary judgment, he testified that Hanlon and Karpew exhibited aggressive behavior at the scene of the altercation, posing immediate danger to others; that he and other nightclub employees merely restrained them in order to keep them from escaping and injuring others before the police arrived; and that at no time did he injure them, commit any intentional act resulting in injury to them, or direct others to injure them.

Policy provisions

Policy Coverage A, for bodily injury and property damage liability, states: “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend any ‘suit’ seeking those damages.”

An exclusion within Coverage A states: “This insurance does not apply to: a. ‘Bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured. This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.”

Coverage B, which is for personal and advertising injury liability, states: “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal injury’ or ‘advertising injury’ to which this coverage part applies. We will have the right and duty to defend any ‘suit’ seeking those damages.”

An exclusion within Coverage B states: “This insurance does not apply to: a. ‘Personal injury’ or ‘advertising injury’: (1) Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.”

An endorsement containing an exclusion for assault and battery states: “This insurance does not apply to bodily injury, property damage or personal injury arising out of assault, battery, or assault and battery.” (Emphases deleted.) This exclusion defines “assault” as “[a] willful attempt or offer with force or violence to harm or hurt a person without the actual doing of the harm or hurt.” It defines “battery” as “[a]ny battering or beating inflicted on a person without his or her consent.” It defines “assault and battery” as specifically including “the ejection or exclusion with force or violence, or attempt thereof, of any person from the premises by the insured and his/her/ its employees or agents.”

Superior court’s order

The court granted insurer’s motion for summary judgment as to Count I of Hanlon’s and Karpew’s complaints, concluding that the assault and battery exclusion effectively bars coverage “as to any cause of action arising from the actual personal injuries constituting the assault and battery inflicted upon Hanlon and Karpew.”

The court also granted summary judgment to insurer as to coverage for intentional infliction of emotional harm (Count II of each complaint), and for punitive damages arising out of intentional infliction of emotional harm (Count II) and assault and battery (Count I), “but only while the personal injury was being inflicted.” The court ruled that questions concerning coverage for intentional infliction of emotional harm and punitive damages remain for jury resolution to the extent that they may have arisen after the personal injury was inflicted.

Additionally, the court ruled that left for this trial are questions as to coverage of defamation (Hanlon’s Count III and Karpew’s IV), false imprisonment (Karpew’s Count III), and punitive damages and intentional infliction of emotional harm arising therefrom.

Appeal

1. Appellants first enumerate as error the grant of summary judgment to insurer as to the assault and battery counts (I) of the complaints.

“An insurer’s duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy. [Cits.]” Batson-Cook Co. v. Aetna Ins. Co., 200 Ga. App. 571, 572 (409 SE2d 41) (1991); see Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609 (373 SE2d 671) (1988). “ ‘An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.’ . . . [Cit.]” Lofton v. State Farm &c. Ins. Co., 192 Ga. App. 154 (384 SE2d 245) (1989). The plain terms of an unambiguous policy must be given full effect even though they are beneficial to the insurer and detrimental to the insured. Liberty Nat. Ins. Co. v. Davis, 198 Ga. App. 343, 344 (401 SE2d 555) (1991).

The terms of A1 Who’s policy are not ambiguous. Compare State Farm &c. Ins. Co. v. Seeba, 209 Ga. App. 328 (433 SE2d 414) (1993). Coverages A and B impose a duty to defend only those suits seeking damages to which the insurance applies. Under the endorsement, the insurance does not apply to injury or property damage arising out of assault, battery, or assault and battery, as defined in the policy. Counts I seek damages for this very thing. Consequently, insurer has no duty to defend those claims. See Dynamic Cleaning Service v. First Financial Ins. Co., 208 Ga. App. 37 (430 SE2d 33) (1993) (physical precedent only).

2. The second enumeration is deemed abandoned in that it is not supported by argument or citation of authority. BCS Financial Corp. v. Sorbo, 213 Ga. App. 259, 261 (2) (444 SE2d 85) (1994). It relates to the court’s grant of partial summary judgment to insurer as to intentional infliction of emotional harm (Counts II) and the claims for punitive damages arising from Counts I and II.

3. Appellants’ third enumeration contends that the court erred twice: failing to consider the exception to the assault and battery exclusion for the use of reasonable force to protect persons or property; failing to allow the jury to determine the reasonableness of the force used by A1 Who’s agents.

The reasonable force exception applies to the exclusion in Coverage A for bodily injury or property damage expected or intended from the standpoint of the insured. See generally Ga. Farm Bureau Mut. Ins. Co. v. Hurley, 190 Ga. App. 546 (379 SE2d 420) (1989). There is no such exception to the more specific assault and battery exclusion in the endorsement, which expressly states that it modifies the policy. In fact, “assault and battery,” as defined in the endorsement exclusion, specifically includes the actual or attempted ejection or exclusion with force of any person from the premises by the insured and its agents and employees. Clearly, the reasonable force exception does not apply to the assault and battery exclusion. The policy is not ambiguous in this regard.

Decided May 10, 1995.

Self, 'Mullins, Robinson, Marchetti & Kamensky, Ronald W. Self, M. Peterson Robinson, for appellants.

Warren S. Shulman, Harp & Johnson, Gary L. Johnson, Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Leslie S. Sullivan, for appellee.

Judgment affirmed.

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

       The record does not establish whether Fleming or Al Who Enterprises, Inc. owns the nightclub, whether Fleming is sole owner of the corporation, or precisely what the relationship is among Fleming, the corporation, and the nightclub. The corporation is the named insured.


author: McMurray, Presiding Judge.

text:
    A95A0720.
    MAY v. THE STATE.
    (457 SE2d 694)
   McMurray, Presiding Judge.

Defendant May, represented by appointed appellate counsel, appeals his conviction of two counts of child molestation. Held:

We find no error in the trial court’s determination that defendant validly elected to proceed pro se after being fully apprised of his right to appointed counsel and of the dangers of proceeding without counsel. In addition to defendant’s appearance for trial, the record contains transcripts of the arraignment and of a motion hearing at which defendant was offered appointed counsel and warned of the hazards of proceeding without counsel. In each instance, defendant refused to accept appointed counsel and unequivocally voiced his choice to proceed pro se. The cumulative record shows that queries were made as to defendant’s reasons for proceeding pro se, whether he had ever seen a psychiatrist or psychologist, his ability to read and write, and his education and work background. He was informed of the possible sentence for the charges set out in the indictment and the hazards of proceeding without counsel were repeatedly discussed in detail. Defendant was repeatedly told in no uncertain terms that proceeding pro se was a bad idea and usually produced unfavorable results for a defendant. Although the trial court was aware of defendant’s repeated refusal to accept the services of an attorney, immediately prior to trial defendant was once more offered appointed counsel and advised of the advantages of having an attorney. Defendant steadfastly adhered to his decision to proceed pro se and the trial court noted for the record his finding that defendant had validly chosen to proceed pro se. Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49). Any deviation from the specific procedures established in Clarke v. Zant, supra, does not require reversal since the record clearly shows compliance with the substance of those procedures, particularly that defendant was made aware of his right to counsel and of the dangers of proceeding without counsel. Harris v. State, 196 Ga. App. 796 (1) (397 SE2d 68). See also Stevens v. State, 199 Ga. App. 563, 565-566 (405 SE2d 713) and Singleton v. State, 176 Ga. App. 733 (337 SE2d 350).

Decided May 10, 1995.

Darel C. Mitchell, for appellant.

Daniel J. Porter, District Attorney, Pamela D. South, Assistant District Attorney, for appellee.

Nor may the defendant establish error in the trial court’s allowing him to proceed pro se by showing issues which were not preserved for appellate consideration because he failed to raise timely motions or objections at trial. This of course is the very hazard of which defendant was repeatedly warned and the root cause of any harm therefrom arises not from the trial court but from defendant’s decision to exercise his right to represent himself at trial. It is impermissible to force counsel upon an accused who has validly waived counsel and elected to proceed pro se. Hayes v. State, 203 Ga. App. 143, 144 (2) (416 SE2d 347).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0835.
    TYSON v. THE STATE.
    (457 SE2d 690)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of the sole count of the indictment charging him with selling cocaine in violation of the Georgia Controlled Substances Act. His motion for new trial was denied and this appeal followed. Held:

1. In two related enumerations, defendant contends the trial court erred in giving and repeating an Allen (Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528)) charge. He argues that the charge given was coercive because “it could, and did, cause a juror to abandon an honest conviction for reasons other than the evidence at trial or the argument of other jurors.”

In Romine v. State, 256 Ga. 521 (1), 524 (1, b), 525 (350 SE2d 446), the Supreme Court of Georgia held as follows: “(1) Where a jury is unable to agree on a verdict, that disagreement is not itself a verdict; and (2) whether a jury is hopelessly deadlocked is an evaluation [committed] to the sound discretion of the trial court, subject to appellate review for an abuse of discretion.” We have reviewed the charge as first given and conclude that the language employed clearly conveyed the “cautionary instruction that the trial court was ‘certainly not asking, nor suggesting, that any person on (the) jury give up honestly held convictions.’ See Willingham v. State, 134 Ga. App. 603, 607 (5a) (215 SE2d 521) (1975).” Dortch v. State, 204 Ga. App. 822, 823 (3) (420 SE2d 778). Compare Riggins v. State, 226 Ga. 381, 383 (3), 384 (174 SE2d 908), where the trial court impermissibly referred to the two holdouts as being “unreasonable, stubborn. . . .’’In the case sub judice, there was no abuse of discretion in the giving of this instruction.

Despite further deliberations, the jury foreman announced that the vote “has not changed [; and that in his] opinion, we will not reach a verdict.” The trial court then reminded the jurors “Well, again, the Court would like for you to reach a verdict, again without anyone giving up honest opinions. Sometimes reflective Jurors will decide that they were wrong in their initial feeling about a case one way or the other and come to some conclusions. And that’s the Court’s only interest. I have no interest in forcing a verdict out of you. . . .” After this instruction, the trial court polled the jurors and found no one “absolutely opposed to any further deliberations[.]” Defendant argues this recharge also was coercive because it did not contain all the elements of a complete Allen charge.

“While the [trial] court has a duty to recharge any part of the charge at the request of the jury, Welch v. State, 251 Ga. 197 (304 SE2d 391) (1983), the extent and character of any supplementary instructions are within the discretion of the court. Taylor v. State, 169 Ga. App. 842 (315 SE2d 661) (1984).” Welch v. State, 257 Ga. 197, 198 (1) (357 SE2d 70). “ ‘([T])he decision as to the giving of such a charge does not depend on a finding that the jury is deadlocked. (Cit.)’ Sanders v. State, 257 Ga. 239, 243 (7) (357 SE2d 66) (1987). The charge given was a portion of the one approved in Romine v. State, 256 Ga. 521 (1), [supra].” Allen v. State, 260 Ga. 147, 148 (3b) (390 SE2d 848). Accord Hawkins v. State, 260 Ga. 138, 141 (10b) (390 SE2d 836). We find no abuse of discretion in the case sub judice. Stewart v. State, 210 Ga. App. 474, 476 (5) (436 SE2d 679).

2. After defining reasonable doubt, the trial court also gave the following instruction: “If after giving consideration to all the facts and circumstances of the case, your minds are waivering [sic], unsettled or unsatisfied, then that is the doubt of the law and you should acquit the Defendant. . . .” (Emphasis supplied.) In his third enumeration, defendant assigns error to the emphasized portion of this instruction. He contends this language is misleading and unconstitutional, arguing that the word “should” is “not commanding or authoritative. Instead, it is only directional and not instructional.”

(a) Although defendant waived his exceptions to the charge by failing to preserve them after direct inquiry by the trial court, we will review this enumeration pursuant to OCGA § 5-5-24 (c), since proof beyond a reasonable doubt is the “true question” involved in a criminal trial. OCGA § 24-4-5. See also OCGA § 16-1-5.

Decided May 10, 1995.

Wolfe & Steel, Brian E. Steel, for appellant.

Tommy K. Floyd, District Attorney, Kelley S. Powell, Assistant District Attorney, for appellee.

(b) The charge as a whole is the pattern charge from the Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, Part 2 (D), Suggested General Charges Required in All Criminal Cases (2d ed.) (1991) (revised July 1992), and does not contain the “moral and reasonable certainty” language disapproved of by the Supreme Court of Georgia in Vance v. State, 262 Ga. 236, 237 (2), 238, n. 5 (416 SE2d 516). In the instruction in the case sub judice, the term “should acquit” is language of command (see, e.g., Paradise v. State, 212 Ga. App. 166, 169 (4), 170 (4b) (441 SE2d 497)), in the event that the jury is not satisfied with the evidence adduced at trial. Defendant’s contention that this instruction is misleading and unconstitutional is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Pope, Presiding Judge.

text:
    A95A0528.
    THE STATE v. ADEBOGUN.
    (457 SE2d 699)
   Pope, Presiding Judge.

Defendant was charged with driving under the influence, driving with an unlawful alcohol concentration and failure to maintain his lane. The trial court granted defendant’s motion to suppress the results of a state-administered breath test, based on the arresting officer’s failure to advise defendant of his right to have an additional test administered by a qualified person of his own choosing, and the State appeals.

The State acknowledges this case is controlled by our recent decision in State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994) but, incorporating the arguments made in the State’s petition for certiorari in the Supreme Court, urges that Causey be overruled. However, on February 10, 1995, the Supreme Court denied the State’s petition for certiorari in Causey, and the State’s arguments do not convince us that Causey is unsound and should be overruled.

It is uncontroverted that the arresting officer in this case did not inform defendant of his right to an additional test administered by a qualified person of his own choosing. It follows that the trial court did not err in granting defendant’s motion to exclude the results of the state-administered breath test. State v. Harrison, 216 Ga. App. 325 (453 SE2d 820) (1995); State v. Hassett, 216 Ga. App. 114 (453 SE2d 508) (1995); Causey, 215 Ga. App. at 86.

Decided May 11, 1995.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant.

Clifton S. Fuller, Jr., Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellee.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A95A1166.
    THE STATE v. CARRANZA.
    (457 SE2d 699)
   Blackburn, Judge.

The State appeals the trial court’s order which granted defendant Miguel Carranza a/k/a Miguel Carranza Fonnacco’s motion to suppress his statement and motion to suppress evidence. We reverse.

In the present case, the trial court granted Carranza’s motions based on the police officers’ failure to obtain a warrant for his arrest or for the search of his trailer. Agent Craig Covert, with the United States Immigration Service, testified during the motion to suppress hearing that the Colquitt County Sheriff’s Department contacted his office for assistance in an investigation of an illegal alien who was suspected of selling fraudulent green cards and social security cards. As a result of this contact, Agent Covert went to Colquitt County and used an informant to investigate Carranza. The informant wore a hidden microphone during a meeting in Carranza’s trailer where Carranza agreed to sell the informant a green card and a social security card. Upon hearing the prearranged signal, Agent Covert and several Colquitt County police officers entered the premises and arrested Carranza.

Agent Covert testified that the police entered the premises without a warrant because they had probable cause to believe a felony had been committed therein. Investigator Jolley, with the Colquitt County Sheriff’s Department, testified he knew that illegal documentation could be purchased from someone in the trailer park; he just did not know it was through Carranza.

“ ‘An arrest for a crime may be made by a law enforcement officer . . . without a warrant if the offense is committed in his presence or within his immediate knowledge, ... or for other cause if there is likely to be (a) failure of justice for want of a judicial officer to issue a warrant.’ OCGA § 17-4-20 (a). (Emphasis supplied.) The words ‘in his presence’ and ‘within his immediate knowledge’ are synonymous, and to justify the arrest without a warrant, the officer need not see the act which constitutes the crime taking place if by any of his senses he has personal knowledge of its commission. Lynn v. State, 130 Ga. App. 646 (1) (204 SE2d 346) (1974); King v. State, 161 Ga. App. 382, 383 (1) (288 SE2d 644) (1982). A valid search without a warrant may be made incident to a lawful arrest or under exigent circumstances when supported by probable cause. Smith v. State, 135 Ga. App. 424 (218 SE2d 133) (1975).” Marsh v. State, 182 Ga. App. 892, 893-894 (357 SE2d 325) (1987).

Decided May 11, 1995

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellant.

May & Horkan, Dwight H. May, James M. Bivins, for appellee.

The officers had personal knowledge of a crime being committed by the informant’s use of the prearranged signal words and, therefore, their arrest of Carranza was proper. Thereafter, the documents were voluntarily given to the officers by Araceli Pena, a resident in the mobile home. Furthermore, Carranza was properly advised of his rights, and his statement was voluntarily given.

Judgment reversed.

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


text:
    A95A0235.
    LACKEY v. CRITTENDEN.
    (457 SE2d 701)
   McMurray, Presiding Judge.

Plaintiff Jan Michile Crittenden brought this tort action against defendant Deborah Kay Lackey for personal injuries arising out of a vehicular mishap that allegedly took place on May 17, 1991. Defendant was personally served on May 28, 1993, with the summons indicating that the complaint in Civil Action Number 93A-73311 was filed in the State Court of DeKalb County, Georgia, on May 19, 1993. Defendant answered and immediately moved for summary judgment based upon the two-year statute of limitation for personal injuries established at OCGA § 9-3-33.

Plaintiff opposed the motion with the unsworn statement of her counsel who recited that, on April 15, 1993, counsel was diagnosed as having terminal cancer requiring emergency surgery; on April 20, 1993, counsel mailed the complaint, filing fees, cover sheets and entry of service, to the Clerk of the DeKalb State Court with adequate postage to assure delivery; on May 3, 1993, counsel underwent emergency surgery and was advised that the cancer had metastasized to his liver and lymph system, requiring chemotherapy; on May 19, 1993, counsel went to the DeKalb County Courthouse, where he “was told for an unknown and/or unexplained reason, the complaint sent by mail on April 20, 1993,. . . was not recorded on file, and may have been lost in the courthouse or the mail”; at which point, counsel filed another complaint which was “given the file number 93A-73311-1[.]” Plaintiff argued that counsel’s physical incapacity arising from the debilitating disease (and treatment) coupled with his attempt at timely filing by mail (lost by the postal service or the clerk) “rises to the level of excusable neglect,” which operated to extend the statute of limitation.

Decided May 12, 1995.

Murray & Temple, Gregg P. Counts, John C. McCaffery, for appellant.

The trial court initially granted defendant’s motion for summary judgment, but subsequently granted plaintiff’s motion to set that judgment aside and entered an order denying defendant’s motion for summary judgment. However, the trial court timely certified that order for immediate review. Defendant’s application for interlocutory appeal was granted and a timely notice of appeal was filed. Held:

“A civil action is commenced by filing a complaint with the court.” OCGA § 9-11-3. “[A]n action brought on [May 19,1993], seeking to recover damages for injuries to the person alleged to have been sustained on [May 17, 1991], is barred by the statute of [limitation], which requires such actions to be brought within two years after the right of action accrues. [Cits.]” Dowling v. Lester, 74 Ga. App. 290, 292 (1) (39 SE2d 576). The tragic circumstances of counsel’s terminal cancer do not operate to extend the applicable two-year time limit established by OCGA § 9-3-33 under a theory of “excusable neglect.” Nor do these unfortunate events invoke the provisions of OCGA § 9-3-91, which by its express terms apply personally to the party with the “right of action.” “This court has made no exceptions to the rule where the untimeliness is allegedly attributable ... to the illness or even death of counsel, Wren v. Josey, 97 Ga. App. 593, 594 (103 SE2d 745) (1958)[.]” Banks v. Green, 205 Ga. App. 589 (423 SE2d 31). See also Farmers & Traders Nat. Bank v. Willis, 122 Ga. 563 (50 SE 366). In the case sub judice, the trial court erred in denying defendant’s motion for summary judgment based upon the undisputed running of the statute of limitation.

Judgment reversed.

Andrews and Blackburn, JJ., concur.

Levine & Plumides, Mark W. Levine, George M. Plumides, for appellee.


text:
    A95A0513.
    EWERS v. COOPER et al.
    (457 SE2d 705)
   Pope, Presiding Judge.

Plaintiff Mark Ewers purchased a home from defendants Jeffrey Cooper and Joanne Williams Cooper in 1987. Plaintiff did not have a survey done, but instead relied on a survey commissioned by defendants in 1984. The 1984 survey showed that the house was very close to a pipeline easement running along the back of the property, but it did not show any encroachment. In 1991, plaintiff attempted to sell the property. The prospective purchaser had another survey done, and that survey showed that a small section of the house did encroach upon the easement. Plaintiff’s purchaser was unable to get financing because of the encroachment, and the sale was not consummated. Plaintiff then brought this action for breach of warranty and moved for summary judgment. The trial court denied plaintiff’s motion, concluding that the conflicting surveys created a question of fact regarding the existence of an encroachment. We granted plaintiff’s application for interlocutory appeal and now affirm.

Plaintiff argues that defendants should be estopped from relying on the 1984 survey because they brought a third-party complaint against their surveyors and filed an OCGA § 9-11-9.1 affidavit in which an expert opines that the 1984 survey was incorrect and the surveyors were negligent. At first blush, plaintiff’s argument has appeal. However, the legislature has expressly permitted inconsistency in pleadings. See OCGA § 9-11-8 (e) (2). Indeed, the very nature of third-party practice assures some degree of inconsistency, since the defendant will generally be in the position of saying that he is not liable to the plaintiff on the main claim, but if he is liable, the third-party defendant is responsible for all or part of that liability. See OCGA § 9-11-14.

The policy underlying third-party practice is found in OCGA § 9-11-1, which provides that “[t]his chapter shall be construed to secure the just, speedy, and inexpensive determination of every action.” “In expounding this policy, our courts have held that the impleader provisions are to be liberally construed to avoid multiplicity of actions, to save time and cost of reduplication of evidence and to assure consistent results from similar evidence and common issues. [Cits.]” McMichael v. Ga. Power Co., 133 Ga. App. 593, 594-595 (211 SE2d 632) (1974). To promote these goals, we allow inconsistencies in pleading, and this rule applies even when an affidavit must be filed to fulfill statutory pleading requirements. Otherwise, a defendant in the position of defendants in this case would be forced to either give up his third-party claim or compromise his defense in the main action.

Decided May 12, 1995.

Chambers, Mabry, McClelland & Brooks, E. Speer Mabry III, Edwin L. Hamilton, R. Michael Malcom, for appellant.

Johnson & Freeman, Horace J. Johnson, Jr., Fortson, Bentley & Griffin, Ernest DePascale, Jr., for appellees.

The expert affidavit filed pursuant to OCGA § 9-11-9.1 does not conclusively establish the existence of the encroachment any more than it conclusively establishes the negligence of the surveyors; rather, it merely serves to show that allegations that the 1984 survey was incorrect and that the surveyors were negligent are not frivolous. Cf. 0-1 Doctors &c. Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989) (purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits, not to establish a prima facie case entitling plaintiff to recover).

Plaintiff’s reliance on Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1) (343 SE2d 680) (1986) is also unavailing. In Prophecy, the Supreme Court held that the testimony of a party must be construed against him when it is self-contradictory. The expert’s affidavit is not the testimony of a party, and the fact that defendants filed the affidavit to satisfy a statutory filing requirement does not make it their testimony.

For these reasons, the trial court properly refused to disregard the 1984 survey and correctly denied plaintiff’s motion for summary judgment.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0698.
    DUITSMAN v. THE STATE.
    (457 SE2d 702)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty on two counts of aggravated assault upon a law enforcement officer and two counts of felony obstruction of a law enforcement officer. The judgment of defendant’s convictions and sentences was affirmed in Duitsman v. State, 212 Ga. App. 348 (441 SE2d 888), and the case was remanded to the trial court for a hearing on defendant’s claim of ineffective assistance of trial counsel. Id. at 350 (4).

“[Defendant lived with his wife and two children in an old bus next to his brother’s trailer. Defendant’s sister-in-law summoned the police to break up a domestic disturbance between defendant and his wife. Captain Lowe and Deputy Fortner of the Lumpkin County Sheriffs Department responded. Deputy Fortner was in uniform, and the officers arrived in a marked sheriff’s vehicle. As the officers approached, defendant was exiting his brother’s trailer, ‘manhandling the wife . . . and children, pushing them towards the bus.’ A child cried out ‘He’s got a gun!’ Deputy Fortner ordered defendant to halt and said that they needed to speak with him. Defendant twice refused Fortner’s command to halt and then entered the bus. When the officers asked defendant to come out and talk to them, he refused to come out, shouting, ‘If you want me, you’re going to have to come in and get me!’ Captain Lowe shined a flashlight into the bus and saw defendant pointing a pistol at Deputy Fortner. Fortner also saw defendant point the pistol. Defendant then swung around and pointed the gun at Captain Lowe. Deputy Fortner kicked in the folding door of the bus and tackled defendant. They scuffled, during which time defendant kicked Captain Lowe in the hand, causing a severe sprain. Defendant continued to resist until he was forcibly subdued and handcuffed.” Duitsman v. State, 212 Ga. App. 348 (1), supra.

This appeal followed denial of defendant’s motion for new trial based upon his claim of ineffective assistance of trial counsel. Held:

1. Defendant contends his trial attorney ineffectively prepared his case for trial by failing to interview the State’s witnesses before trial and by failing to obtain (or request) a fingerprint analysis of the handgun defendant purportedly used during commission of the crimes charged. Defendant also contends his trial attorney ineffectively refused to call an eyewitness (13-year-old Eric Beard) who would have testified that defendant did not commit the acts which form the basis of the crimes charged.

“[T]he burden was on [defendant] to establish that he received ineffective assistance of trial counsel. Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360) (1993). To meet this burden, [defendant] was required to show not only that trial counsel’s performance was deficient, but also that, absent trial counsel’s deficient performance, there is a reasonable likelihood that the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Hayes v. State, 263 Ga. 15 (426 SE2d 557) (1993).” White v. State, 265 Ga. 22 (1) (453 SE2d 6). Moreover, the “trial court’s finding that. . . defendant [was] not. . . denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484).

In the case sub judice, defendant failed to show that the outcome of his trial would have been different had defense counsel interviewed the State’s witnesses before trial. In fact, the evidence adduced at the hearing on defendant’s motion for new trial reveals that defendant’s trial attorney reviewed reports and summaries in the State’s file before trial, thereby giving him a full understanding of the evidence the State would rely on to prove its case. Under these circumstances, we cannot say defense counsel performed deficiently in failing to interview the State’s witnesses before trial. Further, defendant failed to proffer evidence that a fingerprint analysis of the handgun purportedly used by defendant during commission of the crimes charged would have materially aided in his defense. Defendant merely postulates that such an analysis would have been exculpatory “if no fingerprints were found.” Such speculation is insufficient to authorize a finding that defense counsel ineffectively overlooked evidence which would have resulted in defendant’s acquittal. See Randall v. State, 207 Ga. App. 637, 639 (3), 641 (428 SE2d 616). Finally, defendant failed to question his trial attorney at the motion for new trial hearing regarding the reasons for not calling 13-year-old Eric Beard as a defense witness. “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). Consequently, in the absence of evidence regarding defense counsel’s “strategic” reasons for not calling Eric Beard as a defense witness and in light of evidence indicating that Eric Beard’s testimony would have been cumulative of other eyewitness testimony offered by the defense at trial, we find no abuse of discretion in the trial court’s (apparent) rejection of defendant’s claim that Eric Beard’s testimony would have changed the outcome of trial.

2. Next, defendant asserts that his trial attorney was ineffective in failing to file a motion to suppress the handgun defendant purportedly used during commission of the crimes charged. Defendant argues that this weapon should have been suppressed because it was seized during a warrantless search of his home. This argument is without merit.

“When urging ineffective assistance of counsel on the basis of counsel’s failure to file a motion to suppress, [a defendant] must ‘make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed. (Cits.)’ Rubiano v. State, 147 Ga. App. 142, 144 (248 SE2d 207) (1978).” Ruffin v. State, 201 Ga. App. 792 (2a), 793 (412 SE2d 850). In the case sub judice, defendant’s handgun was not seized pursuant to a warrantless search of his home as alleged by defendant. The weapon was seized immediately after law enforcement officers entered defendant’s home to execute a lawful arrest. Duitsman v. State, 212 Ga. App. 348 (1), 349, supra. “In exigent circumstances police officers are authorized, pursuant to a lawful arrest, to enter premises and conduct a search. State v. Camp, 175 Ga. App. 591, 594 (2) (333 SE2d 896) (1985).” Merriman v. State, 201 Ga. App. 817 (1), 821 (412 SE2d 598). In light of the exigent circumstances in the case sub judice authorizing entry of law enforcement officers into defendant’s home to make a lawful arrest, it appears unlikely that a motion to suppress would have resulted in exclusion of defendant’s handgun from evidence at trial. Consequently, defense counsel’s decision not to file a motion to suppress the handgun seized from defendant’s home at the time of defendant’s arrest does not (as a matter of law) constitute ineffective assistance of counsel. See Ruffin v. State, 201 Ga. App. 792 (2a), 793, supra.

Decided May 12, 1995.

John R. Burdges, for appellant.

C. David Turk III, District Attorney, Mark E. Moore, Albert F. Taylor, Jr., Assistant District Attorneys, for appellee.

3. In his final enumeration of error, defendant claims his trial attorney ineffectively failed to communicate a plea bargain offered by the State before trial. This contention is not supported by the record. It is undisputed that defendant’s trial attorney advised defendant before trial of the State’s offer to recommend a sentence of five years to serve in confinement in exchange for defendant’s pleas of guilty to the crimes charged. Further, defendant’s trial attorney testified at the motion for new trial hearing that defendant rejected the State’s plea bargain with full knowledge of the consequences of proceeding to trial. The fact that defense counsel advised defendant not to accept the State’s offer for a negotiated plea was tactical advice (based on an assessment of conflicting evidence) which provides no basis for a claim of ineffective assistance of counsel. See Lloyd v. State, 258 Ga. 645, 646 (2) (373 SE2d 1).

The trial court did not abuse its discretion in denying defendant’s motion for new trial based on defendant’s claim of ineffective assistance of counsel. See Warren v. State, 197 Ga. App. 23, 24 (1), supra.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A95A0329.
    NADEW v. ALEMU.
    (457 SE2d 709)
   Johnson, Judge.

Can a co-defendant in a civil case admit in his answer that he resides in the county where the trial court is located and that the trial court is the proper venue, fail to make a timely motion to withdraw those admissions, yet be entitled as a matter of law to have the case transferred to another county following the grant of a directed verdict in favor of his co-defendant on the ground that venue is no longer proper because, in spite of his admission to the contrary, he was actually a resident of that other county at the time he was served? We hold that he is not entitled to the transfer because he is bound by his admission regarding residence.

Alemu, while riding in a car driven by Nadew, was injured when the car collided with Walker’s car. Alemu sued Nadew and Walker in Fulton County Superior Court. It is undisputed that, as alleged in Alemu’s complaint, Walker was a resident of Fulton County. Paragraph 2 of Alemu’s complaint also alleged that Nadew “is a resident of Fulton County, Georgia and subject to the jurisdiction and venue of this Honorable Court. . . .” In his answer to the complaint, Nadew said: “Responding to Paragraph 2, Defendant admits the allegations contained therein.” The case proceeded to trial. At the close of Alemu’s case, Walker was granted a directed verdict. Nadew’s counsel immediately moved that the case be transferred to DeKalb County. He asserted for the first time that he had discovered during trial that Nadew’s residence at the time the lawsuit was served was actually in DeKalb County, and that Nadew had been in error when he admitted he was a resident of Fulton County. The trial court denied the motion to transfer. The trial went forward to completion and resulted in a verdict in favor of Alemu and against Nadew in the amount of $120,000. This verdict was made the judgment of the court below.

Nadew appeals, claiming the court erred in denying his motion to transfer. This claim is without merit. In analyzing Nadew’s claim, we emphasize that Nadew admitted three distinct facts in the portion of his answer responding to paragraph 2 of Alemu’s complaint. First, and critical to this appeal, he admitted that he was a resident of Fulton County. Second, he admitted that the trial court could properly exercise personal jurisdiction over him, i.e., that he had been properly served and was subject to the court’s jurisdiction. Third, he admitted that venue for this action was proper in Fulton County. There being no issue in the case concerning jurisdiction, we will address only the legal significance of the other two admissions.

In a case with multiple defendants, venue is proper in any county where any one of the defendants resides. Ga. Const, of 1983, Art. VI, Sec. II, Par. IV. In such a case, a non-resident co-defendant who asserts his county of residence in his answer may admit that the trial court is the proper venue without waiving the right to challenge venue later if the resident co-defendant is dismissed from the case. There is no waiver in that instance because the earliest a defense of improper venue can be properly raised by the non-resident defendant is when the resident defendant has been adjudged not liable to the plaintiff and is dismissed from the case. See Evans v. Garrett, 72 Ga. App. 846 (35 SE2d 387) (1945); see also Taylor v. Career Concepts, 184 Ga. App. 551, 552 (362 SE2d 128) (1987).

Contrary to Nadew’s argument this is not such a case in which there was no waiver of the right to challenge venue by the non-resident co-defendant. It would be such a case if Nadew had asserted in his answer that he was a resident of DeKalb County. He then could have admitted venue, based on Walker’s residence in Fulton County, without being barred from raising his improper venue defense when Walker’s directed verdict motion was granted. Under those circumstances, Nadew would have been entitled as a matter of law to have the case transferred. See Long v. Bruner, 171 Ga. App. 124, 125 (318 SE2d 818) (1984). Nadew, however, never properly stated in his pleadings that he is a DeKalb County resident. Rather, he admitted in judicio that he resides in Fulton County. Thus, for purposes of this case, Nadew was a resident of Fulton County. In fact, because of this admission, venue would have been proper in Fulton County even if Nadew was the sole defendant from the outset of the case.

Even though Nadew’s admission as to his county of residence was erroneous, Alemu was entitled to rely upon the admission until it was properly withdrawn. But Nadew never made a timely request to withdraw the admission. He did not raise the venue issue in any pre-trial pleading or discussion. Even when Nadew finally raised the issue, he did not expressly move to be allowed to withdraw the admission, though such a request can be inferred from the colloquy between his counsel and the court during his motion to transfer the case to DeKalb County.

Nadew argues that well before trial Alemu’s counsel was aware of facts which cast doubt on the accuracy of Nadew’s admission that he resides in Fulton County. This may be true and yet remain a matter of no legal consequence. Nadew was in the best possible position to know both his county of residence and what strategies might be involved in a decision to waive venue or other available affirmative defenses. When he made an admission in his pleadings, Alemu was not required to look behind that admission even if there was information to suggest that it should not have been made. The policy reflected in the law is so strongly in favor of allowing other parties to rely upon the admissions that the party making the admission is not even allowed to introduce evidence at trial to prove the admission is erroneous until the admission has been properly withdrawn. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 519 (1) (434 SE2d 63) (1993); see also Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189, 191 (2) (c) (397 SE2d 746) (1990). Further, whether to allow a party to withdraw an admission in his pleadings is a matter which rests within the sound discretion of the trial judge. See Walker, supra at 520 (1).

Decided May 16, 1995.

Crim & Bassler, Joseph M. Murphey, Kimberly L. Schwartz, for appellant.

Joe A. Weeks, Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellee.

The soundness of the trial judge’s decision to deny Nadew’s motion to transfer, which, in effect, was also a ruling that the admission could not be withdrawn, is readily apparent in this case. The record shows that it became apparent during discovery that Nadew was more at fault than Walker in the accident from which the lawsuit arose. The possibility that Walker might be granted a directed verdict was far from remote. Had Nadew not admitted that he was a resident of Fulton County, Alemu would have been required to confront the likely possibility that he would lose venue in Fulton County if Walker prevailed. See Long, supra. Under that circumstance, Alemu could have protected the investment of time and money which went into the preparation of the case by requesting that the case be transferred to DeKalb County before trial. Because Nadew admitted he was a resident of Fulton County, thus providing an independent basis upon which venue was appropriate, Alemu could proceed to trial without concern that the case would have to be tried a second time in a different county should Walker receive a directed verdict. Because Nadew did not even suggest that his admission was erroneous until after the trial had been commenced and had progressed far enough for Alemu to present his entire case, it would have been an abuse of discretion for the trial court to allow Nadew to withdraw the admission. On the contrary, because Nadew did not timely move to withdraw his admission in the pleadings that he was a resident of Fulton County, the trial court correctly denied Nadew’s motion to transfer the case based upon the suggestion of improper venue.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A0330.
    A95A0331.
    BROOKS et al. v. DIME SAVINGS BANK OF NEW YORK, FSB et al. SELLERS et al. v. BROOKS et al.
    (457 SE2d 706)
   Pope, Presiding Judge.

Plaintiffs Suzanne Brooks, Janet Eagan, Frank and Nancy Gal-van, Brien Silva and Jeff Provissiero purchased homes in 1987 or 1988. Each had their home appraised in 1990 and discovered that it was worth less than they thought. Alleging fraud, they sued (among others) the lender, Dime- Savings Bank of New York, FSB and Dime Mortgage Company, Inc. (collectively referred to herein as “Dime”); the lender’s closing attorney, Michael Sellers and Sellers, Atkinson & Jose, P. C. (collectively referred to herein as “Sellers”); and a realtor who showed two of the plaintiffs their homes, Fred Espy and Re/Max Atlanta Realty Association, Inc. (collectively referred to herein as “Espy”). The trial court granted summary judgment for these defendants, and plaintiffs appeal this grant of summary judgment in Case No. A95A0330. In Case No. A95A0331, defendant Sellers cross-appeals the trial court’s denial of its motion to strike the affidavit of Robert Robertson. Because plaintiffs failed to present evidence of damages, we affirm the judgment in Case No. A95A0330 and dismiss Case No. A95A0331 as moot.

Viewing the evidence in a light most favorable to plaintiffs, it appears that Robert Robertson, a developer, conspired with others to artificially inflate the sales price of new homes. The conspirators accomplished this by setting up a straw man purchase of the home at a higher-than-market price, with an assumable, non-qualifying mortgage from Dime. Prospective purchasers were then given the settlement statement showing the purchase price from the prior sale; some of the purchasers were shown prior appraisals as well. Purchasers generally bought the homes for considerably less than the contract price in the prior sale, by assuming the outstanding mortgage and making a small down payment.

Each of the plaintiffs except Eagan bought their homes in transactions fitting this pattern. Unlike the others, Eagan bought her home directly from the developer; but like the others, she later discovered her home was not worth as much as she thought. For purposes of this appeal, we assume that Robertson’s co-conspirators included Espy, Sellers and agents of Dime.

Case No. A95A0330

1. In order to establish actionable fraud, plaintiffs must show that they have been damaged by the allegedly fraudulent misrepresentation: “Fraud without damage, or damage without fraud, gives no cause of action, but when these two concur an action lies.” (Citations and punctuation omitted.) Stovall Tire &c. v. Prance Body &c. Works, 179 Ga. App. 483, 484 (347 SE2d 313) (1986); see also Glynn County &c. Credit Union v. Peagler, 256 Ga. 342 (2) (348 SE2d 628) (1986); OCGA § 51-6-1. Moreover, plaintiffs must establish the amount of their damages by providing the factfinder with evidence from which it can calculate the amount of the loss with reasonable certainty, as “[t]he question of damages cannot be left to speculation, conjecture and guesswork.” (Citations and punctuation omitted.) Stovall, supra at 484.

Decided May 16, 1995

Doffermyre, Shields, Canfield & Knowles, Ralph I. Knowles, Jr., R. Hutton Brown III, for Brooks.

Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, Mary L. Hahn, for Sellers.

In this case, the appropriate measure of plaintiffs’ loss would be the difference between what they paid for their properties and what those properties were worth at the time of purchase. Yet plaintiffs have no evidence of what their homes were actually worth at the time of purchase. Instead, they have appraisals from more than a year later, without any expert testimony describing fluctuations in the market and explaining how the factfinder can use the later appraisals to estimate value at the earlier point in time. Cf. Kieffer v. Linton, 196 Ga. App. 327 (2) (396 SE2d 13) (1990). And contrary to plaintiffs’ assertion, Robertson’s affidavit is not evidence of damages. That affidavit provides evidence of the general existence of a scheme to inflate the price of homes, but it does not address whether or to what extent the specific transactions at issue here involved inflated prices.

Indeed, the evidence presented suggests they did not. The one plaintiff who looked at recent sales of comparable homes in the area before she purchased her home found that the purchase price of her home was in line with the market at that time. (Some of the comparable homes may have been other properties whose prices were inflated due to the alleged scheme at issue in this case, but some were definitely not.) Another plaintiff consulted a real estate attorney, who also said that the purchase price sounded reasonable for the area. Plaintiffs liked their homes and were basically happy and satisfied with them until they tried to refinance or until they read about the alleged scheme to inflate prices in an attorney’s newspaper ad.

Without evidence of even the approximate worth of their homes at the time of purchase, plaintiffs cannot show the existence of damage, much less its extent, with any degree of certainty. Thus, summary judgment was properly granted on this ground.

2. In light of our conclusion in Division 1, we need not address plaintiffs’ enumerations addressing the alternative grounds on which the trial court’s grant of summary judgment was based.

Case No. A95A0331

3. Defendant Sellers’ cross-appeal is dismissed as moot.

Judgment affirmed in Case No. A95A0330. Appeal dismissed in Case No. A95A0331.

Beasley, C. J., and Ruffin, J., concur.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, for Dime Savings Bank.


author: Birdsong, Presiding Judge.

text:
    A95A0377.
    WALLACE v. LAUGHLIN.
    (459 SE2d 556)
   Birdsong, Presiding Judge.

On February 1, 1994, the juvenile court dismissed this petition for modification of child custody for failure to prosecute and awarded attorney fees and costs to defendant Donna Laughlin f/k/a Donna Wallace. The trial court denied appellant’s motion to set aside and motion to reconsider. We then granted appellant’s application for discretionary appeal.

The record is not chronologically compiled according to acceptable form. In the circumstances of this case, however, we have elected to review it. The record shows this case was actively prosecuted by appellant Paul Wallace. He filed his petition on April 28, 1993, alleging, as material changes in circumstances, refusals of visitation rights by Laughlin, a pattern of harassment of him at his workplace wherein Laughlin would leave “irrational, vile, and often times obscene messages about [Wallace] and his wife at the business where they both work, including threats to kill [Wallace’s] wife.” Laughlin filed an answer and counterclaim and amended her counterclaim on November 9,1993. The parties embarked on discovery and the attorneys conducted correspondence to resolve the parties’ ongoing personal disputes, including Laughlin’s repeated calls to Wallace’s employer’s “800” telephone number which provoked the employer and appellant to seek a restraining order against Laughlin, her alleged threats to commit suicide, and her denials of visitation.

On November 9, 1993, Judge Hearn, sitting as the trial court, set the case for trial on February 1, 1994. On November 11, 1993, appellant Paul Wallace’s attorney filed a motion to require the parties to submit to psychological evaluations. On November 15, 1993, Judge Hearn signed an order requiring a certain psychologist to submit a comprehensive report of his findings and recommendations to the court. It appeared the psychological evaluations could not be scheduled by the psychologist until after the scheduled date for trial. On December 3, 1993, Wallace’s attorney corresponded with Laughlin’s attorney about this conflict. On January 12, 1994, Wallace’s attorney inquired of the court whether a continuance had been granted. The trial court’s clerk responded on January 21, 1994, that no motion for continuance had been filed with the court but the court would entertain such motion, “especially if these appointments need to be completed before the hearing. The hearing is on the court’s calendar for Tuesday, February 1, 1994.” On January 28, 1994, Laughlin’s attorney filed a motion to modify the order requiring psychological examinations, asserting the right to cross-examine or depose the psychologist at the hearing. On January 28, 1994, Laughlin’s attorney filed a request for production of documents. On February 1, 1994, Judge Costley, sitting for Judge Hearn, called the calendar and dismissed appellant’s petition because neither he nor his attorney was present.

In his motion to set aside, Wallace showed that at the pretrial conference held by Judge Hearn in November 1993 and at the time he ordered psychological evaluations, Judge Hearn acknowledged that scheduling of the evaluations might require the case to be heard after February 1, 1994; that Judge Hearn subsequently advised the attorneys that the case would not be heard on February 1; and that the attorneys were advised by the clerk to wait for further instructions from the court. On February 1, 1994, the court clerk called Wallace’s attorney, who advised the clerk that Judge Hearn had given a continuance. The attorney was then informed that Judge Hearn had suffered a stroke. Without Wallace’s having an opportunity to be heard, his case was dismissed. Held:

1. Appellee’s motion to dismiss the appeal is denied.

2. The record shows the February 1, 1994, hearing date had been set prior to the time the presiding judge, Judge Hearn, ordered the parties to submit to psychological evaluations. There is no evidence appellant’s attorney was lax or lackadaisical about his responsibilities to attend court, and his prior diligence in attending to the case gives no reason to conclude he would knowingly or negligently fail to appear when he was expected. At worst, the record, judged from its own state of disorder, shows miscommunication and well-founded misunderstanding, compounded by the incapacitating illness of the trial judge familiar with the case. While Laughlin’s attorney asserts that there is “no written documentation or any documentation at all to indicate that the case would be continued until after the February 1, 1994 calendar,” he does not contend Wallace’s attorney is untruthful in asserting his belief that a continuance had been given, nor does he assert that the substituting judge had ruled that he would proceed on a hearing without the psychological evaluation ordered by the trial judge who was familiar with the case. Particularly in so important a case as this, where the rights and well-being of the parties’ children are at stake and the merits of the case deserve to be heard, it would subvert substance to form to dismiss the petition when appellant had prosecuted it diligently until the last misstep. The trial court abused its discretion in dismissing this case. See OCGA § 9-11-41 (b); Mosley v. Lankford, 244 Ga. 409 (260 SE2d 322); Hancock v. Oates, 244 Ga. 175 (259 SE2d 437); see also Maolud v. Keller, 153 Ga. App. 268 (265 SE2d 86).

Decided May 17, 1995.

Larry L. Duttweiler, for appellant.

Stephen L. Noel, for appellee.

Appellant’s petition having been erroneously dismissed, it follows that the grant of attorney fees and costs to the opposing party must be vacated.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A1017.
    CRAWFORD v. SPENCER et al.
    (457 SE2d 711)
   Birdsong, Presiding Judge.

Appellant William T. Crawford appeals from the order of the trial court granting summary judgment to appellees Charles L. Spencer, M.D., Charles L. Spencer, M.D., P.C., Alma F. Jenkins, M.D., and Alma F. Jenkins, M.D., P.C.

Appellee Dr. Spencer was appellant’s primary care physician. Dr. Spencer is alleged to have repetitively prescribed a non-steroidal, anti-inflammatory drug, Feldene, for appellant who was being treated for diabetes, hypertension and arthritis. Feldene commonly is used to treat patients with arthritis, but medical indicators apparently exist that it should not be prescribed for patients with peptic ulcers.

Medical records entries by an associate of appellee Spencer make reference to appellant’s taking Feldene as early as May 18, 1990, and reflect that a refill for Feldene was prescribed for appellant on August 22, 1990. Although the evidence is in conflict whether appellee Spencer or an associate ordered a change in appellant’s medication from Motrin to Feldene, appellant nonetheless was continued on the drug after Dr. Spencer became aware appellant was taking that medication. Evidence of record shows that appellee Spencer became aware of appellant’s taking of Feldene in November or early December 1990; at that time, appellant complained of heartburn relieved by Mylanta or Pepto Bismol. On January 31, 1991, appellant complained to Dr. Spencer that he had developed a burning in his chest and stomach; Dr. Spencer suspected the existence of an ulcer and ordered x-rays. The x-rays confirmed the existence of an ulcer, and Dr. Spencer referred appellant to appellee Dr. Jenkins who practices in the area of gastroenterology. On February 18, 1991, Dr. Jenkins examined appellant and confirmed the existence of the ulcer; appellant was advised he had an ulcer on that date. After being informed that appellant was taking medication, which included Feldene, Dr. Jenkins prescribed Carafate and Zantac for the treatment of appellant’s ulcer. Appellant resumed his regular scheduled appointments with Dr. Spencer; Dr. Jenkins remained associated as a case consultant. Although appellant continued to complain to Dr. Spencer regarding the stomach pain, he was not told to cease taking Feldene. On or about July 18, 1991, about one month after appellant began to suffer from both stomach pain, nausea, and sleep loss; being unable to contact Dr. Spencer, he transported himself to a local medical emergency center. The physician on duty advised appellant immediately to discontinue use of Feldene as that drug should not be taken with a peptic ulcer. On July 22, 1991, appellant consulted an internal medicine physician who immediately admitted appellant into the hospital and informed him to discontinue his use of Feldene. Apparently, following release from the hospital and until February 1992, appellant received treatment and care from Dr. Jenkins. Appellant filed suit, on July 16, 1993, for various causes of action, including malpractice, negligent infliction of emotional distress and abandonment.

Appellant enumerates the following errors: “The trial court erred in not properly classifying this medical malpractice case as a continuing tort and concluding that the date of injury was as early as February, 1991 and as late as June 18, 1991, as opposed to the date of [appellant/plaintiff’s] discovery of injury upon his hospitalization on July 18, 1991” and “in finding that [appellant/plaintiff] failed to file his lawsuit within the statute of limitations pursuant to OCGA § 9-3-71 (a).” Held:

1. Appellee Spencer’s motion to dismiss the appeal for failure of appellant to comply with Court of Appeals Rule 27 (c) (3) (i) is denied. This court has accepted appellant’s supplemental brief which contains citations to the record. Compare Petkas v. Grizzard, 253 Ga. 407, 408 (321 SE2d 323). Appellant has attached certain documentary exhibits to his brief; a record cannot be enlarged by an attachment to an appellate brief, and such evidence will not be considered except to the extent it also is a legitimate part of the official trial record. See Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33); Johnson v. Wade, 184 Ga. App. 675, 676 (362 SE2d 469).

2. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

3. OCGA § 9-3-71 (a) provides: “Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”

Appellant correctly contends that this is not an action for medical malpractice based on a misdiagnosis. However, an action for medical malpractice, within the meaning of OCGA § 9-3-71 (a), includes any claim from damages arising from the death of or injury to any person arising out of “[h]ealth, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized personf.]” OCGA § 9-3-70 (1). “ ‘A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.’ [Cits.]” Frazier v. Davis, 94 Ga. App. 173, 176 (94 SE2d 51). Thus, this appears to be a claim of medical malpractice based on an averred lack of a reasonable degree of skill and care in the administering of medicine to a patient and/or in the monitoring of the patient’s progress with such medication. “The plain language in OCGA § 9-3-71 (a) that the statute of limitation in a medical malpractice action begins to run on the date ‘on which an injury . . . arising from [an act of malpractice] occurred’ would seem to support the conclusion that the limitation period commences to run on the date of the injury”; that is, it commences on the date when the plaintiff is first injured (Jones v. Lamon, 206 Ga. App. 842, 846 (1) (426 SE2d 657); accord Bryant v. Crider, 209 Ga. App. 623, 625 (434 SE2d 161)). “This court in Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) . . . without any analysis of the matter, stated that the date an injury occurs under the statute is . . . ‘the date the injury is discovered. . . .’ However, it is not necessary to resolve that issue here because, pretermitting whether the time limitation commenced running on the very first day [of plaintiff’s injury], the evidence in the case sub judice establishes uncontrovertedly that appellant was aware of [his] injury [at least before the end of June 1991, when he] contacted [appellee Spencer] and had been experiencing [stomach pain, nausea, and sleep loss] from which [he] was suffering.” Jones, supra at 846. Moreover, on February 18, 1991, appellant became aware that he suffered from an ulcer as a result of a diagnosis made by Dr. Jenkins. Even “[t]he fact that appellant did not know the medical cause of [his] suffering until a later date does not affect the application of OCGA § 9-3-71 (a) ‘when the evidence establishes that appellant’s injury occurred and had physically manifested itself to [him]’ by the earlier date. [Cit.] [Even a] subjective belief that symptoms were due to some other cause unrelated to the alleged negligence does not change the point at which the injury occurred. [Cit.]” Bryant, supra at 626; see Jones, supra 846; compare Henry v. Medical Center, 216 Ga. App. 893 (456 SE2d 216). As the time limitation in OCGA § 9-3-71 (a) commenced to run no later than the end of June 1991 and as this suit was not filed until July 16, 1993, this action was barred by the statute of limitation; accordingly, the trial court did not err in granting summary judgment on behalf of appellees.

Decided May 17, 1995

Phyllis A. Watkins, for appellant.

Long, Weinberg, Ansley & Wheeler, M. B. Satcher III, Jacquelyn D. Van Tuyl, Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., Mark A. Inman, for appellees.

We reject appellant’s contention that the continuing tort theory applies in this case so as, in essence, to extend the date when the statute of limitation under OCGA § 9-3-71 (a) commenced to run; application of such a theory would appear to thwart the intent of the legislature in amending OCGA § 9-3-71 (a) in 1985. Everhart v. Rich’s, Inc., 229 Ga. 798 (194 SE2d 425); Bitterman v. Emory Univ., 175 Ga. App. 348 (333 SE2d 378); and King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252), which are not medical malpractice cases, are distinguishable and not controlling. Compare Frankel v. Clark, 213 Ga. App. 222 (444 SE2d 147) where this court rejected the application of the continuing tort theory in a dental malpractice case involving misdiagnosis. We also reject appellant’s enticement of this court to expand substantially the period of limitation in medical malpractice cases of this nature by adopting a theory of “continuous treatment.” Although the opportunity to do so was presented, the continuing treatment theory was not adopted by a majority of the judges of this court in Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (compare majority, specially concurring and dissenting opinions). We again reject that opportunity.

Appellant’s various contentions in support of his enumerations of error are without merit. Further, by failing to enumerate and brief the issues concerning the grant of summary judgment as to appellant’s claims of negligent infliction of emotional distress and abandonment, appellant has not preserved those issues for appellate review. See generally Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649); Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A1094.
    SLAUGHTER v. THE STATE.
    (459 SE2d 168)
   Birdsong, Presiding Judge.

Darrell P. Slaughter appeals his conviction of violating the Georgia Controlled Substances Act by sale of marijuana and enumerates three errors. Held:

1. Appellant contends the verdict of guilty was contrary to the evidence produced at trial.

(a) On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In this case “the jury was authorized to and did reject the alibi evidence” presented by appellant in light of the eyewitness and in-court identification testimony of Investigator Cunningham and other State’s evidence of record. Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328). Appellant’s enumeration based on a claim of insufficiency of evidence is without merit.

(b) Appellant argues, inter alia, that the in-court identification of appellant by Investigator Cunningham was tainted and therefore inadmissible. “This assertion is beyond the reasonable scope of appellant’s enumeration of error; an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration.” Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649). Moreover, appellant posed no objection at trial to the in-court identification testimony of the investigator. For each of these reasons, the issue of tainted identification has not been preserved for appellate review. Id.; see Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629).

2. (a) Appellant asserts that, because no evidence was produced at trial to show appellant was one of those classes of people, it was error to charge: “I further charge you that only certain persons such as physicians, dentists, veterinarians or pharmacists are authorized to prescribe, sell and dispense controlled substances. An individual, such as the defendant on trial, is not authorized to sell or dispense any controlled substance.” Appellant made admissions in judicio in open court that he worked loading cabbage trucks at the Williams’ farm; during October he went to North Carolina to start a new life, remaining there for one week; and upon returning home, he got his job back loading the trucks. Appellant’s sister testified he worked six days a week outside the city limits for the Ray Gene Produce Company. Thus, uncontroverted evidence of record established that appellant was not employed as a physician, dentist, veterinarian or pharmacist. Accordingly, appellant’s enumeration as crafted is without merit. Additionally this charge was not erroneous as no issue was raised at trial regarding defendant’s qualification to distribute controlled substances. Oglesby v. State, 194 Ga. App. 383, 385 (6) (390 SE2d 630) and cases cited therein.

Decided May 17, 1995.

Rodney L. Allen, for appellant.

H. Lamar Cole, District Attorney, A. Scott Gunn, Assistant District Attorney, for appellee.

(b) Appellant also contends, citing Sweat v. State, 173 Ga. App. 441 (326 SE2d 809), the giving of this charge was error as it constituted an expression of opinion by the trial court “ ‘as to what has or has not been proved or as to the guilt of the accused.’ ” Id. This asserted error is without merit on two grounds. First, as this specific error was not reasonably included within the scope of appellant’s enumeration of errors, it was not preserved on appeal. Krebsbach, supra. Secondly, Sweat, supra, is distinguishable; this issue is controlled adversely to appellant’s contention by the holding of this court in Jackson v. State, 205 Ga. App. 452 (1) (422 SE2d 304).

3. Appellant asserts the trial court erred in charging: “Now you are only concerned with the guilt or innocence of this defendant. You are not to concern yourselves with anything concerning penalty or punishment.” Specifically, appellant claims that, by this charge, the trial court abandoned its position of neutrality and impartiality by indicating to the jury that penalty or punishment should follow their verdict. Jury instructions must be read and considered in their entirety in determining whether a particular charge therein contains reversible error. Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281), citing Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). The jury was instructed immediately preceding the language of the charge at issue, that: “Now, you are only concerned with the guilt or innocence of this defendant.” The jury also was instructed that it was to base its verdict “upon the sworn testimony and evidence introduced and admitted for your consideration.” Examining not only these charges but the instructions in their entirety, we find that the trial court did not abandon its position of neutrality and impartiality as contended by appellant. This enumeration is without merit. See Padgett v. State, 205 Ga. App. 576, 577 (1) (423 SE2d 411).

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A95A0077.
    A95A0078.
    RICE et al. v. DELTA AIR LINES, INC. FITZGERALD et al. v. DELTA AIR LINES, INC.
    (458 SE2d 359)
   Andrews, Judge.

Rice, Fitzgerald, and their wives appeal from the grant of summary judgment to Delta Air Lines, Inc. (Delta) in Rice and Fitzgerald’s suits for personal injuries and their wives’ derivative claims for loss of consortium.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewing the affidavits and depositions with all inferences in favor of plaintiffs, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the facts are that Rice and Fitzgerald were employed as sheet metal workers for Crown Corr, Inc. (Crown). Delta had contracted with Crown for the “reskinning” of the Technical Operations Center II (TOC II), a large hangar used by Delta for servicing airplanes.

Section 4.1 of the General Conditions of the contract provides that “[t]he Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the contract.” (Emphasis supplied.) Section 4.2 states that “[u]nless otherwise specifically provided in the Contract Documents, the Contractor shall provide and pay for all . . . equipment, tools, construction equipment and machinery, . . . necessary for the proper execution and completion of the Work, whether temporary or permanent. . . .”

Section 10.1 states that Crown “shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent . . . injury or loss to (1) all employees on the Work. . . .”

Crown employees constructed a rolling tubular scaffolding for use on the project. The base of the scaffolding was a “farm wagon,” a wagon chassis with four rubber wheels. As described by Beatty, plaintiffs’ expert, the scaffolding was “side-loaded with pick boards and side mounted brackets which affected the center of gravity of the scaffold. It had one set of outriggers with screwjacks located on the side opposite of the pick boards.” The scaffold was approximately five feet wide, twenty feet long, and thirty-five feet high. When the scaffolding was in use, it would be placed against the side of TOC II where the work was being conducted and the outriggers engaged so that the scaffolding was braced against the building. As opined by Beatty, “this scaffold was destined to fall given its configuration, its imbalance, and the fact that nothing was provided to assure its stability. This scaffold would have tipped or fallen whether or not it was tied to the hangar or left free standing away from the hangar. . . . [I]t was just as likely that the scaffold would have fallen with or without a gust or force of wind.”

During this project, Delta continued to service airplanes in the hangar. When a plane had to be moved in or out of the hangar, Delta would request Crown to move the scaffolding if it interfered with the plane’s being moved.

Sometime during Delta’s evening shift at TOC II on September 18, 1991, a hangar door was being closed and damaged the scaffolding. It was not reported that evening but when Oswalt, Crown’s field superintendent, arrived for work the next morning, he noticed the damage and reported it to Delta which assumed responsibility for the damage. Delta did not pay for the repairs but did offer to pay for them if Crown “felt it necessary.” No request was made by Crown for payment.

The scaffold was being repaired by Crown employees over the next two days. On September 20, Hornsby, Delta’s lead mechanic, asked the Crown crew to roll the scaffold away from the hangar doors so Delta could move a jet. The scaffold was rolled onto the ramp outside the hangar by Crown employees and the jet was being backed out. This was done by a mechanized cart pushing the plane from the front. The engines of the plane were not operating.

The Delta employees watching the jet’s wingtips heard screaming and the scaffold fell onto its unbraced side with Rice and Fitzgerald hooked to the upper level by their safety harnesses. They had been working on repairing the scaffold and had climbed back to the top of the scaffold after it was moved. Both men were severely and permanently injured.

Crown was cited and fined by OSHA as a result of the accident.

2. Plaintiffs contend that the court erred in granting Delta’s motion for summary judgment because, pursuant to OCGA § 51-2-5 (2) and (4), Delta was liable for its independent contractor’s negligence on two bases: 1) the work was “in its nature dangerous to others however carefully performed” or 2) that the wrongful act of improperly constructing and repairing the scaffold was a violation of a duty imposed by OCGA § 34-1-1 (a) (1).

(a) Considering the latter first, OCGA § 34-1-1 (a) (1) requires that all scaffolding over 30 feet high have a safety rail and that “[s]uch scaffolding or staging shall also be so fastened as to prevent it from swaying from the building or structure.” It is “unlawful for any person to employ or direct others to perform labor of any kind in the . . . , repairing, [or] altering ... , of a building or other structure without first having furnished proper protection to such person so employed or directed, as provided in paragraph (1). . . .” (Emphasis supplied.) Violation of the statute is a misdemeanor. OCGA § 34-1-1 (d).

Plaintiffs contend that Delta is responsible because it “directed” Crown employees to perform labor without furnishing proper protection with regard to the scaffolding. Even assuming, without deciding, that a civil cause of action can be provided by violation of this penal statute, the statute on its face applies only to one who directs another to work on a building or structure without a proper scaffold. Here, at the time Delta made its request that the scaffold be moved, no work was being done on the structure by Rice and Fitzgerald because of the damage to the scaffold. Work was being performed on the scaffold itself. Therefore, this statute provides no basis for Delta’s liability.

(b) In order for OCGA § 51-2-5 (2) to apply, the work must be “in its nature dangerous to others however carefully performed.” (Emphasis supplied.)

There was no evidence that all work on all scaffolding is inherently dangerous. The evidence put forward by plaintiffs was that this particular scaffold had been improperly constructed by Crown and was inherently dangerous. “Therefore, plaintiff[s] failed to establish that the work was dangerous ‘however carefully performed.’ Where the work is not inherently dangerous except as a result of the negligence of the contractor the employer is not liable. [Cit.]” Mason v. Gracey, 189 Ga. App. 150, 153 (1) (b) (375 SE2d 283) (1988) (use of a blowtorch to remove paint from wood is not inherently dangerous).

Decided April 27, 1995

Reconsiderations denied May 18, 1995

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Jeffrey G. Casurella, Hamil & Dickinson, R. Timothy Hamil, David L. Dickinson, for appellants.

Dermer & Black, Stephen F. Dermer, for appellee.

Working on scaffolding can be done safely, as reflected by OCGA § 34-1-1. See Green v. Moreland, supra (work on a bridge could have been done safely except for the contractor’s placing a crane too near high-voltage electrical lines).

Therefore, summary judgment was properly granted to Delta.

3. Our decision in Division 2 makes unnecessary consideration of the remaining enumerations of error.

Judgments affirmed in Case Nos. A95A0077 and A95A0078.

McMurray, P. J., and Blackburn, J., concur.

       As reflected by the portions of the contract, supra, Crown was an independent contractor regarding reskinning TOC II. Green v. Moreland, 200 Ga. App. 167 (1) (407 SE2d 119) (1991).

       But see in this regard Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 61-62 (I) (200 SE2d 127) (1973), rev’d on other grounds, 420 U. S. 469 (95 SC 1029, 43 LE2d 328) (1975), and Cechman v. Travis, 202 Ga. App. 255, 256 (1) (414 SE2d 282) (1991).


text:
    A95A1227.
    ADDY v. ADDY et al.
    (458 SE2d 145)
   Blackburn, Judge.

Bernard Addy, Jr., administrator of the estate of Vennie Lee Davis, appeals the trial court’s order which granted his petition for accounting of commissions.

In his petition for accounting of commissions, Addy specifically requested statutory commissions pursuant to OCGA § 53-6-140, extraordinary expenses pursuant to OCGA § 53-6-150, and repayment of sums advanced for the expenses of the estate including attorney fees and expenses of litigation. The trial court awarded statutory commissions pursuant to OCGA § 53-6-140, but awarded no extraordinary expenses pursuant to OCGA § 53-6-150, nor any sums for repayment of expenses. Addy admitted that “the vast majority of the extraordinary time and advanced expenses were spent in prosecuting a civil suit.” The trial court noted in its order that the judgment in the civil action included a sum of money awarded as attorney fees.

OCGA § 53-6-150 provides that “[i]n other cases of extraordinary services, extra compensation may be allowed by the judge of the probate court. . . .” Such an allowance is within the court’s discretion, and the trial court must find that the services were truly extraordinary and not merely duties ordinarily incident to the administration of the estate. See Hartford Accident &c. Co. v. Cohran, 106 Ga. App. 14, 21 (126 SE2d 289) (1962); Adair v. St. Amand, 136 Ga. 1, 8 (70 SE 578) (1911). OCGA § 53-6-147 provides for the reimbursement of the administrator’s actual expenses for required “travel out of his county in the discharge of his duty.” However, the probate court must find that such travel was required.

Decided May 18, 1995.

Adams & Ellis, Dwight T. Feemster, for appellant.

Laura L. Addy, pro se.

In the present case, the probate court heard argument twice on Addy’s petition for accounting and commissions, prior to entering its order. This court has not been provided with transcripts of such hearings, and, on appeal, Addy has failed to present any evidence of an abuse of the trial court’s discretion. Therefore, absent a showing of abuse of discretion, the probate court’s order is affirmed.

Judgment affirmed.

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