author: Pope, Judge. McMurray, Presiding Judge,

text:
    76593.
    McGINTY et al. v. ALFRED L. SIMPSON & COMPANY et al.
    (374 SE2d 217)
   Pope, Judge.

On April 30, 1985, the administrative law judge (ALJ) awarded claimant Ronald McGinty workers’ compensation benefits to be paid by his employer Alfred L. Simpson & Company. The award approved the terms of the contract between the claimant and his attorney for fees amounting to one-third of the benefits awarded. However, the award declined to assess attorney fees against the employer because the ALJ found the employer had asserted a reasonable defense. The employer gave notice to the claimant’s attorney that it had filed an appeal of the award to the full board on May 30, 1985. However, the board later issued an order finding no appeal had been timely filed and further stating that even if a timely appeal had been filed, the award would have been affirmed. The claimant then moved for assessment of a twenty percent penalty, pursuant to OCGA § 34-9-221 (f), for the employer’s failure to pay the award within twenty days from the date of the award. The ALJ awarded a twenty percent penalty to the claimant and assessed attorney fees of one-third of the penalty against the employer. The employer appealed the penalty and the claimant cross-appealed, asking for greater attorney fees.

After a hearing on the appeal, the full board remanded the case to the ALJ to receive further evidence of the reasonable value of the services rendered by claimant’s attorney. On remand, evidence was presented that claimant’s attorney had expended approximately twenty-one hours, which he valued at $2,450, in pursuit of his client’s claim from the date of the initial award through the employer’s appeal of the order granting a penalty. The full board then affirmed the award of a penalty. The board also granted attorney fees to be paid by the employer in the sum of $2,450. However, the board found that the services provided by the claimant’s attorney both before and after the initial award of benefits were “related to the securing of a recovery on behalf of the claimant.” The original award required attorney fees to be paid by the claimant. Because Board Rule 108 (b) (3) proscribes payment by the claimant of any attorney fees which are assessed against the employer, the board ordered the attorney to reimburse the claimant for all attorney fees collected pursuant to the original award. Claimant’s attorney, signing the pleadings both in an individual capacity and as attorney for the claimant, appealed to the superior court that portion of the board’s ruling which ordered reimbursement of attorney fees. The superior court upheld the board’s order. Claimant’s attorney filed this appeal, again in an individual capacity and as attorney for the claimant.

The sole issue on appeal to the board was the authority of the ALJ to award a penalty and attorney fees for failure to pay the original award within twenty days. The terms of the original award of benefits and the accompanying order approving the attorney fees contract were not at issue. In fact, that award was final because it was not timely appealed. See OCGA § 34-9-102 (f). The original award of attorney fees is res judicata and cannot be modified in any subsequent proceeding between the same parties. Caldwell v. Perry, 179 Ga. App. 682 (1 & 2) (347 SE2d 286) (1986); see also Georgia Cas. &c. Co. v. Randall, 162 Ga. App. 532 (299 SE2d 118) (1982).

We note that the original award of attorney fees contains language which attempted to confer continuing jurisdiction over the award and stated the award was “subject to review and amendment at any time . . . .” However, “the State Board of Workers’ Compensation has no continuing jurisdiction over its awards except to determine a change in condition.” Hanover Ins. Co. v. Jones, 148 Ga. App. 236, 239 (251 SE2d 60) (1978). “The [board] is an administrative body and it possesses only the jurisdiction, power, and authority granted to it by the legislature.” Robinson v. Zurich Ins. Co., 131 Ga. App. 795, 796 (207 SE2d 209) (1974). Only within the time period for appealing an award to the full board may the board or its members “reconsider, amend, or revise the award to correct apparent errors and omissions.” OCGA § 34-9-103 (b). Accord Aetna Cas. &c. Co. v. Barden, 179 Ga. App. 442 (346 SE2d 588) (1986). Moreover, the purpose of the statute permitting amendment of an award within the period for seeking appellate review is only to permit correction of mistakes which appear in the record. Cotton States Ins. Co. v. Bates, 140 Ga. App. 428 (231 SE2d 445) (1976). “The intent of [OCGA § 34-9-103 (b) is] not to open the case for a de novo hearing . . . .” Id. at 429. Because the board had no authority to revise the original award of attorney fees, that portion of the full board award which revised the original award and ordered attorney fees to be reimbursed to the client is void. See Hanover Ins. Co. v. Jones, supra.

The board correctly upheld the ALJ’s award of a twenty percent penalty for failure to pay the original award of benefits within twenty days. The ALJ’s award further directed the employer to pay attorney fees of one-third of the amount of the penalty. The full board, however, did not uphold the ALJ’s decision on attorney fees but awarded $2,540 for all services rendered by the claimant’s attorney in regard to this claim. That portion of the award of the full board which affirmed the penalty is proper but, as stated above, that portion of the award which revised the original award and ordered the attorney to reimburse the claimant for attorney fees paid under the original order is void. Accordingly, we reverse the order of the superior court which upheld that portion of the award and remand to the court for a determination of appropriate attorney fees to be paid by the employer for services rendered by claimant’s attorney in pursuit of the claim for a penalty.

Decided October 6, 1988.

Ronald L. Hilley, for appellants.

John C. Parker, for appellees.

Judgment reversed.

Birdsong, C. J., Deen, P. J., Corley, Sognier, and Benham, JJ., concur. McMurray, P. J., Banhe, P. J., and Beasley, J., dissent.

McMurray, Presiding Judge,

dissenting.

We have a fundamental responsibility to supervise the practice of law in this court and to be sure that litigants are properly represented. See generally Judicial Qualifications Comm. v. Lowenstein, 252 Ga. 432, 433 (314 SE2d 107). In the case sub judice, the interests of the claimant and the claimant’s attorney are adverse. Each of them has an interest in retaining the attorney fees which the board approved originally.

The attorney has appealed, arguing that he is entitled to retain the attorney fees. Who represents the claimant? His interests are not advanced by the attorney. And we have not heard from him.

I cannot see how this court can make a ruling which is adverse to the claimant’s interests without being sure that the claimant has been given an opportunity to be heard. Accordingly, I respectfully dissent as I would remand this case for further proceedings to be sure that the interests of the claimant are properly protected.

I am authorized to state that Presiding Judge Banke joins in this dissent.

       In essence, the award of the full board resulted in an additional recovery by the claimant due to the reimbursement of previously paid attorney fees from his attorney. Because the claimant’s attorney in a workers’ compensation claim is the beneficiary of the award of attorney fees, he becomes a “quasi-party” to the claim. Thus, the attorney has standing to appeal the award of attorney fees. However, in this case the interests of the attorney were clearly in conflict with those of his client. In such a situation, the attorney is required to disclose the conflict to his client in writing and to obtain the client’s consent for continued representation. See Standard 30 of the Standards of Conduct of the State Bar of Georgia, 252 Ga. 571, 647-648. Pursuant to the rationale set forth in the body of this opinion, we find the Workers’ Compensation Board had no authority to make the award from which the appeal is taken. Consequently, the conflict of interest which would otherwise be inherent in this case is removed and we need not remand for further proceedings to assure that the interests of the claimant have been appropriately protected.

       At the time the original award was granted, the Workers’ Compensation Act allowed a party thirty days to appeal an award to the board. OCGA § 34-9-103 (a) (later amended to allow twenty days to appeal by Ga. L. 1987, p. 806, § 2). Nevertheless, even if the employer had filed a timely appeal, after twenty days from the date of the award it would still have been subject to a penalty for failure to pay benefits within twenty days. See McLean Trucking Co. v. Florence, 179 Ga. App. 514 (347 SE2d 333) (1986).

       Even if the original award had been subject to revision, no evidence exists to support the board’s finding that the services rendered before and after the initial award were the “same services” or were related to securing the same recovery for the claimant. The record shows the initial award had been paid by the employer before claimant’s attorney moved for the imposition of a twenty percent penalty for untimely payment. The penalty is not part of the initial award of benefits and is not related in any way to compensation for the claimant’s injuries. It is purely a penalty against the employer, imposed as an incentive for prompt payment of adjudicated awards. Moreover, on remand to the ALJ, all evidence presented concerning the value of the attorney’s services was clearly identified as relating only to services rendered after the initial award and in pursuit of the claim for a penalty. Finally, the initial award of attorney fees found the employer was not liable for attorney fees expended in pursuit of the initial award of benefits because it had asserted a reasonable defense to the claim. To go back now and impose attorney fees against the employer for that portion of the attorney’s services which were expended in pursuit of the original claim for benefits would be contrary to OCGA § 34-9-108 (b).


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    76705.
    REYNOLDS v. THE STATE.
    (374 SE2d 341)
   Sognier, Judge.

Douglas Reynolds was found guilty but mentally ill of the offenses of rape, aggravated assault and burglary. He appeals.

1. Appellant contends the trial court erred by denying his motion to suppress both the in-custody statement he made after waiving his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)) and the consent to search form he signed because he was not able, due to mental illness and retardation, to understand his rights in order to waive them validly.

During the hearing on the motion, Investigator Willie Rosser of the City of Decatur Police Department testified that on the evening of August 21,1987, the day following the rape-burglary at the victim’s apartment on Oakview Road, as part of his investigation he was going from door to door in the apartment complex when he arrived at appellant’s apartment, two doors down from the victim’s. Rosser was allowed inside and was asking appellant whether he had seen or heard anything when appellant suddenly, “point blank,” told Rosser that the police could “just stop this right now ‘cause I’m the man that you’re looking for and I’m the one that did it.” Rosser, who was “very surprised” by appellant’s statement, placed appellant under arrest and transported him to the police station.

Within 15 minutes after their arrival at the station, Rosser apprised appellant of his Miranda rights by reading directly to appellant a form setting forth those rights, which appellant signed and Rosser witnessed. Rosser testified that appellant seemed to understand the rights as read to him, and that appellant asked no questions and made no remarks indicating he was unable to understand what the rights meant. Rosser also testified that appellant wrote his signature on the waiver form at a normal speed and with the effort of a normal or average person. Immediately thereafter, appellant gave a statement which Rosser taped on a tape recorder. The entire taped statement, without alterations or changes, was played for the trial judge during the hearing. In the taped interview, appellant stated that after “admiring” the victim since he moved into his apartment, he broke into her apartment by prying open the door and, armed with a butcher knife, proceeded to rape her. In response to Rosser’s question “[c]an you tell me exactly what happened when you got into the house,” appellant gave a sequential, detailed and unprompted recitation of the facts that matched almost identically the version of the crimes given the police by the victim. At the end of the taped statement, the following question and answer interview occurred:

Rosser: “[H]as anybody used any force to make you make this statement?”

Appellant: “Naw.”

Rosser: “Are you making this statement of your own free will?”

Appellant: “Yes, I am.”

Rosser: “You has [sic] been advised of your rights by Investigator Rosser?”

Appellant: “Yes, I have.”

Rosser: “And you did, did you understand your rights?”

Appellant: “Yes, I did.”

Rosser: “And did you also sign a waiver of your rights?”

Appellant: “Yes, I did.”

On cross-examination, Investigator Rosser testified that he did not ask appellant any questions regarding his mental capacity, that he did not know whether or not appellant read the waiver form when it was handed to him, and that, after reading appellant the waiver form and the subsequently executed consent to search form, Rosser did not explain any of the terms on either form but instead asked appellant if he understood them. Rosser stated that from the alertness, awareness and eye contact demonstrated by appellant at that time, he had no reason to believe that appellant had any psychiatric problems or was under medication or had less than normal capacity to deal with the police in their investigation.

Appellant’s counsel presented documentary evidence that appellant was receiving disability benefits from the Social Security Administration (SSA) based on personality disorders appellant had been experiencing since October 1984. The SSA’s medical report indicated appellant was a man with “[b] order line to dull normal intellectual function” but with no recent or remote memory impairment who was competent to manage funds. Although deemed eligible for disability benefits due to personality disorders, appellant was not receiving any benefits for mental retardation.

The final witness at the hearing was Jerold Lower, the doctor who conducted the court-ordered competency evaluation. During the defense counsel’s examination, Dr. Lower was given the SSA’s evaluation that appellant’s intellectual capacity was “borderline” (but, we note, not “borderline to dull normal”) Dr. Lower testified that a person with a borderline intelligence like appellant’s would probably not be able to know and understand accurately the meaning of the waiver form and the consent to search form. After listening to the tape-recorded confession, however, Dr. Lower agreed that appellant’s statement that he understood his rights at the time they were read to him was “some evidence” that he did understand, though not “fool proof.” As to appellant’s psychiatric problems, no evidence was introduced to controvert Dr. Lower’s testimony that based on his examination of appellant, he did not believe appellant was actively psychotic at the time he waived his Miranda rights and consented to the search of his apartment. Dr. Lower testified he thought appellant to be an individual whose serious psychiatric problems fluctuated, leaving moments when appellant was relatively well, and that the tape-recorded confession, which the doctor listened to during the hearing, was not particularly indicative that appellant was psychotic at the time he gave the statement.

“A mere showing that a person who confessed to a crime may have suffered from some mental disability is not a sufficient basis on which to exclude the statement. [Cits.] ‘A trial court may be authorized to find that an individual is capable of waiving his rights even though there is evidence to the effect that he is moderately retarded. [Cit.]’ [Cit.] The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by appellate courts unless clearly erroneous. [Cits.] Considering all the evidence presented at the hearing on this issue, we find no error in the trial court’s ruling admitting appellant’s confession into evidence.” Marlowe v. State, 187 Ga. App. 255, 257 (370 SE2d 20) (1988).

We note the recent federal court opinion, Smith v. Zant, — F2d _(Case No. 88-8436, 11th Cir., decided August 26, 1988), in which the defendant’s convictions were reversed on the basis that the defendant did not intelligently waive his Miranda rights under the circumstances. In that case the defendant was severely retarded, possessing an intelligence quotient of 65 (placing him in the bottom two percent of the population) with a mental age of 10 or 11, and encountered excessive stress in his dealings with the police due to his flight after the commission of the crime and his incarceration overnight in another county without communication from his family. We do not find the overwhelming considerations in Smith that compelled the federal court to its conclusion present in the case sub judice where the appellant is “borderline to dull normal” in intelligence, able to manage his own funds and sign his name like an average person, and where there is no evidence he encountered “excessive stress” comparable to that of the defendant in Smith. Therefore, we affirm the trial court’s ruling admitting appellant’s confession and the fruits of the consensual search of appellant’s apartment into evidence.

2. Appellant contends the trial court erred by denying his motion for psychological testing and evaluation. The record reveals that after appellant was indicted in September 1987, the parties consented to an order for the psychiatric examination of appellant. Pursuant to this order, Dr. Lower evaluated appellant on December 3, 1987, for the stated purposes of determining appellant’s competency for trial and criminal responsibility. In his evaluation report, Dr. Lower stated that other than the unprescribed substances and alcohol appellant claimed he had taken at the time of the crimes, there was “no evidence of any other factor which would have interfered with [appellant’s] ability to appreciate the illegality of the conduct charged, nor did I see evidence of delusional compulsion.” Dr. Lower subsequently met with appellant in late December 1987 and on the Wednesday before trial, the last visit pursuant to the trial court’s order, in response to a written motion for psychological testing and evaluation of appellant filed by his counsel, that appellant be examined for the purpose of determining competency to stand trial and degree of criminal responsibility at the time of the offense. Dr. Lower was called by the defense as a witness at trial.

Appellant cites Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985) and Lindsey v. State, 254 Ga. 444 (330 SE2d 563) (1985) to support his contention that the psychiatric examinations he underwent were not sufficient because there was no finding that appellant was mentally competent at the time of the offense. We note that we need not determine whether under Lindsey, supra at 448-449, a doctor of psychology qualifies equally with a doctor of psychiatry to examine a defendant since appellant raised no objection before the trial court to the fact that his examination was conducted by Dr. Lower, a doctor of psychology, a diplómate in forensic psychology, director of forensic services at Georgia Mental Health Institute and a graduate of the University of Alabama School of Law, and is thus deemed to have waived all objection. See generally Phinazee v. State, 182 Ga. App. 45, 46 (3) (354 SE2d 671) (1987).

We find the case sub judice factually distinguishable from Ake and Lindsey, supra. In Ake, the trial court originally ruled that Ake was not competent to stand trial, then altered that order after the psychiatrist at the hospital to which Ake had been committed informed the court that medication had rendered Ake competent to stand trial. No inquiry had been made to determine Ake’s sanity at the time of the offense and the trial court denied the motion for a psychiatric evaluation at state expense. In Lindsey, the defendant refused to talk to the psychiatric evaluating team sent by court order to examine him and the trial court denied the motion for a private psychiatric examination in which the defendant requested state funds to employ a specifically requested psychiatrist. The trial court then directed a verdict ruling the defendant competent to stand trial although no psychiatric evaluation addressed the question of whether the defendant was mentally competent to commit the offenses charged. However, in the case sub judice, appellant was examined on three occasions by a psychologist directed by the trial court not only to determine appellant’s competency to stand trial but also to determine the degree of appellant’s criminal responsibility at the time the offense was committed. Dr. Lower found no factors interfering with appellant’s ability to appreciate the illegality of his conduct at the time of the offense in his report to the court. Subsequently, at trial, while Dr. Lower acknowledged that no one could be “absolutely certain” of the mental competency of a criminal defendant, the degree of certainty varied with the mental illness suffered by the defendant, and that based on his observations and talks with appellant, he saw no evidence that at the time of the crime itself appellant was under any delusional compulsion which would have otherwise excused or justified his conduct.

Therefore, under the circumstances set forth above, we find the treatment appellant received met the requirements of Ake and Lind sey, supra, and we find no error in the trial court’s denial of appellant’s motion for psychological testing.

Decided October 6, 1988.

Richard E. Johnson, for appellant.

Robert E. Wilson, District Attorney, James W. Richter, Eleni A. Pryles, Assistant District Attorneys, for appellee.

3. In his final enumeration, appellant asserts error in the trial court’s denial of his motion for a continuance made at the beginning of trial in order that appellant might undergo psychiatric examination by another doctor once funds were obtained. “ ‘A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. [Cits.]’ [Cit.]” Heflin v. State, 183 Ga. App. 149 (1) (358 SE2d 298) (1987). We find appellant’s assertion indistinguishable from that raised in Heflin, in which we held: “The State complied with its obligations under the United States Constitution as interpreted by the U. S. Supreme Court in Ake[, supra], and appellant did not make a showing that additional psychiatric study was necessary. We find no abuse of discretion in the trial court’s denial of appellant’s motion for continuance.” Id. at 150 (1).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    76746.
    HUDSON et al. v. WILLIAMS.
    (374 SE2d 220)
   McMurray, Presiding Judge.

On October 15, 1985, plaintiff Mary Hudson and defendant Williams were involved in an automobile collision. Plaintiff Mary Hudson filed a complaint for damages on June 5, 1987, allegedly arising from the incident on October 15, 1985. On September 22, 1987, the superior court (acting on defendant’s motion filed September 14, 1987) ordered plaintiff William Hudson (husband of plaintiff Mary Hudson) joined as a party plaintiff. The complaint was subsequently amended to add the loss of consortium claim of plaintiff William Hudson.

A deputy sheriff served the original complaint at 170 Irwin Street, Cedartown, Georgia by leaving it with Leola Williams, the defendant’s mother. In her initial answer defendant denied plaintiff’s allegation that she resided at the Cedartown address.

Defendant again denied residence at the Cedartown address in her deposition taken September 30, 1987. Defendant deposed that she lived at 1 Walnut Street, Aragon, Georgia and had been living there for approximately five months. Defendant produced a driver’s license issued March 3, 1987, which listed the Aragon address. Defendant also testified that she had last resided on Irwin Street in Cedartown four years previously. Defendant gave further notice of her Aragon address in her response, filed October 2, 1987, to plaintiff Mary Hudson’s interrogatories. The defendant had not been served with the complaint in the case sub judice at her Aragon address.

On January 5, 1988, defendant moved to dismiss plaintiff Mary Hudson’s complaint, contending that the superior court lacks personal jurisdiction because of insufficiency of service of process. Plaintiffs appeal the grant of defendant’s motion to dismiss. Held:

Plaintiffs rely upon the return of service filed by the deputy sheriff as proof that defendant had been served at her “most notorious place of abode in this County.” “While the return of service imports verity and is itself evidence of a high order, it is not conclusive as to the facts stated therein but may be set aside upon evidence ‘which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ Woods v. Congress Fin. Corp., 149 Ga. App. 156, 157 (253 SE2d 834) (1979), citing Denham v. Jones, 96 Ga. 130, 132 (23 SE 78) (1894).” Daniel v. Leibolt, 178 Ga. App. 186, 189 (3), 190 (342 SE2d 334). Plaintiffs contend that the evidence in support of defendant’s motion to dismiss was not sufficient to meet this standard and thus overcome the presumption raised by the deputy sheriff’s return. However, in Sorrow v. Seloff, 177 Ga. App. 87 (1) (338 SE2d 482), we held that a return of service may be impeached by sworn statements made on personal knowledge. Thus, in the case sub judice there was some evidence authorizing the superior court’s resolution of the issue of fact regarding sufficiency of service and this court will not disturb the superior court’s finding. Sorrow v. Seloff, 177 Ga. App. 87 (1), supra.

Nor do we find any merit in plaintiffs’ contention that defendant waived the defect in service by requesting and receiving an order of joinder requiring the assertion of the husband’s derivative claim in the case sub judice. Such was not inconsistent with the defendant’s assertion of the insufficiency of service issue and did not manifest a consent to the jurisdiction of the superior court. Unlike Georgia Power Co. v. O’Bryant, 169 Ga. App. 491 (313 SE2d 709), cited by plaintiffs, in the case sub judice defendant preserved the insufficiency of service of process defense by continuing to assert this issue through the pre-trial procedure so that this issue is noted in the pre-trial order among those issues remaining for determination. The grant of defendant’s motion to dismiss was not error.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided October 6, 1988.

Kenneth J. Jones, for appellants.

J. Clinton Sumner, Sidney P. Wright, for appellee.


author: Beasley, Judge.

text:
    76798.
    MADDOX v. BROWN et al.
    (374 SE2d 222)
    Decided October 6, 1988.
   Beasley, Judge.

Defendant Maddox appeals the grant of plaintiff Brown’s motion for partial summary judgment. Maddox asserts that the trial court’s failure to consider and review both of his two depositions was error.

The Supreme Court in General Motors Corp. v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979), held: “A deposition need not be introduced in evidence in order to be considered in ruling upon a motion for summary judgment because the Civil Practice Act only requires that it be on ‘file.’ ... If a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered.”

Here the order granting the motion, entered February 2, 1988, recited that it was entered, “after reviewing all the pleadings, depositions, briefs and after hearing argument by counsel for both parties.” However, the trial judge has informed this court that he did not open Maddox’s deposition of June 24,1987, and did not consider it in making his decision. Thus, because the deposition filed December 18, 1987, was not a part of the trial court’s deliberations, Walker is specifically not applicable. Ignoring the sealed deposition constituted reversible error because the summary judgment motion implicated the issue of whether Maddox’s counterclaim was maintainable, as well as whether his Yost [256 Ga. 92 (344 SE2d 414) (1986)] claim was meritorious. See Anderson v. Matich, 186 Ga. App. 84, 86 (2) (366 SE2d 300) (1988). The judgment must be reversed with direction that the trial court consider it and all pertinent documents and proof before determining whether Brown’s motion should be granted.

Judgment reversed with direction.

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

W. Ron Bryan, for appellant.

Robert T. Romeo, for appellees.


text:
    77075.
    ALDRIDGE v. THE STATE.
    (374 SE2d 223)
   Sognier, Judge.

Glenn Aldridge was convicted of escape and second degree criminal damage to property on August 13, 1985. He moved on March 19, 1986, for permission to file an out-of-time appeal on the ground that his trial counsel had failed to file an appeal after being asked to do so, and the trial court granted his motion the same day. Appellant then filed a notice of appeal pro se together with a motion for appointment of counsel on June 5, 1986. The State immediately moved to dismiss the appeal as untimely, and the trial court granted the motion on June 10th. Subsequently, the lower court appointed counsel for appellant on December 4, 1986, and this appeal was docketed on May 11, 1988, after certification of delay in transcript preparation by the superior court clerk. Appellant, through appointed counsel, timely filed a brief addressing the merits of his appeal, and in response the State renewed its contention that the appeal should be dismissed as untimely filed.

Although OCGA § 5-6-38 (a) provides that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of,” a criminal defendant may be permitted to file an out-of-time appeal when trial counsel fails to file an appeal despite being requested to do so. Williams v. Hopper, 243 Ga. 475 (254 SE2d 854) (1979). Thus, the trial court was authorized to grant appellant’s motion for an out-of-time appeal. Nevertheless, appellant’s subsequently-filed notice of appeal was untimely because it was filed seventy-eight days after entry of the order allowing his out-of-time appeal. OCGA § 5-6-39 (c) permits only one extension of time for filing a notice of appeal, and states further that “the extension shall not exceed the time otherwise allowed for the filing of the notices initially.” Appellant never requested an additional extension of time, nor was the trial court authorized to grant more time. Accordingly, appellant’s appeal is dismissed as untimely filed. See OCGA § 5-6-48 (b) (1); see generally Hester v. State, 242 Ga. 173, 175 (249 SE2d 547) (1978); Willis v. State, 186 Ga. App. 197 (366 SE2d 778) (1988).

Appeal dismissed.

Deen, P. J., and Parley, J., concur.

Decided October 6, 1988.

W. Jefferson Hires, for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee.


text:
    77092.
    WINGATE v. THE STATE.
    (374 SE2d 224)
   Sognier, Judge.

Leonard Wingate appeals his conviction for the offense of burglary.

1. Appellant first enumerates the general grounds, and contends specifically that the testimony given by the victim and a witness was not credible. Viewed in the light most favorable to the prosecution, the record discloses that on the night of October 10, 1987, Collins, a disabled elderly woman who lived alone, was at home in bed when she was accosted by a man who entered her house, told her he had come to take her money, and threatened to kill her. The intruder took her purse, which contained approximately $200, out of a drawer. Collins testified that although the perpetrator wore a white cloth wrapped around his head and jaw, because of his distinctive nose she recognized him as appellant, an acquaintance of her brother. The victim also stated she had seen appellant remove her house key from the front door earlier that day when he and her brother brought her home. Evans, who lives across the street from Collins, testified she saw appellant open Collins’ front door, and she went for help and returned with a neighbor. Both women then entered the Collins home through the unlocked front door and discovered a man inside the house, who dashed out when they confronted him. Evans also identified appellant as the man they saw, because she recognized his nose. Johnson testified that late on the evening of October 10th, after he learned of the theft, appellant asked him for a ride to Lyons and admitted he had “done wrong.” Johnson encouraged appellant to return the money, but appellant refused, saying “they’re going to lock me up” anyway.

“The weight of the evidence and credibility of witnesses are questions for the jury. [Cit.]” Davis v. State, 180 Ga. App. 299, 300 (1) (349 SE2d 29) (1986). We have examined the record and find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends in his other enumeration that the trial court erred by denying his motion for a jury view of the crime scene and surrounding neighborhood. He argues a view of the scene was necessary to discredit Evans’ testimony by showing she could not have seen appellant from her porch as she testified and could not have, during the short time period she claimed, traveled to the various destinations discussed in her testimony.

Decided October 6, 1988.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

A “scene view” is not evidence, but rather may be conducted “ ‘to aid the jury to better understand [the] evidence. . . .’ [Cit.]” Harper v. State, 182 Ga. App. 760, 761-762 (2) (357 SE2d 117) (1987). “The decision to allow the jury to view a scene is discretionary with the trial court, and will not be overturned unless there is a clear abuse of discretion. [Cits.]” Kennedy v. State, 177 Ga. App. 688, 689 (2) (341 SE2d 17) (1986). The record reveals that subsequent to appellant’s motion, defense counsel diagrammed the neighborhood scene on a chalkboard during his cross-examination of Evans, and used this diagram when questioning other witnesses. The trial court then denied appellant’s motion for a scene view, concluding the diagram gave the jury “a clear view” of the situation. Under these circumstances, we find no error in the denial of the motion. See generally Green v. State, 167 Ga. App. 548, 549 (2) (306 SE2d 354) (1983).

Judgment affirmed.

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


text:
    77142.
    WILSON v. THE STATE.
    (374 SE2d 345)
   McMurray, Presiding Judge.

Defendant was charged with committing the offense of aggravated assault by shooting Theodore Jackson in the back, upper right arm and left leg with a gun. Defendant entered a plea of guilty to the charge. Thereafter, defendant moved to withdraw his guilty plea. The State consented to the withdrawal of defendant’s plea and the trial court ordered that the plea be withdrawn.

Defendant subsequently entered another guilty plea. He was sentenced to confinement for a period of 20 years, 5 years to serve and the remainder on probation. As a condition of probation, defendant was ordered to pay a fine in the amount of $500, a $50 surcharge on the fine (pursuant to the “Peace Officer and Prosecutor Training Fund Act of 1983”), restitution in the amount of $33,185.35 and a law library fee of $2, for a total of $33,737.35. In order to pay the total amount, defendant was ordered to make payments of $150 per month to the probation office upon his release from prison.

Defendant moved to modify the sentence, contending he was not afforded an opportunity to contest the imposition of restitution. In this regard, he alleged the amount of restitution was never adjudicated and that it constituted a penalty for a debt because it was to be paid to a hospital, not the victim.

The trial court conducted a hearing upon defendant’s motion to modify the sentence. At the hearing, a patient’s account representative for the hospital testified that the victim owed the hospital $33,185.35. She said that amount represented reasonable expenses incurred by the victim for treatment. She also stated she found nothing in the hospital records to indicate that the victim was treated for anything other than gunshot wounds. In this regard, the account representative averred that the victim’s expenses were “all related, I believe, to the gunshot wound; I mean that is what he was in there for and he stayed there until he was well and he was discharged.”

At the conclusion of the hearing, the trial court denied defendant’s motion to modify the sentence. Thereupon, defendant appealed. Held:

1. Defendant no longer contends that the amount of restitution was not adjudicated. See in this regard OCGA § 42-8-35 (7) which reads, in part: “[N]o reparation or restitution to any aggrieved person for the damage or loss caused by his offense shall be made if the amount is in dispute unless the same has been adjudicated.” See also Johnson v. State, 156 Ga. App. 511 (274 SE2d 669); Johnson v. State, 157 Ga. App. 155, 156 (2) (276 SE2d 667). Rather, he asserts the adjudication was improper because the evidence adduced at the motion hearing did not establish that the victim’s medical expenses were incurred as a result of the shooting.

The evidence was more than sufficient to enable the trial court to conclude that the expenses incurred by the victim resulted from the aggravated assault committed by defendant. The mere fact that the hospital account representative stated she “believed” that to be the case does not detract from the overall certainty of the evidence. The first enumeration of error is without merit.

2. Defendant also urges us to reverse the imposition of restitution on the ground that he cannot be required to make restitution to the hospital since he did not commit a crime against that entity. We disagree. It was the victim who incurred the expenses at the hospital. The payment of the victim’s hospital bill constitutes restitution to him. Defendant’s second and third enumerations of error are merit-less.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided October 6, 1988.

Michael S. Meyer von Bremen, for appellant.

Hobart M. Hind, District Attorney, for appellee.


author: Carley, Judge.

text:
    77188.
    MINCHEY v. ZANE et al.
    (374 SE2d 225)
   Carley, Judge.

Appellant-plaintiff brought this medical malpractice action against appellee-defendants Dr. Richard Zane and Roswell OB-GYN, P.C. Appellees answered, denying the material allegations of the complaint, and subsequently filed a motion for summary judgment. The motion was supported by the affidavit of appellee Dr. Zane, wherein he averred that, in treating and caring for appellant, he had utilized the proper standard of care and skill employed by the medical profession generally under similar conditions and like surrounding circumstances. In opposition to the motion, appellant submitted the affidavit of another physician. The only opinion that was ever ultimately expressed by appellant’s expert was merely that the treatment and care afforded to appellant by appellee Dr. Zane had “failed to meet the degree of care and skill ordinarily employed by the medical profession generally under similar conditions and circumstances” and that appellee Dr. Zane’s otherwise unspecified “deviation contributed to the injuries and damages sustained by [appellant].” The trial court granted appellees’ motion for summary judgment, and it is from that order that appellant brings this appeal.

Appellant enumerates the grant of appellees’ motion for summary judgment as error, urging that the affidavit of her expert was sufficient to create a genuine issue of material fact as to appellees’ liability for medical negligence. “[E]xpert opinion in opposition to the defendant’s motion for summary judgment must establish ‘ “the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice.” [Cit.]’ [Cit.]. . . . [T]he plaintiff must produce ‘medical testimony ... to inform the jurors what is a proper method of treating the particular case.’ [Cit.]” Beauchamp v. Wallace, 180 Ga. App. 554, 555 (349 SE2d 791) (1986). “[T]he plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [Cit.] She must state the particulars. She must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. [Cits.]” (Emphasis in original.) Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987). “Appellant’s expert’s [affidavit] did not meet that requirement. Rather than setting out what should have been done and comparing that to what was done, the affidavit merely concluded that appellees’ treatment did not meet the appropriate standard of care. Such an affidavit, failing to establish the parameters of acceptable professional conduct, is not sufficient to carry the burden required of a plaintiff when a defendant has made a prima facie showing of entitlement to judgment. [Cits.] It follows that the trial court’s grant of summary judgment to appellees was not error.” Beauchamp v. Wallace, supra at 555. See also Connell v. Lane, 183 Ga. App. 871 (360 SE2d 433) (1987).

Decided October 6, 1988.

Michael J. Davis, Jr., Taylor W. Jones, for appellant.

Dow N. Kirkpatrick II, Karen L. Abrahams, for appellees.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge. Carley, Judge,

text:
    77195.
    CANTRELL v. THE STATE.
    (374 SE2d 227)
   Deen, Presiding Judge.

The appellant, Deborah Cantrell, was found guilty of a violation of the Georgia Controlled Substances Act. On appeal, she contends that the trial court erred in denying her motion to suppress evidence seized from her residence pursuant to a search warrant.

At the hearing on the motion to suppress, the officer who applied for the search warrant testified that only the affidavit was submitted in support of the warrant. In that affidavit, the officer indicated that a confidential and reliable informant had observed a quantity of marijuana for sale in Cantrell’s residence. The affidavit also specified the basis of the reliability of the informant: “Confidential reliable informant has given affiant information within the past three (3) months which has led to the seizure of marijuana in violation of the Georgia Controlled Substances Act.” At the suppression hearing, however, the officer acknowledged that actually he had never met or received information from the informant before this occasion. Held:

Cantrell moved to suppress the evidence on the basis that, excising the false statement in the affidavit, there was no probable cause to support issuance of the search warrant. In Kelly v. State, 184 Ga. App. 337 (361 SE2d 659) (1987), this court considered a similar attack upon the allegations of the affidavit given in support of the search warrant, and noted that “‘[t]he judicial magistrate is authorized to issue the warrant in all instances where the showing is made under oath and contains facts sufficient to show probable cause. [OCGA § 17-5-21.] It is subject to attack on a motion to suppress evidence on the trial of the case for the reason, among others, that it was illegally executed [(OCGA § 17-5-30)], and proof that the facts sworn to in the supporting affidavit were actually false might well be proof of illegal execution. This was not, however, made a ground of the motion to suppress evidence in the present case .... As against the attack that there was no showing of probable cause the question must be determined as of the time the warrant issued, and nothing here suggests that the issuing magistrate had reason to suspect that certain facts included in the affidavit were untrue. As stated above, there was no attack on the warrant on the ground that it was illegally executed. The motion to suppress evidence was properly denied.’ [Cit.]” Id. at 339. Cantrell’s appeal is controlled by Kelly v. State, supra, adversely to her cause.

Decided October 6, 1988.

Paul S. Weiner, for appellant.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

Carley, Judge,

concurring specially.

I concur with the majority’s conclusion that the trial court did not err in denying the motion to suppress. However, I do not agree with the majority that the appeal is controlled by Kelly v. State, 184 Ga. App. 337 (361 SE2d 659) (1987). Kelly is inapplicable because in this case, the appellant’s motion to suppress adequately and properly addresses the alleged illegality of the search warrant based upon allegedly false statements contained in the affidavit. However, the motion to suppress was correctly denied because the trial court was authorized to find that there was no false statement in the affidavit. A reading of the relevant portions of the motion to suppress transcript indicates that what happened in this case was that the officer who was the affiant and another officer met with the confidential informant and arranged a “controlled buy” from appellant’s residence before the affidavit for search warrant was executed. Thus, the officer could correctly swear at the motion to suppress hearing that he was being truthful when he stated in the affidavit for search warrant that the informant “has given affiant information within the past three (3) months which has led to the seizure of marijuana in violation of the Georgia Controlled Substances Act.” Thus, the evidence supported the finding of the trial court and there was no error in denying the motion to suppress.

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

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.


text:
    77224.
    BRYANT INTERNATIONAL, INC. v. CRANE et al.
    (374 SE2d 228)
   Carley, Judge.

Following its repossession and sale of certain automobiles, appellant-plaintiff filed suit, seeking a deficiency judgment against appellee-defendants. Appellees answered and raised, among their defenses, appellant’s failure to comply with the notice requirement of OCGA § 10-1-36. The trial court granted appellees’ motion for summary judgment and this appeal is from that order.

OCGA § 10-1-36 provides, in relevant part, that “[w]hen any motor vehicle has been repossessed after default in accordance with Part 5 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he forwards by registered or certified mail to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer.” (Emphasis supplied.) Appellant does not contend that it complied with the notice requirement of OCGA § 10-1-36. Instead, appellant urges that, notwithstanding the literal language of OCGA § 10-1-36, its failure to comply with the notice requirement does not prohibit it from recovering a deficiency judgment.

As authority for this proposition, appellant relies upon Emmons v. Burkett, 256 Ga. 855 (353 SE2d 908) (1987). In Emmons, the Supreme Court addressed the notice provisions of OCGA § 11-9-504 (3) and held that a creditor’s noncompliance with those notice provisions will no longer be construed as an absolute bar to the recovery by a creditor of a deficiency judgment against a debtor. “[T]he code provisions concerning a debtor’s default nowhere provide that a lack of notice bars a deficiency judgment or that proper notice is a condition precedent to the bringing of a deficiency action.” Emmons v. Burkett, supra at 858 (2). Appellant urges that, by analogy, a creditor’s failure to comply with the notice provisions of OCGA § 10-1-36 should no longer be construed as an absolute bar to his recovery of a deficiency judgment. However, the provisions of OCGA § 10-1-36 are subject to but one construction. Unlike OCGA § 11-9-504 (3), OCGA § 10-1-36 does specifically provide that a lack of notice bars a recovery of a deficiency judgment. OCGA § 10-1-36, according to its terms, “is cumulative of Part 5 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer, and nothing herein shall be deemed to repeal said part.” Accordingly, Emmons, supra, is neither applicable nor controlling in the instant case, and the trial court correctly granted summary judgment in favor of appellees. See generally Whitley v. Bank South, 185 Ga. App. 896 (3) (366 SE2d 182) (1988); Doughty v. Assoc. Commercial Corp., 152 Ga. App. 575 (263 SE2d 493) (1979).

Decided October 6, 1988.

Robert J. Reed, for appellant.

Troy R. Millikan, for appellees.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77290.
    PATRICK v. GLASS.
    (374 SE2d 229)
    Decided October 6, 1988.

      Lennie W. Jones, for appellant.

      Christopher C. Covey, Monroe Ferguson, for appellee.
    Gilbert Glass, pro se.

   Carley, Judge.

Pursuant to OCGA § 44-7-54 (b), the trial court granted appelleeplaintiff landlord a writ of possession, finding that appellant-defendant had failed to pay the requisite rental payments into the registry of court. Appellant brings this direct appeal from that order. While the grant of a writ of possession is usually a final order which may or may not be directly appealable (see OCGA § 5-6-35 (a) (3)), the record in this case shows that there are other claims which remain pending in the trial court. “Where there is a case involving multiple . . . claims, a decision adjudicating fewer than all the claims ... is not a final judgment. [Cit.] In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) [(cit.)] or there must be compliance with the requirements of OCGA § 5-6-34 (b) [(cit.)]. Where neither of these code sections are followed . . ., the appeal is premature and must be dismissed. [Cits.]” Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677) (1983). Because the appropriate appellate procedure was not followed in this multiple-claim case, the appeal must be dismissed.

Appeal dismissed.

Deen, P. J., and Sognier, J., concur.


text:
    77378.
    PARKER v. THE STATE.
    (374 SE2d 230)
   McMurray, Presiding Judge.

On March 13, 1987, defendant pleaded guilty to two felony offenses — forgery in the first degree and burglary. Thereafter, at the guilty plea hearing, the superior court discussed the imposition of sentence. Defendant’s counsel informed the superior court judge that defendant desired first offender treatment. No immediate ruling was made upon that request. Instead, it was determined that defendant would be placed on probation for five years and be required to make restitution with regard to each offense. Defendant was advised that he was entitled to have the sentences reviewed by the superior court sentence review panel. Then, at the conclusion of the hearing, the superior court informed defendant that it would allow him to have first offender treatment as to both offenses. At no point was defendant advised of the ramifications of first offender treatment by the superior court.

The forms which were used to impose the sentences upon defendant were identical with respect to each felony offense. In pertinent part, they read: “FIRST OFFENDER TREATMENT. WHEREAS, the above-named defendant has been found guilty of the above-stated offense, and WHEREAS, said defendant has not previously been convicted of a felony nor availed himself of the provision of the First Offender Act (Ga. Laws 1968, p. 324). NOW, THEREFORE, the defendant consenting hereto, it is the judgment of the Court that no judgment of guilt be imposed at this time, but that further proceedings are deferred and defendant is hereby sentenced to confinement for the period of_and/or placed on probation for the period of 5 yrs. from this date provided that said defendant complies with the following general and special conditions herein imposed by the Court as part of this sentence; PROVIDED, further, that upon violation of the terms of probation, the Court may enter an adjudication of guilt and proceed to sentence defendant to the maximum sentence provided by law. Upon fulfillment of the terms of probation, or upon release of the defendant by the Court prior to the termination of the period thereof, the defendant shall stand discharged of said offense charged and shall be completely exonerated of guilt of said offense charged .... IT IS THE FURTHER ORDER of the Court, and the defendant is hereby advised that the Court may, at any time, revoke any conditions of this probation and/or discharge the defendant from probation. The probationer shall be subject to arrest for violation of any condition of probation herein granted. If such probation is revoked, the Court may order the execution of the sentence which was originally imposed by committing the offender to the custody of the State Department of Corrections.” (Emphasis supplied.)

Decided October 6, 1988.

E. Earl Seals, for appellant.

On March 11, 1988, following a probation revocation hearing, defendant’s probation was revoked. Thereupon, defendant was adjudged guilty and sentenced to confinement for a period of 10 years for each felony offense.

Defendant sought, and we granted, discretionary review. This appeal followed. Held:

The forms used in sentencing defendant on March 13, 1987, are ambiguous at best. On the one hand, it appears that first offender treatment is granted: The forms provide that no judgment of guilt is being imposed and that the court may sentence defendant to the maximum term upon the violation of probation and an adjudication of guilt. On the other hand, it appears that first offender treatment is not granted: The forms provide that defendant has been found guilty and that upon the revocation of probation the original sentence may be imposed by the court.

“If there is any doubt as to the effect of a criminal sentence the defendant will be given the benefit of such doubt. Buice v. Bryan, 212 Ga. 508 (93 SE2d 676) (1956). An accused is entitled to rely on the provisions set forth in the sentencing document if he is not informed to the contrary when the sentence is imposed. Huff v. McLarty, 241 Ga. 442 (246 SE2d 302) (1978).” Stephens v. State, 245 Ga. 835, 837, 838 (268 SE2d 330). Accord Lillard v. State, 156 Ga. App. 54, 56 (274 SE2d 96).

Defendant was not informed that he could be sentenced to the maximum term authorized by law if he violated probation at the time sentence was imposed. See in this connection OCGA § 42-8-61. Accordingly, defendant was entitled to rely on the sentencing forms. Stephens v. State, 245 Ga. 835, 838, supra.

Resolving any doubt as to the effect of the forms in favor of defendant, Stephens v. State, supra, we must conclude that defendant was adjudicated guilty and sentenced to five years on probation at the time he entered his original pleas. (Our conclusion is bolstered by the fact that defendant was advised he had a right of sentence review at the original hearing. Sentences of five or more years can be reviewed only after conviction and the imposition of sentence. OCGA § 17-10-6.) It follows that the superior court erred in imposing 10-year sentences following the probation revocations. Stephens v. State, supra. See Johnson v. State, 161 Ga. App. 506 (288 SE2d 366).

Judgment affirmed as to the revocation; judgment reversed as to the sentence and the case is remanded for a proper sentence to be entered.

Pope and Benham, JJ., concur.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.


text:
    76581.
    JAMES C. WELCH CONSTRUCTION COMPANY v. QUANTUM GROUP, INC.
    (374 SE2d 232)
   Beasley, Judge.

1. Quantum sued Welch Construction for $7,776, plus IV2 percent interest for services rendered. It alleged that it had been employed at $90 per hour, plus expenses for outside and temporary help, to assist in arbitration of a contract dispute. It also alleged that it worked until Welch Construction told it to stop, that it sent statements to Welch Construction to show the amounts due, and that the latter refused to pay the balance due as claimed. No documents were attached to the complaint showing how the amount sued for was arrived at, nor were there allegations specifying such.

Welch Construction defaulted, and when the court declined to open default, Welch Construction demanded a jury trial on damages pursuant to OCGA § 9-11-55 (a). It claimed it was entitled to such because the damages were unliquidated. Whether they were or were not forms the issue on appeal, for the trial court declined to order a trial and entered judgment for the principal amount claimed plus a certain amount for interest, as calculated to a date prior to judgment.

Quantum’s position is that the complaint shows that this was an open account so that it is not to be considered unliquidated because the Code section provides that: “An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.” So a defaulting defendant would be disentitled to a damages trial even on an open account. Thus Quantum draws the immediate issue more narrowly.

We said in Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 706 (1) (266 SE2d 345) (1980): “Black defines an open account as one ‘which has not been finally settled or closed, but is still running or open to future adjustment or liquidation.’ Black’s Law Dictionary. Georgia law agrees with this definition. See Smith v. Ellington, 14 Ga. 379, 382. The U. S. Supreme Court concurs. See Smith v. Davis, 323 U. S. 111 (65 SC 157, 89 LE 107).” In that case we ruled that the evidence established an open account. Black’s goes on to explain: “Open account, in legal as well as in ordinary language, means an indebtedness subject to future adjustment, and which may be reduced or modified by proof,” citing a Wyoming case. See also Davies v. Turner, 61 Ga. App. 531, 536 (3) (6 SE2d 356) (1939).

The problem is that the complaint does not establish, even with its allegations admitted by virtue of default, that the service provider and its client operated under an open account arrangement. See Hazlett & Hancock &c. Co, v. Virgil Womack &c. Co., 181 Ga. App. 25, 26 (1) (351 SE2d 218) (1986).

Decided October 7, 1988.

Marcus B. Calhoun, Jr., for appellant.

John P. Partin, for appellee.

Nor does it appear from the complaint that the amount was liquidated as between the parties. The complaint does not show that it was an account stated, as in Ale-8-One of America v. Graphicolor Svcs., 166 Ga. App. 506, 508 (7) (305 SE2d 14) (1983), and the fact of default does not render it liquidated. Otherwise in every case where a specific amount is stated in the complaint as due and owing would be turned into a liquidated amount by the default, and the Code section’s provision for trial as to damages involving unliquidated amounts in contract cases would rarely if ever occur. Here, by its tardy answer, defendant has earned the opportunity to contest the amount of damages because it “has placed the damages in issue by filing a pleading raising such issue,” as provided by the Code section.

2. Since the appeal is meritorious, it follows that appellee’s motion for damages for a frivolous appeal must be denied.

Judgment reversed.

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


text:
    76797.
    GRIGGS v. COLUMBUS BANK & TRUST COMPANY.
    (374 SE2d 347)
   Sognier, Judge.

Vernon Griggs brought suit against Columbus Bank & Trust Company alleging that the bank had wrongfully debited $1,500 from his checking account so that numerous checks he had written were dishonored for insufficient funds. The bank answered, denying the allegations, and after discovery, moved for summary judgment. The bank subsequently amended its answer on July 28, 1986, to assert the defenses of release and accord and satisfaction as the result of an alleged settlement between the parties. In its pre-trial order, the trial court granted summary judgment to the bank only as to Griggs’ allegations of fraud, and the case proceeded to trial. Griggs voluntarily dismissed his suit on October 19, 1987, prior to the return of the verdict pursuant to OCGA § 9-11-41 (a). Thirty days after the dismissal, the bank moved pursuant to OCGA § 9-15-14 (e) for imposition of attorney fees and expenses of litigation. The trial court’s December order granting the motion was filed in January 1988 and we granted Griggs’ application for discretionary appeal. (We note that Griggs refiled his suit pursuant to OCGA § 9-2-61 (a) in February 1988.)

OCGA § 9-15-14 (e) provides that “[attorney’s fees and expenses under this Code section may be requested by motion within 45 days after the final disposition of the action.” (Emphasis supplied.) However, it is not necessary to decide here whether a voluntary dismissal under OCGA § 9-11-41 (a) is a final disposition or termination of the suit for the purposes of OCGA § 9-15-14. (But see in context of a counterclaim for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), the cases of Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 116 (351 SE2d 513) (1986); Memorial Med. Center v. Moore, 184 Ga. App. 176 (361 SE2d 49) (1987); Harvey v. Moore, 186 Ga. App. 876 (368 SE2d 784) (1988), cert. granted, Moore v. Memorial Med. Center, 258 Ga. 696 (373 SE2d 204) (1988). Rather, our holding that the trial court erred by granting appellee’s motion for attorney fees and expenses of litigation is based on OCGA § 9-15-14 (a) and (b).

Under OCGA § 9-15-14 (a), attorney fees and expenses of litigation may be awarded where a party has asserted a claim, defense, or other position completely lacking any justiciable issue of law or fact. Under OCGA § 9-15-14 (b), attorney fees and expenses of litigation may be assessed by the trial court where the action brought or defended by a party or attorney lacked substantial justification, or where the action was interposed for delay or harassment, or where the attorney or party unnecessarily expanded the proceeding by other improper conduct.

In its order imposing expenses of litigation pursuant to OCGA § 9-15-14, the trial court found that appellee “avers” a settlement occurred between the parties; that the issue of settlement would have been submitted upon trial of the case for the jury, as the finder of fact, to determine whether or not a settlement had occurred; that appellant was on written notice appellee would bring a motion pursuant to OCGA § 9-15-14 if the jury verdict was $1,500 or less; and that appellant voluntarily dismissed his suit during trial, “thereby depriving [appellee] of having the jury pass on the question of whether or not a settlement occurred.” Based on these facts, the trial court awarded appellee expenses of litigation “incurred after the alleged settlement.”

Although both parties argue at length in their briefs over the facts surrounding the existence of the alleged settlement, the trial court clearly recognized that a sufficient factual controversy existed regarding the settlement to justify submission of the issue to a jury, as indicated both by the trial court’s grant of summary judgment to appellee solely on the issue of fraud in the earlier stages of the litigation, and also by the language in the trial court’s order imposing expenses of litigation. Thus, the grant of appellee’s motion pursuant to OCGA § 9-15-14 was not based on any determination by the trial court that the suit asserted and maintained by appellant demonstrated a complete absence of any justiciable issue of law or fact under OCGA § 9-15-14 (a) and (b) or was “interposed for delay or harassment, or . . . unnecessarily expanded the proceeding by other improper conduct” under OCGA § 9-15-14 (b). Rather, the trial court’s own order reveals that appellee’s motion was granted solely on the basis that appellant voluntarily dismissed his suit during trial.

OCGA § 9-11-41 (a) provides in pertinent part that “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” “A voluntary dismissal under [OCGA § 9-11-41 (a)] is a matter of right and terminates the action. It is not a judgment of the court but it is an order in the case by virtue of the statute.” Page v. Holiday Inns, 245 Ga. 12-13 (262 SE2d 783) (1980).

Assuming the existence of a justiciable issue for jury determination and the absence of any intent to delay or harass or to expand unnecessarily the proceedings, it is self-evident that no plaintiff would exercise his statutory right to dismiss his case voluntarily if he believed the case was proceeding satisfactorily. It is equally self-evident that a plaintiff’s exercise of this statutory right would be particularly irksome to the defendant in the case, who is powerless to abridge the plaintiff’s dismissal in the absence of any pending affirmative relief being sought. The unavoidable result of the use by a plaintiff of the voluntary dismissal statute is to deprive the defendant of having a factfinder pass on the question in issue. Thus, the inescapable conclusion is that the legislative intent behind the enactment of OCGA § 9-11-41 (a) was to afford a plaintiff, faced with a contrary verdict or other untenable position, a second chance to litigate his suit despite the inconvenience and irritation to the defendant.

The trial court here has acknowledged that the case voluntarily dismissed by appellant contains a meritorious justiciable issue for jury determination, and there is no evidence that the dismissal was made for delay or harassment or to expand unnecessarily the proceedings. All appellant has done is dismiss voluntarily his suit pursuant to OCGA § 9-11-41 (a). We do not agree with the trial court that appellant’s exercise of his statutory right can in and of itself subject appellant to penalties under OCGA § 9-15-14 when none of the grounds for imposing those penalties exists. “OCGA § 9-15-14 (a) provides for a mandatory award. The standard of review for this section is the ‘any evidence’ rule. OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” (Footnote deleted.) Haggard v. Bd. of Regents &c. System, 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). Therefore, under both the “any evidence” standard applicable to OCGA § 9-15-14 (a) and the “abuse of discretion” standard applicable to OCGA § 9-15-14 (b), we hold that the trial court erred by awarding appellee expenses of litigation.

Decided October 7, 1988.

Weyman E. Cannington, Jr., for appellant.

William G. Scrantom III, for appellee.

Judgment reversed.

Been, P. J., and Carley, J., concur.


text:
    77057.
    SHIVERS v. THE STATE.
    (374 SE2d 233)
   Sognier, Judge.

Eddie Shivers was convicted of selling cocaine to an undercover officer in violation of the Georgia Controlled Substances Act, and he appeals.

1. Appellant enumerates as error the admission into evidence of the State’s Exhibit 1, a plastic bag containing a piece of cocaine the undercover officer testified he bought from appellant, on the ground that the State failed to establish a chain of custody. The undercover agent, Officer Willie McCoy, testified he purchased a small piece of rock cocaine, known as “crack,” from appellant and immediately wrapped it in a foil gum wrapper and put it in his pocket. Shortly thereafter, Officer McCoy gave the cocaine to Officer Darrell Griffis, who testified he put the evidence in a plastic bag and attached a chain of custody form on which he wrote the date of the sale and the participants’ names. Officer Griffis then sent the plastic bag, along with several other similar bags, to the State Crime Lab by certified mail. The record reveals a crime lab chemist then marked the plastic bag and its attached chain of custody form with identifying data and kept them until the trial.

“Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. [Cit.] The burden is on the State ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cits.] The State need not negative every possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the evidence. [Cit.] ‘(W)hen there is only a bare speculation of tampering [or substitution], it is proper to admit the evidence and let what doubt remains go to the weight.’ [Cit.]” Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).

Decided October 7, 1988.

Clyde M. Urquhart, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, As sistant District Attorney, for appellee.

The evidence adduced at trial established that the cocaine, which was always clearly identified as the piece of crack Officer McCoy bought from appellant, was in the custody of law enforcement officers at all times until it was sent to the crime lab, where it remained until trial. Appellant argues the chain was incomplete because Officer McCoy could not testify definitively that Exhibit 1 was the actual piece of cocaine he bought from appellant, but this argument is without merit because appellant introduced “no evidence to show substitution of or tampering with the evidence.” Williams v. State, 165 Ga. App. 708, 709 (302 SE2d 609) (1983). Thus, the chain of custody was established with reasonable certainty and the trial court did not err by admitting Exhibit 1 into evidence. See Ritter v. State, 163 Ga. App. 158 (1) (293 SE2d 547) (1982).

2. Appellant contends the trial court erred by admitting into evidence a photocopy of the certified mail receipt Officer Griffis retained when he mailed the evidence packet to the crime lab, arguing admission of the exhibit violated the best evidence rule because the witness did not properly account for the absence of the original. Officer Griffis testified he prepared the original receipt and photocopy and took the envelope to the Post Office, and that he had looked for the original on more than one occasion but apparently lost it during a move of his office.

The best evidence rule, which requires the original of a writing to be produced “unless its absence [is] satisfactorily accounted for,” OCGA § 24-5-4 (a), applies only when a writing is introduced to establish the existence or contents of the document, and is not applicable when a party uses the document to prove a fact. Willingham v. State, 134 Ga. App. 603, 606 (3) (215 SE2d 521) (1975). Here, the State offered the certified mail receipt to prove the cocaine was mailed to the crime lab, not to prove the contents or existence of the receipt itself. Accordingly, the best evidence rule did not apply and appellant’s objection was properly overruled. Moreover, the trial court admitted the photocopy only after Officer Griffis established the original was lost and he had searched diligently for it. See OCGA §§ 24-5-2; 24-5-21; see also Mulkey v. State, 155 Ga. App. 304, 306-307 (270 SE2d 816) (1980).

Judgment affirmed.

Deen, P. J., concurs. Carley, J., concurs in Division 1 and in the judgment.


author: Banke, Presiding Judge.

text:
    77326.
    VERSCHAREN v. THE STATE.
    (374 SE2d 349)
   Banke, Presiding Judge.

Mark Verscharen brings this appeal from his conviction of driving under the influence of alcohol. Although the record before us does not contain a copy of the accusation upon which the appellant was tried, it is apparent that a charge of “improper driving on roadway” was also set forth in the accusation but was merged with the driving under the influence charge during sentencing. Verscharen contends on appeal that the trial court erred in denying his pre-trial motion to dismiss the charges against him based on the state’s failure to try him within the next succeeding term of court after he had filed a demand for trial pursuant to OCGA § 17-7-170.

At the time of his arrest, which occurred on August 13,1986, Verscharen was issued a “Georgia Uniform Traffic, Citation, Summons, Accusation” for each of the charges, directing him to appear in the Recorder’s Court of the City of Roswell on September 18, 1986. On that date, he filed in the recorder’s court a “Demand for Trial by Jury,” the body of which stated, in its entirety, as follows: “Now comes Scott Potter (sic) and demands trial by jury in the above-styled case pursuant to his rights under the 6th Amendment of the United States Constitution and OCGA § 17-7-170 there being jurors impanelled and qualified to try said case at this time.” Although the movant was identified as “Scott Potter,” in the body of the demand, the appellant was correctly identified as the defendant in the style of the document, which also correctly referenced the identifying numbers on the uniform traffic citations containing the charges against him.

The case was subsequently transferred to the State Court of Fulton County, where on January 27, 1987, more than two terms after the demand for trial was filed, the appellant filed his motion to dismiss. The trial court denied the motion solely on the ground that “the demand for trial pursuant to OCGA § 17-7-170 filed in this case demands trial for Scott Potter, and not for the [appellant].” The state makes no contention that the demand for trial was deficient in any other respect. Held:

In State v. Prestia, 183 Ga. App. 24 (1) (357 SE2d 829) (1987), this court held that a letter sent to the clerk of the trial court by counsel for the defendant containing a demand for “ ‘trial by jury at this or the next succeeding term of court pursuant to OCGA § 17-7-170’ ” was “clearly sufficient to invoke the extreme sanction of acquittal as provided in OCGA § 17-7-170,” id. at 25, even though the letter also contained a general Brady motion, a demand for copies of all warrants, accusations or indictments pending against the defendant, and a demand for a list of witnesses. While the demand at issue in the present case, unlike the demand in Prestía, did not contain a specific request to be tried within the next succeeding term of court, it did contain a reference to OCGA § 17-7-170, as well as an allegation that there were “jurors impanelled and qualified to try said case at this time.” Accordingly, we conclude that the demand was “ ‘sufficient to put the authorities on notice of [the] defendant’s intention to invoke the extreme sanction of . . . OCGA § 17-7-170. . . Id. at 25, quoting Ferris v. State, 172 Ga. App. 729, 731 (324 SE2d 762) (1984). Certainly, the obvious mistake in naming Scott Potter as the movant in the body of the demand could not have misled the state’s attorney under the circumstances, since the appellant was correctly identified as the defendant in the style of the pleading, and the citation numbers referencing the charges against him were correctly set forth therein. Compare Ferris v. State, supra (where the demand did not identify the charges pending against the defendant by name, date, term of court, or case number). It follows that the trial court erred in denying the appellant’s motion to dismiss in the present case.

This court’s decision in Kramer v. State, 185 Ga. App. 254 (363 SE2d 800) (1987), does not constitute authority for a contrary result. In Kramer, two members of this court, including the writer herein, expressed the opinion that because the Uniform Rules for the State Courts (effective July 1, 1985) require that the “exact nature of the pleading” be identified in the pleading’s caption, a document captioned simply, “Jury Demand,” would not constitute a valid demand for trial under OCGA § 17-7-170, irrespective of the language contained in the body of the document. That decision, however, conflicted with the prior decision of this court in State v. Prestia, supra, wherein the demand for trial was held effective to invoke the sanctions of the Code section even though it was expressed in a letter which bore no caption whatever and which sought to invoke various other rights in addition to the right to be tried within the next succeeding term of court. Because Prestía was a three-judge rather than a two-judge decision, it, rather than Kramer, must necessarily be considered the controlling authority in the case before us. See Court of Appeals Rule 35 (b). Moreover, the demand at issue in this case was not filed in state court but in recorder’s court. Consequently, the Uniform State Court Rules cannot be considered applicable.

Judgment reversed.

Birdsong, C. J., and Beasley, J., concur.

Decided October 7, 1988.

Timothy T. Herring, Steven Harrell, for appellant.

James L. Webb, Solicitor, Patsy Y. Porter, Carmen Smith, Assistant Solicitors, for appellee.


author: Deen, Presiding Judge.

text:
    77375.
    TERRY v. THE STATE.
    (374 SE2d 235)
    Decided October 12, 1988.

      Harold E. Martin, for appellant.

      E. Byron Smith, District Attorney, Thomas R. McBerry, Assis

      tant District Attorney, for appellee.
   Deen, Presiding Judge.

Appellant Terry was convicted of aggravated battery and criminal attempt to commit armed robbery, and received sentences totaling thirty years. After denial of his motion for new trial, based on the general grounds and allegedly newly discovered evidence, he has filed an appeal with this court, enumerating as error the general grounds and the State’s alleged failure to prove an essential element of aggravated battery. Held:

1. Our examination of the entire record, including the trial transcript, reveals that Terry’s assertion of the general grounds is without merit. Construing the evidence in the light most favorable to the verdict, we find that the rational trier of fact would be authorized to find him guilty beyond a reasonable doubt on each charge. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Benson v. State, 172 Ga. App. 135 (322 SE2d 339) (1984).

2. As to the fourth enumeration of error, the trial transcript reveals that the victim’s treating physician, an orthopedic surgeon who was qualified as an expert witness, testified that the shoulder in which he had been shot was seriously and probably permanently damaged. The physician further testified, on cross-examination, that the victim’s prognosis for sufficient recovery to enable him to do even sedentary work was, at best, “guarded.” The victim has thus, by definition, been “deprived” of the use of his shoulder and that “member of his body [rendered] useless” within the contemplation of the relevant statute, OCGA § 16-5-24 (a). There is no merit in appellant’s allegation that the State has failed to prove an essential element of the offense for which he was convicted.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Birdsong, Chief Judge.

text:
    75490, 75491.
    FIRST NATIONAL BANK OF ATLANTA v. STROTHER FORD, INC. (two cases).
    (374 SE2d 203)
   Birdsong, Chief Judge.

This case initially came before us as an appeal from an order of the State Court of Cobb County granting appellee’s motion for summary judgment on its foreclosure of a mechanic’s lien and from the order of said court denying appellant’s personal property foreclosure. In First Nat. Bank v. Strother Ford, 186 Ga. App. 16 (366 SE2d 307), we reversed the judgment of the trial court holding that there exists no “valid debt” as required by the mechanic’s lien statute, OCGA § 40-3-54 (c), as the evidence did not establish that the repairs in question were “ ‘furnished by a contract with the owner or by the authority of the owner.’ ” Id. at 19. The Supreme Court on certiorari reversed our holding in this case, and opined that a mechanic’s lien could be imposed upon a leased vehicle when the terms of the lease imposed upon the lessee a duty to maintain the vehicle, as the responsibility to maintain the automobile inherently entails the authority to contract for necessary repairs. Strother Ford v. First Nat. Bank, 258 Ga. 319 (368 SE2d 489). On July 11, 1988, we issued an opinion in this case remitting it to the trial court with the trial court’s judgment affirmed. On July 21, 1988, appellant filed a motion for rehearing. That motion is granted and our opinion of July 11, 1988, is substituted. The facts of this case are recited in our original opinion. First Nat. Bank v. Strother Ford, supra. Held:

1. Appellant asserts that it has a valid and enforceable security interest in the vehicle, which is superior to the appellee’s claimed mechanic’s lien. OCGA § 40-3-54 (a) pertinently provides that “[s]uch special [mechanics’] lien shall be superior to all liens except for . . . security interests of which the mechanic had actual or constructive notice before the work was done [and the] material furnished.” Compare General Elec. Credit Corp. &c. v. Capital Ford Truck Sales, 164 Ga. App. 468 (298 SE2d 159) with Atlanta Truck Svc. v. Assoc. &c. Corp., 146 Ga. App. 170 (2) (246 SE2d 2).

At the time of the alleged repairs and thereafter, appellant was the holder of a certificate of title on the subject vehicle denominating it as the owner thereof. Appellant maintains, relying upon In re Load-It, 774 F2d 1077 (CA 11th 1985), that it had thus acquired an adequately perfected security interest, “by issuance of a [motor vehicle] title certificate denominating the lessor [appellant] as owner.”

“A ‘security interest holder’ in a motor vehicle is a ‘holder of an interest in a vehicle reserved or created by agreement and which secures payment or performance of an obligation.’ ” Wooten v. G. M. H. Auto Sales, 187 Ga. App. 331, 333 (370 SE2d 165); OCGA § 40-3-2 (15); see also OCGA § 11-9-105 (m). A “ ‘security interest’ ” in a motor vehicle, and within the meaning of the Motor Vehicle Certificate of Title Act, is “an interest in a vehicle reserved or created by agreement which secures the payment or performance of an obligation, such as a conditional sales contract, chattel mortgage . . . and the like. This term includes the interest of a lessor under a lease intended as security.” (Emphasis supplied.) OCGA § 40-3-2 (14); see OCGA § 11-9-102 (2). Thus, mere holding of title as a lessor of a leased motor vehicle does not give rise to a security interest therein, unless the interest arose under a lease intended as security. Woods v. Gen. Elec. &c. Lease, 187 Ga. App. 57 (1) (369 SE2d 334).

We believe that In re Load-It, supra, correctly interprets the law of this state in those situations where the lessor is recorded as the vehicle owner on the certificate of title of a motor vehicle that is leased under a lease agreement intended as security. Accordingly, we must determine whether the lease agreement in this case is in fact a disguised security transaction or a classic lease.

Whether a lease is intended as a security is to be determined by an analysis of the lease terms in each particular case. Woods, supra at 58; Mejia v. C & S Bank, 175 Ga. App. 80, 81 (332 SE2d 170). Considering the factors found relevant in Woods, Mejia and Ford Motor Credit Co. v. Dowdy, 159 Ga. App. 666 (284 SE2d 679), we conclude that the lease in the case sub judice was not intended as security. Among those matters considered is the fact that the end of lease option price is neither a substantially reduced or nominal price, rather it mirrors the estimated end of term wholesale value of the vehicle of $5,850. Further, in Item 8G of the agreement, the parties have left blank that portion of the clause wherein the lessor could have listed the type of security interest reserved and retained in the leased property. This omission clearly is consistent with an intent of the contracting parties that no such security interest was to be reserved.

We find that this case is distinguishable from the operative facts of In re Load-It, and conclude that appellant was not a secured party and did not possess any security interest within the meaning of either OCGA §§ 11-9-105 (m) and 40-3-2 (14). Accordingly, the trial court did not err in its order filed January 20, 1987, when it found that “the BANK is the owner of the vehicle. It is not the holder of any security interest superior to that of STROTHER’s mechanic’s lien.”

2. Appellant, having entered a classic lease agreement not intended as a security, is deemed to have initiated its personal property foreclosure action pursuant to the authority of OCGA § 44-14-230 (b) (2). Appellant’s status in this type of proceedings is not that of a secured party per se, but rather is that of one treated like a secured party for a very limited purpose. OCGA § 44-14-230 (b) (3) pertinently provides that “[s]olely for the purpose of applying the procedures specified by this part to rental transactions and not for any other purposes, the owner of the property shall be considered to be a secured party and the rented or leased property shall be considered to be secured property.” (Emphasis supplied.) Thus, appellant, merely by initiating a foreclosure action under OCGA § 44-14-230 (b), did not thereby acquire any status as a secured party for purposes of obtaining a priority over the holder of a prior validly perfected mechanic’s lien. Moreover, in view of the holding of the Supreme Court, Strother Ford, supra at 319, together with the provisions of OCGA § 40-3-54 authorizing that “[t]he (mechanics’) lien may be perfected by retention of the vehicle,” we are satisfied that the facts of this case support the trial court’s finding that “STROTHER holds a valid and enforceable mechanic’s lien.” For reasons hereinafter discussed, we also find that Strother did not relinquish possession of the vehicle, in any manner that would terminate its mechanic’s lien.

3. Appellant argues that the trial court committed error by failing to conduct a “full hearing on the validity of the debt” as required by OCGA § 40-3-54 (4).

In view of the holding of the Supreme Court, Strother Ford, supra at 319, we are satisfied that the facts of record support the trial court’s finding in the foreclosure action that a valid and enforceable mechanic’s lien existed in the amount of $2,730.84. This determination inherently included the determination that a “valid debt” existed in the same amount within the meaning of OCGA § 40-3-54.

The record also reflects that appellant petitioned for a probable cause hearing, under OCGA § 40-3-54 (c) (2) and (3). The hearing was held on November 24, 1986, with the consent of all parties. This hearing involved Strother’s motion to intervene in the bank’s foreclosure action, a probable cause hearing on Strother’s mechanic’s lien action, and a hearing on the bank’s foreclosure action. During the hearing, the parties entered several stipulations, including stipulations that the bank was owner of the vehicle, Strother repaired the vehicle, and the repairs were in the amount of $2,730.84. Following the hearing, the trial court took the issues under advisement, and directed the bank and Strother to submit their letter briefs by December 5, 1986, and December 12, 1986, respectively. On January 20, 1987, the trial court issued its order and judgment, which pertinently ruled in favor of appellee Strother “on the ‘reasonable cause’ question.” On Monday, January 26, 1987, appellant filed its petition for final hearing under the provisions of OCGA § 40-3-54 (c) (4).

OCGA § 40-3-54 (c) (4) expressly provides that “[w]ithin five days of the probable cause hearing, a defendant must petition the court for a full hearing on the validity of the debt if a further determination of the validity of the debt is desired. If no such petition is filed, the lien on the amount determined reasonably due shall be conclusively deemed a valid one and foreclosure thereof allowed.” (Emphasis supplied.) This statute requires that the petition be made within five days of the hearing and makes no provision for the late filing of a petition after receipt of a delayed ruling. Whatever period of time a hearing might encompass, it does not include that period of time after all evidence has been introduced when the trial judge has taken the litigated issues under advisement. Accordingly, appellant’s petition for a “full hearing” under OCGA § 40-3-54 (c) (4) was not timely filed and his right to such a hearing was therefore waived; and, the trial court’s determination as to the existence of a valid mechanic’s lien in favor of Strother in the amount of $2,730.84 became conclusive by operation of law.

Moreover, assuming error had occurred in failing to provide appellant with a “full hearing” under OCGA § 40-3-54 (c) (4), we are satisfied, beyond a reasonable doubt, based on the current posture of the record that any such failure, albeit involving a potential issue of procedural due process, was harmless. See Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38), cert. den.; LaRue v. State, 137 Ga. App. 762 (2) (224 SE2d 837).

Accordingly, we find appellant’s assertion to be without merit. In the future the harsh effects of the statute can be avoided, in the absence of legislative modification, by timely petitioning for a “full hearing” within five days of the conclusion of the “probable cause” hearing, and without awaiting the issuance of a ruling as to matters taken under advisement by the trial court.

4. Appellant asserts that the trial court erred in finding that Strother had not released possession of the vehicle, thereby extinguishing its mechanic’s lien, when it left it at the business of Chuck Clancy Ford, Inc.

The vehicle was taken to appellee Strother for repairs by the lessee. When the repair bill was not paid, appellee asserted its mechanic’s lien “by retention of the vehicle.” See generally OCGA § 40-3-54 (a). Thereafter, the major assets of Strother Ford were sold to Chuck Clancy Ford. Those assets being sold were so stipulated in a contract of sale and did not include the sale of certain vehicles including the vehicle in question. In fact, the vehicle was identified “as being one of [Strother’s] vehicles as of a mechanic’s lien.” After the sale, Strother Ford stored the vehicle on the same premises. Harvey Strother owned this premises and leased it to Chuck Clancy Ford. Chuck Clancy Ford has never asserted any claim as to ownership or any other kind of interest in the vehicle, and has never disputed Strother’s control over the vehicle. Both Strother and Chuck Clancy Ford consented to the continued storage of the vehicle on the premises. The parties stipulated that the vehicle remained at the same location during these transactions that deal with it.

OCGA § 40-3-54 (a) provides that a mechanic’s lien can be asserted by retention of the vehicle; it is silent, however, regarding the effect of any subsequent relinquishment of possession of the liened property by the lienholder. This appears to present an issue of first impression.

A lien asserted under the authority of OCGA § 40-3-54 is a statutory mechanic’s lien; however, when the lien is perfected by the mechanic’s retention of the vehicle, it becomes a statutory lien whose vitality is dependent on the continuation of that retention. As a general rule of law, a statutory lien dependent on possession “is waived or lost by the lienholder voluntarily and unconditionally parting with possession or control of the property to which it attaches.” (Emphasis supplied.) 53 CJS, Liens, § 22; 51 AmJur2d, Liens, §§ 21, 42. However, “[t]he lien is not waived or destroyed . . . except as to third persons, where there is an intention to preserve the lien, the lienholder only conditionally parting with the property ... or where [the lienholder] delivers [the property] to an agent, servant or trustee to hold for his benefit and subject to his lien.” 53 CJS, Liens, § 22.

Pretermitting the question of whether Chuck Clancy Ford exercised some right of possession over the vehicle as a depository bailee of appellee Strother or merely some right of custody thereover, see generally, 8 AmJur2d, Bailments, §§ 79 and 81, is the question of whether appellee Strother unconditionally parted with its possession of the vehicle by its conduct.

In the case sub judice, appellee Strother at most only conditionally parted with possession of the vehicle for the purposes of providing for its continued storage as property subject to lien. Both Chuck Clancy Ford and appellee Strother consented to such a storage arrangement and thereafter conducted themselves toward the property in a manner consistent therewith. Accordingly, we find that appellee Strother neither lost nor waived its lien as it did not unconditionally part with possession or control of the lien property.

Moreover, we are satisfied that under the existing circumstances, appellee Strother has substantially complied with the requirements of OCGA § 40-3-54. OCGA § 1-3-1 (c).

Appellant’s other assertions of error are without merit.

Accordingly, we remit the case below with the trial court’s judgment affirmed.

Judgment affirmed.

Been, P. J., and Pope, J., concur.

Decided July 11, 1988

Rehearing denied October 13, 1988.

Stephen J. Knezo, for appellant.

Toby B. Prodgers, for appellee.