text:
    A89A0235.
    A89A0268.
    DOVER v. THE STATE. BARNES v. THE STATE.
    (385 SE2d 417)
   Beasley, Judge.

Dover and Barnes appeal their convictions for multiple offenses.

The Cagle family, Jimmy Lewis Cagle, his wife, Mary Elaine Cagle, and their son and daughter, Jimmy Lewayne Cagle and Lisa Cagle Reid, were charged along with Dover, Barnes and six others in Floyd County with violations of the Georgia RICO Act, OCGA § 16-14-1 et seq. This arose from a string of arsons allegedly solicited by Dover, Barnes, and the six others and carried out by the Cagles assisted by Larry Reid, Lisa’s husband, named as an unindicted co-conspirator. All defendants except Dover and Barnes pled guilty to various offenses and testified against them.

Favorably to the verdict, the evidence showed that Barnes solicited the Cagles to burn the house in Floyd County where he lived and agreed to pay them. He assisted his daughter, to whom he had previously deeded the house, in submitting a claim to the insurance company.

Dover owned a Polk County trailer park where the father of Jimmy Lewis Cagle resided. Reid and Lisa wanted to purchase a trailer from Dover. He agreed to lower the price of the trailer and move it to Rome if they would torch a trailer resided in by McAl-lister, a tenant with whom he was having a dispute. After the fire, Dover made an insurance claim but discovered that the policy had not been renewed. He spoke by phone with Jimmy Lewis Cagle who advised him to get the number off an insured trailer and put it on the uninsured one. Dover did so and collected on the insurance.

The RICO count alleged that the defendants “did endeavor to acquire and maintain, directly and indirectly, and did acquire and maintain, directly and indirectly, an interest in and control of real property, personal property and money, . . . through a pattern of racketeering activity consisting of arson, false statements, . . . and mail fraud . . .’’as more fully set out in the indictment.

The following predicate acts were alleged against Barnes and Dover in the RICO count:

Dover: (1) arson in the first degree by soliciting the burning of the McAllister trailer, (2) making false statements to fire officials that McAllister and her boyfriend burned the trailer, and (3) committing mail fraud, 18 USC § 1341, an offense defined as racketeering activity, by devising a scheme to defraud the insurance company of money and causing the mails to be used in furtherance of that scheme.

Barnes: (1) arson in the first degree by soliciting the burning of his daughter’s house and (2) that Barnes committed mail fraud, 18 USC § 1341, an offense defined as racketeering activity, by devising a scheme to defraud her insurance company of money and causing the mails to be used in furtherance of that scheme.

Substantive offenses were also charged:

Dover: Count IV, arson OCGA § 16-7-60 (also a predicate act); Count XII, making a false statement in matters within the jurisdiction of state and political subdivisions, OCGA § 16-10-20 (also a predicate act); Count XVII, making a false insurance claim, OCGA § 33-1-9.

Barnes: Count VII, arson OCGA § 16-7-60 (also a predicate act); Count XX, making a false insurance claim, OCGA § 33-1-9.

At the close of the State’s case, the court granted directed verdicts to Barnes on Count XX and to Dover on Counts IV and XII.

Dover was found guilty of Count I, RICO, and Count XVII, making a false insurance claim. Barnes was found guilty of Count I, RICO, and Count VII, arson.

Case No. A89A0235

1. Dover enumerates the failure of the court to grant his motion for directed verdict on the RICO count. The enumeration claims the evidence was insufficient as to proof of a pattern and as to proof that Dover was a member of an enterprise.

Georgia’s RICO act, while it has similarities to the federal RICO statute, has a number of significant differences.

“The Georgia RICO statute is significantly broader than its federal counterpart in that OCGA § 16-14-4 (a) makes it unlawful for any person through [a pattern of racketeering activity or] proceeds derived from a pattern of racketeering activity to acquire or maintain any real property, or personal property of any nature, including money. In contrast, the federal RICO statute, 18 USC § 1962 (a), only targets investors who participate in the pattern of racketeering activity as a principal. See, ‘Georgia Racketeer Influenced and Corrupt Organizations Act,’ 20 Ga.BarJ. 34 (1983). And, 18 USC § 1962 (b) only makes it unlawful for any person through a pattern of racketeering activity to acquire or maintain any interest in or control of an enterprise; the federal statute does not contain a proscription against the acquisition of real and personal property, including money, which is not part of the enterprise. ... 18 USC § 1962 (c), and . . . OCGA § 16-14-4 (b), are similar in that the . . . core provisions both make it unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity. In one respect, the Georgia RICO statute is narrower than the federal statute, in that OCGA § 16-14-3 (2) defines ‘pattern of racketeering activity’ as ‘at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, . . . .’ The federal RICO statute, of course, requires a connection between the racketeering activity and the enterprise, but it does not on its face require any interrelatedness between the predicate crimes themselves. See United States v. Elliott, 571 F2d 880, 899, note 23 (5th Cir. 1978).” Chancey v. State, 256 Ga. 415, 418 (349 SE2d 717) (1986). (Indention omitted).

The Supreme Court in Chancey, supra at 427 (4), upheld the act against a claim that it was unconstitutional due to vagueness and overbreadth.

As quoted above, the indictment here was framed only as a violation of OCGA § 16-14-4 (a), which does not require that there be proof of an “enterprise,” but only that the accused “through a pattern of racketeering activity or proceeds derived therefrom, . . . acquire or maintain, directly or indirectly, any . . . , real property or personal property of any nature, including money.” Dover received $6,000 in insurance proceeds. There was no requirement that an enterprise or Dover’s association with it be proven and the failure to do so was not error.

Dover argued below that the pattern requirement had not been met because, although several crimes had been alleged as predicate acts, they all arose from “one incident,” i.e., the burning of the trailer and obtaining insurance proceeds as a result, and such an incident was never meant to be covered by Georgia’s RICO act. His argument is premised on the discussion of the federal act’s “pattern” requirement contained in various circuit court cases applying Sedima v. Imrex Co., 473 U. S. 479 (105 SC 3275, 87 LE2d 346) (1985), which focused on a requirement of “continuity” to establish a pattern. Sedima, supra at 496, fn. 14.

Although they do not control construction or application of the state RICO statute, federal circuit court opinions regarding the federal statute are instructive. The Fourth, Seventh and Eighth Circuits have held that a single fraudulent scheme, regardless of the number of crimes and predicate acts contained in it, will not constitute a pattern for federal RICO purposes. Intl. Data Bank v. Zepkin, 812 F2d 149, 154 (4) (4th Cir. 1987); Lipin Enterprises v. Lee, 803 F2d 322, 324 (7th Cir. 1986); Superior Oil v. Fulmer, 785 F2d 252 (8th Cir. 1986). The Fifth Circuit, however, has held that two related acts may be sufficient to form the required pattern, while the Eleventh Circuit also requires a showing of a threat of continuity. Bank of America &c. v. Touche Ross &c., 782 F2d 966, 970 (6) (11th Cir. 1986); R.A.G.S. Couture v. Hyatt, 774 F2d 1350, 1355 (7) (5th Cir. 1985). The Eighth Circuit position has been rejected as to federal RICO in H. J., Inc. v. Northwestern Bell Tel. Co.,_U. S._(57 USLW 4951) (June 26, 1989), which held that “[w]hat a plaintiff or prosecutor must prove is continuity of racketeering, or its threat, simpliciter.” Id. at 4954.

Dover urges the adoption of the former approach, but that approach ignores the differences between the federal and Georgia statutes. OCGA § 16-14-3 (2) defines “pattern of racketeering activity” as engaging in “at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents . . . .” The Georgia statute requires the interconnectedness not contained in the wording of its federal counterpart.

Because of this difference, our legislature intended to and did, by virtue of OCGA §§ 16-14-4 (a) and 16-14-3 (2), subject to the coverage of our RICO statute two crimes, included in the statute as designated predicate acts, which are part of the same scheme, without the added burden of showing that defendant would continue the conduct or had been guilty of like conduct before the incidents charged as a RICO violation. See United States v. Martino, 648 F2d 367, 402 (93) (5th Cir. 1981), discussed in “Georgia Racketeer Influenced and Corrupt Organization Act,” supra at 35.

Dover’s additional argument, that the federal violation of mail fraud was not properly included by reference in the Georgia statute, was not presented below and will not be considered here for the first time. Cooper v. State, 188 Ga. App. 297 (1) (372 SE2d 679) (1988).

2. Dover’s fourth enumeration contends that the court erred in failing to grant his motion for directed verdict on the RICO count due to the State’s failure to prove venue in Floyd County.

OCGA § 16-14-11 provides that “[i]n any criminal proceeding brought pursuant to this chapter, the crime shall be considered to have been committed in any county in which an incident of racketeering occurred or in which an interest or control of an enterprise or real or personal property is acquired or maintained.” “Racketeering activity” consists of any of the predicate acts defined in OCGA § 16-14-3 (3) (A).

The predicate acts alleged against Dover were mail fraud, arson, and making a false statement to the fire investigator concerning the arson. He was also charged for the same activities with the substantive violations of arson, false statement to the investigator, and insurance fraud (the latter is not included in the RICO statute as a predicate act). At the close of the State’s case, a verdict of acquittal was granted to Dover on the arson and false statement charges, on the express bases that the State failed to prove venue as to both charges and the State failed to prove the false statement. Although as part of the pattern of racketeering activity the arson could still be considered on the RICO charge, venue as to RICO must be sought elsewhere, specifically, where the mail fraud charge could be prosecuted.

Offenses under 18 USC § 1341, mail fraud, may be tried only in the federal district from which, to which, or through which the items were mailed. 18 USC § 3237; United States v. Martino, supra at 400 (82) & (83). Section 3237 is similar to OCGA § 17-2-2 (h). Venue under Georgia’s RICO act which is premised upon a predicate act of mail fraud can be placed only in counties from which, to which, or through which such mailings occurred. There was no evidence of any mail as alleged in the mail fraud predicate act from, to, or through Floyd County. In fact, the predicate act of mail fraud as to Dover is alleged by the State to have occurred in Polk County.

There was no proof of venue as to Dover in Floyd County on the mail fraud predicate act. The only evidence is one phone call made by Cagle from Floyd County to Dover in Polk County in which Cagle advised Dover to alter the serial numbers on the burned trailer in order to get the insurance paid. As far as the mail fraud predicate act is concerned, this is unavailing since venue of that is premised on the use of the mails, which admittedly did not occur in Floyd County.

Dover’s conviction as to Count I is reversed. No challenge to venue was made below as to Count XVII, the fraudulent insurance claim. That conviction is affirmed, there being sufficient evidence as to venue on that count. Co-conspirator Cagle phoned Dover from Floyd County and discussed how to alter the number on the Celebrity trailer, which was not insured, to make it appear to be the insured Pacemaker. After Dover notified the insurance company that there was a question concerning which trailer was destroyed, the claim was assigned to an independent adjuster in Floyd County (Rome) for investigation. He went from Floyd County to Polk County on two occasions to inspect the burned out trailer. He found the altered serial number on the second trip and left the proof of loss form with Dover for completion. He made a third trip to re-inspect all of the trailers. As a result of the adjuster’s investigation and report, the insurer in Atlanta paid Dover’s claim.

This evidence was sufficient. OCGA § 33-1-9 (b); Jones v. State, 245 Ga. 592, 596 (2) (266 SE2d 201) (1980); Davis v. State, 181 Ga. App. 28 (1) (351 SE2d 458) (1986).

3. The decision in Division 2 makes consideration of Dover’s remaining enumerations unnecessary.

Case No. A89A0268

4. Barnes’ first enumeration is based on his adoption of Dover’s motion for directed verdict on the RICO count as discussed in Division 1 of this opinion, which is controlling here. He also contests the sufficiency of the evidence as to arson.

Barnes contended that he had nothing to do with the arson, while the Cagles and Reid said he did. The physical evidence as found by the fire investigator supported their version of the fire and the primary issue became credibility, a jury issue. OCGA § 24-9-80. The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Prior to the pleas of guilty of all co-defendants except Dover, Barnes filed a motion for severance, the denial of which he enumerates as error. The only ground of the motion enumerated is that failure to sever his case from Dover’s created insurmountable difficulty and confusion for the jury. The denial of a motion to sever defendants pursuant to OCGA § 18-8-4 is a matter within the sound discretion of the trial court and its ruling will not be disturbed absent a clear abuse of such discretion. Rivers v. State, 178 Ga. App. 310, 311 (2) (342 SE2d 781) (1986): “In exercising its discretion, the trial court should consider ‘whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against another defendant despite cautionary instructions to the contrary; and whether the co-defendants will press antagonistic defenses.’ [Cit.]” See also Glover v. State, 188 Ga. App. 330, 331 (373 SE2d 39) (1988). No such abuse has been demonstrated. The court instructed the jury to separately consider the evidence as to each defendant, and their defenses were consistent. Both denied any involvement and attacked the veracity and self interest of the Cagles and Reid.

6. The fourth and sixth enumerations claim error in the admission of bank records and “tax records” as improperly placing Barnes’ character into evidence, apparently on the basis that the evidence implied a failure to file a tax return. No tax records, however, were admitted due to the State’s inability to properly authenticate them. Barnes testified without contradiction that he did file a return for 1986 and it reflected all of his income. No impropriety is shown.

As to the bank account records, no such objection will be considered here for the first time. Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980). The same applies to questions asked by the court regarding the tax records.

7. Barnes’ fifth enumeration alleges error in the court’s allowance of certain questions asked by the State of Barnes’ witness. He had testified that he had known Barnes since Barnes’ childhood, his reputation was good, including his reputation for honesty, and he would believe him under oath. Before cross-examination, the State out of the presence of the jury advised defendant Barnes and the court that it intended to ask the witness if he knew of certain criminal charges and an allegation made against Barnes by Larry Reid in his diary that Barnes and Cagle had been involved in the purchase of stolen motorcycles. The purpose was to challenge the basis for the witness’ testimony that defendant’s reputation was good. During the recess, the State fetched its file.

Defendant objected to the questioning on the ground that there were no convictions on these charges or proof that the crimes had actually occurred, the charges had been dismissed, and additionally as to the allegation regarding involvement in the purchase of stolen motorcycles, it was not even acted on by any law enforcement agency and there was no evidence the allegation was true. The gist of the objection was that there was no evidence the crimes had occurred. The court denied the objections and overruled the anticipatory motion for mistrial.

When the jury returned, the State established that the witness as to Barnes’ good character was not aware that Barnes was charged in 1979 with two counts of bad checks, or that in 1982 he was charged with seven counts of theft by receiving, or that Larry Reid had made a statement that Barnes and Cagle were involved in the purchase of stolen motorcycles.

On appeal, Barnes cites Clark v. State, 186 Ga. App. 106, 109 (6) (366 SE2d 361) (1988), for the proposition that since the Reid allegation and the earlier criminal charges remained unproved as to actual occurrence, the questions to the witness were improper. As here, the questions in Clark were aimed “to determine the basis of the witness’ testimony . . . .” Id. at 110. Regarding the charges referred to and the fact there were no convictions, it is not only convictions but, as quoted in Clark, also charges about which inquiry may be made, see Whatley v. State, 131 Ga. App. 320 (2) (205 SE2d 517) (1974); Nassar v. State, 253 Ga. 35, 36 (4) (315 SE2d 903) (1984), as well as arrests. Montgomery v. State, 173 Ga. App. 570, 572 (3) (327 SE2d 770) (1985); Richardson v. State, 177 Ga. App. 48, 49 (2) (338 SE2d 506) (1985). The State may cross-examine defendant’s good-character witness as to his knowledge of defendant’s specific acts of misconduct. Moulder v. State, 9 Ga. App. 438 (71 SE 682) (1911). See Green, Ga. Law of Evid., 3d ed., 1988, § 65.

Assuming that adequate proof of the charges was presented, as apparently acknowledged by defendant Barnes during argument and redirect examination on the issue, we find, however, no admissible evidence of the allegations supposedly contained in Reid’s diary. In fact, except for the prosecutor’s statement that Reid’s allegations were contained in such a diary, which was never produced in court, nothing going to the foundation for these questions was offered. Reid never alluded to them during his testimony.

While the State is allowed on cross-examination of a character witness to ask if the witness has heard that defendant had been accused of or convicted of other crimes, it may not do so without making an offer of proof as to these arrests, convictions, and uncharged specific “bad acts.” Nassar v. State, supra; Clark v. State, supra at 110 (6); Simmons v. State, 168 Ga. App. 1, 4 (5) (308 SE2d 27) (1983); Whatley v. State, supra; see Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988).

Decided July 3, 1989

Rehearing denied July 25, 1989

Gammon & Anderson, Wayne W. Gammon, W. Wright Gammon, Jr., for appellant (case no. A89A0235).

Barkley & Garner, Larry J. Barkley, for appellant (case no. A89A0268).

Stephen F. Lanier, District Attorney, Harold Chambers, Assistant District Attorney, for appellee.

Moreover, it was so unlikely that the community would have knowledge of the contents of the Larry Reid diary so as to constitute a basis for Barnes’ reputation or the witness’ knowledge of reputation, that we cannot say that the question was a proper one to determine the basis of the witness’ testimony. Thus it was irrelevant to the purpose for which it was ostensibly asked. Since it was obviously inflammatory and prejudicial, we must reverse on the basis of the principles discussed in Hudson v. State, 163 Ga. App. 845, 848 (4) (295 SE2d 123) (1982). The cross-examination in this regard “must be limited to matters that will be supported by admissible evidence.” Clark, supra at 110.

Thus, the allowance of these questions without the proffer of proof was error.

8. The ruling in Division 7 makes consideration of the remaining enumerations unnecessary.

Judgment affirmed in part and reversed in part in Case No. A89A0235. Judgment reversed in Case No. A89A0268.

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


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    A89A0313.
    SCRETCHEN v. THE STATE.
    (385 SE2d 115)
   Benham, Judge.

Appellant was convicted of burglary. On appeal, he complains of the denial of a motion to suppress, of the trial court’s refusal to give a requested jury charge, and of the insufficiency of the evidence.

1. In support of his enumeration of error concerning the denial of his motion to suppress, appellant argues in essence that his arrest was illegal. We disagree.

The arresting officer testified that, on the day of the arrest, he first saw appellant walking empty-handed in a residential area in which there had been a number of daytime burglaries, then saw appellant again 35 minutes later, walking in a direction which would take him out of the residential area. At the second sighting, appellant was carrying a hedge trimmer in one hand and a black box in the other; an electric drill was protruding from a jacket pocket; and a camera in a case was hanging around his neck. The officer stopped appellant, asked for identification, and received a driver’s license. He recognized appellant’s name as having appeared on reports filed by area pawn shops. When asked about the items he was carrying, appellant responded that they were his; that he stored them at a house nearby; that the hedge trimmer was for yard work; and that the drill was for occasional carpentry. Appellant made no explanation when asked what use he had for the camera. The officer testified at trial that the suspicions he had when he saw appellant carrying the diverse objects were deepened by appellant’s lack of explanation about the camera. He then opened the camera and found a name other than appellant’s imprinted therein. Appellant had no explanation for that name being in the camera case. The officer testified that he placed appellant in custody at that time and transported him to the location where appellant claimed that he kept the items he was carrying. Given the fact that the police officer had seen appellant empty-handed a few minutes earlier and that the area had suffered several daytime burglaries, we have no hesitation in ruling that the officer’s initial stop of appellant was valid. Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986).

There can be no serious question that appellant was arrested at the time he was put into the police car. “The test for determining whether a person is ‘in custody’ ... is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. [Cit.]” Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989). Here, appellant was, in the officer’s own words, taken into custody when he did not satisfy the officer’s inquiries concerning the camera. The officer had already taken appellant’s driver’s license and was retaining it. It is clear, as a matter of law, that the detention was more than a mere brief stop to check identity and maintain the status quo while making inquiries; that occurred before the officer took appellant into custody. The question that remains is whether the officer had probable cause to arrest at that time.

At the time the officer placed appellant under arrest he knew that appellant claimed ownership of the items he was carrying; that he had no answer when asked about his use for the camera; that the camera had a name on it that was not appellant’s; that appellant had no explanation at all for the fact that the name on the camera was not his; and that appellant’s name had appeared on pawn shop reports. We are persuaded that the information the officer had at the time of the arrest amounted to more than a mere suspicion; it constituted probable cause to arrest. See Minor v. State, 180 Ga. App. 869 (1) (350 SE2d 783) (1986), where inconsistencies between the suspects’ explanations and the observable facts, plus suspicious circumstances and the refutation of part of the explanation, added up to probable cause. The arrest being legal, we find no error in the denial of appellant’s motion to suppress.

Decided July 12, 1989

Rehearing denied July 25, 1989

James A. Yancey, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assis tant District Attorney, for appellee.

2. Appellant’s defense was that he had found the items he was carrying in a trash pile on the street, in the same way that he had found several other items which he had recently pawned and which turned out to belong to the same person who owned what appellant was carrying when he was arrested. He requested a charge that possession of property abandoned on public land does not constitute a crime, and enumerates as error the trial court’s refusal to give the charge. Since the statement of law in the charge is correct in that gathering abandoned property is lawful (Darden v. State, 165 Ga. App. 739 (2) (302 SE2d 425) (1983)), and since the requested charge is adjusted to the evidence and not argumentative, and was not adequately covered in the charge as a whole, it was error for the trial court to refuse to give the charge. Redding v. State, 214 Ga. 524 (4) (106 SE2d 5) (1958).

3. Appellant also contends on appeal that the evidence was not sufficient to warrant his conviction. We disagree. The evidence authorized the jury to find that appellant was in possession of recently stolen goods, that his explanation for that possession was inconsistent with other evidence, and that appellant had recently pawned other items stolen from the same place. That evidence was sufficient to authorize a rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Myles v. State, 186 Ga. App. 817 (2) (368 SE2d 574) (1988).

Notwithstanding the sufficiency of the evidence to convict and the correctness of the denial of appellant’s motion to suppress, the trial court’s error in refusing to give appellant’s requested charge on abandoned property requires reversal of the conviction.

Judgment reversed.

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


text:
    A89A0367.
    SANDERS v. GEORGIA-PACIFIC CORPORATION.
    (385 SE2d 101)
   Benham, Judge.

In the third appearance of this workers’ compensation case before this court, claimant Sanders’ application for discretionary appeal was granted to review the affirmance by the superior court of the award of the State Board of Workers’ Compensation of three weeks total disability benefits arising from a job-related injury. In the first appeal, Georgia-Pacific Corp. v. Sanders, 171 Ga. App. 799 (320 SE2d 850) (1984), we held that a finding of a change in condition was authorized by the evidence and remanded the claim “for determination of income benefits, if any, due [Sanders] as a result of his change in condition.” Id. at 804.

In compliance therewith, a hearing was held in May 1985, after which “the [ALJ] rejected [Sanders’] contention that the skin graft surgery necessitated by the original injury to [his] left leg caused a ‘superadded injury’ to [his] right leg (which was used as the donor site for the surgery), entitling [him] to additional benefits under [OCGA § 34-9-261] and found that [Sanders] had suffered only a specific member injury and was therefore limited to a maximum of 75 weeks of temporary total disability, computed from the date of injury. Since that period had expired, the ALJ denied [Sanders] any benefits in addition to those already received. On appeal, the board adopted the findings of fact and conclusions of law of the ALJ; the superior court affirmed.” Sanders v. Georgia-Pacific Corp., 181 Ga. App. 757, 758 (353 SE2d 849) (1987). On grant of discretionary review of the superior court’s affirmance, this court held, in the second appeal, that the board had erred in finding no disability or incapacity to Sanders’ right leg since there was uncontradicted evidence of total disability to Sanders’ right leg for the three-week period it was grafted to the injured left leg. Consequently, the case was again remanded “for a determination of benefits under former Code Ann. § 114-404 [the predecessors to OCGA § 34-9-261 awarding income benefits for total disability.]” Id. at 760.

In response to the second remand, the board found from the evidence of record that Sanders had suffered a superadded injury during the period he was hospitalized for the grafting procedure, resulting in three weeks of total disability. That award was affirmed by the superior court and is the subject of this appeal.

1. Sanders contends that the superior court incorrectly affirmed the award because the board erred in concluding that the only disability he suffered from the grafting procedure was during the time he was in the hospital. We have reviewed the transcript of the May 1985 hearing, at which Sanders testified and presented the medical testimony of his treating physicians, and we agree that there was no showing of any incapacity involving the right leg after his legs were separated. As previously ruled in the earlier appeal, Sanders “is not entitled to any additional benefits for disability resulting solely from [the left leg] injury.” Sanders v. Georgia-Pacific, supra at 759. Sanders had the opportunity to prove at the 1985 hearing whatever disability to his right leg is now alleged, and he failed to do so. “ ‘ “A cardinal principle followed by this court in (workers’) compensation cases is that neither this court nor a superior court has any authority to substitute itself as a fact finding body in lieu of the board of (workers’ compensation). Thus a finding of fact by a director or [ALJ], when supported by any evidence, is conclusive and binding upon the courts.’” [Cit.]” Id. Division 2.

2. Appellant further argues that he received benefits only for an 18 percent permanent partial impairment and that the condition of his left leg has worsened since then. Thus, he asserts the board should have scheduled another hearing to make a determination concerning an increase in that rating. Sanders’ remedy in this regard, however, does not lie in seeking a retrial of the issues presented at the 1985 hearing, but to request a separate hearing pursuant to OCGA § 34-9-104 (b) for a change in condition within two years of the final ruling on appeal. See Northbrook Prop. &c. Ins. Co. v. Babyak, 186 Ga. App. 339 (367 SE2d 567) (1988).

3. Appellant insists that OCGA § 34-9-100 (c) requires the board as a matter of law to set down a case for a hearing upon the request of either party; that he made such a demand; and that the board’s failure to schedule another hearing was in noncompliance with the directions of this court upon remand. He relies upon Miller v. Brunswick Pulp &c. Co., 184 Ga. App. 172 (360 SE2d 754) (1987), as authority for this position, but in Miller the issues raised had never been presented at a hearing. In the instant case, Sanders had the opportunity at the 1985 hearing to proffer evidence on all the issues about which he now complains. Indeed, the express purpose of holding that hearing upon remand was to determine what income benefits, if any, were due. Georgia-Pacific Corp. v. Sanders, supra, Division 4. Appellant does not contend that any error was committed by the ALJ which prevented him from presenting material evidence to prove his entitlement to income benefits, or that there is newly discovered evidence authorizing a new trial pursuant to OCGA § 5-5-23 and Rule 103 (d) of the Rules and Regulations of the State Board of Workers’ Compensation. We agree with appellee that appellant is attempting in this appeal to gain another chance to reargue facts and circumstances preexisting the 1985 hearing, and this he cannot do. The evidence in the record was sufficient to support the board’s conclusion, either at the time of the first award or on reappraisal, and we will not disturb it. See Steed v. Liberty Mut. Ins. Co., 157 Ga. App. 273 (3) (277 SE2d 278) (1981).

Decided July 10, 1989

Rehearing denied July 25, 1989

Saveli & Williams, S. Lester Tate III, Benjamin H. Terry, for appellant.

Neely & Player, Andrew J. Hamilton, Julie A. Taylor, for appel-lee.

Judgment affirmed.

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


text:
    A89A0478, A89A0479.
    MARKET INSURANCE CORPORATION v. IHM, INC.; and vice versa.
    (385 SE2d 307)
   Benham, Judge.

Appellee IHM, Inc., filed a suit sounding in tort against appellant, a California corporation, and against a Georgia corporation and two individual residents of Georgia. Appellant failed to file a timely answer, and a default judgment as to liability was entered against it. Appellant’s efforts to set aside the default judgment were denied, as was its motion to dismiss for lack of personal jurisdiction. Appellee dismissed with prejudice the claims against appellant’s co-defendants, and a bench trial against appellant on the issue of damages resulted in the entry of a judgment of $77,773.29 in favor of appellee, from which judgment appellant now brings this appeal.

1. Appellant maintains the trial court erred in denying appellant’s motions to set aside default judgment and to dismiss for lack of personal jurisdiction. Appellant asserts that he has not engaged in the “minimum contacts” with Georgia that are necessary before a Georgia court may exercise personal jurisdiction over appellant. We disagree.

In 1979, appellant and Integrity Insurance Company entered into an agreement whereby appellant became Integrity’s general agent with the power to recommend the appointment of local agents for whose actions appellant was held responsible. Market, acting on behalf of Integrity, then contracted with a Georgia corporation, Alpha, in December 1980. Under the terms of that contract, Alpha sent weekly reports on its bond sales to appellant, and appellant had the right to inspect Alpha’s books and records; appellant had the right to authorize cancellation of bonds as well as the right to adjust, compromise, settle or commit in any way appellant and Integrity to liability regarding claims on the bonds; and appellant had the right to service any Georgia accounts it deemed not properly serviced by Alpha. Alpha sent approximately $70,000 in premiums to appellant, who extracted a commission and then sent the remainder to Integrity. We agree with the trial court that appellant’s arrangement with Alpha, which purported to sell bonds to appellee, established “meaningful contacts, ties, or relations” and a sign that appellant had “purposefully directed [its] activities at residents in the forum, and the litigation results from alleged injuries that arise out of or relate to those activities.” Burger King Corp. v. Rudzewicz, 471 U. S. 462 (105 SC 2174, 85 LE2d 528) (1985). The trial court did not err in denying appellant’s motion to dismiss. The motion to set aside default was addressed to the discretion of the trial court, and we find no abuse of that discretion in its denial of the motion based upon its finding that appellant’s failure to file an answer did not constitute excusable neglect. See OCGA § 9-11-55.

2. Appellant also contends the trial court erred in failing to grant summary judgment to appellant after appellee dismissed with prejudice appellant’s co-defendants and alleged agents. Appellant, combining the holdings in Cranford v. Carver, 124 Ga. App. 767, 768 (186 SE2d 150) (1971), and Roadway Express v. McBroom, 61 Ga. App. 223 (1) (6 SE2d 460) (1939), contends that appellee’s dismissal with prejudice of appellant’s purported agents operated as a judgment in their favor and was res judicata in favor of appellee, the principal. Cranford involved a judicial order on a party’s motion for an involuntary dismissal under OCGA § 9-11-41 (b). The situation in the case at bar involved a voluntary dismissal, involving no judicial action. Since it is “[a] judgment of a court” that is to be “conclusive between the same parties and their privies” (OCGA § 9-12-40), and no such order or judgment was entered, appellant’s assertion of res judicata is without merit.

3. The trial court included in its findings of fact the observation that “Market’s conduct has been sufficiently litigious so as to merit the assessment of attorney’s fees against [it] and in favor of IHM in the amount of $10,000.” Appellant maintains the award was error inasmuch as there was no allegation of stubborn litigiousness in the pleadings and appellee had presented no evidence on the issue at trial.

Appellee asserts that OCGA § 9-15-14 (b) provides the trial court with sufficient discretion to make the attorney fees award. While the statute vests the trial court with the discretion to award attorney fees sua sponte, that power is contingent upon the trial court finding that Market’s defense lacked substantial justification or that Market had unnecessarily expanded the proceeding by improper conduct. See OCGA § 9-15-14 (b); Griggs v. Columbus Bank &c. Co., 188 Ga. App. 741 (374 SE2d 347) (1988). Inasmuch as the trial court in the case at bar made no such finding, an award of attorney fees pursuant to OCGA § 9-15-14 (b) was inappropriate. Since appellee did not prove the actual costs of the attorney and the reasonableness of those costs, it was not entitled to recover under OCGA § 13-6-11 for the professional services. Fiat Auto USA v. Hollums, 185 Ga. App. 113 (5) (363 SE2d 312) (1987). Thus, the award of attorney fees to appellee was error.

Decided July 6, 1989

Rehearing denied July 25, 1989

Stokes, Shapiro, Fussell & Wedge, Robert B. Wedge, Stephen E. Farish, for appellant.

4. Appellant contends the trial court’s awards of $7,495 for premiums for uninsured surety bonds and $60,244.29 in lost profits were not supported by the evidence. Relying on testimony given in the bench trial on the issue of damages, appellant maintains there was evidence that bonds were issued to appellee. Appellant overlooks the fact that “[d]ue to [its] default [it] is in a position of having admitted each and every material allegation of [appellee’s] complaint except as to the amount of damages suffered by [appellee]. [Cits.] Defenses which go to the right of recovery are not available to the defendant in default even though the same defense may also go to the assessment of damages. [Cits.]” Whitby v. Malay, 150 Ga. App. 575 (1) (258 SE2d 181) (1979). By defaulting, appellant admitted that its co-defendants had represented to appellee that bonds would be obtained; that ap-pellee paid the bond premiums; and that the co-defendants failed to obtain the bonds. Thus, evidence that the bonds were issued had no place in the trial on damages and cannot be used to support appellant’s assertion that the award was improper.

The issue of compensatory damages was the topic of much testimony and debate during the bench trial. While appellant disputed the amount of loss which appellee claimed to have suffered, we cannot say that, as a matter of law, the factfinder’s award was clearly erroneous. See OCGA § 9-11-52. Accordingly, we must affirm. Nodvin v. Krabe, 160 Ga. App. 310 (2) (287 SE2d 236) (1981).

5. In light of our disposition of Market’s appeal, we must dismiss IHM’s cross-appeal as moot.

Judgment affirmed in Case No. A89A0478 with direction that the award of attorney fees be stricken. Appeal dismissed in Case No. A89A0479.

Been, P. J., and Birdsong, J., concur.

Decker & Hallman, Richard P. Decker, Peter V. Hasbrouck, Adrian F. Lanser III, Lokey & Bowden, Charles M. Lokey, Harman, Owen, Saunders & Sweeney, H. Andrew Owen, for appellee.


author: Birdsong, Judge.

text:
    A89A0508.
    BAKER v. SOUTHERN RAILWAY COMPANY et al.
    (385 SE2d 125)
   Birdsong, Judge.

This is an appeal from a judgment granting appellee’s motion to dismiss an appeal for unreasonable and inexcusable delay in the filing of the transcript.

On December 15, 1987, appellant filed his notice of appeal of the order of the trial court granting appellee railroad a directed verdict. Appellant timely paid to have a transcript prepared by the court reporter who recorded the trial testimony. During either the first or second week of January, 1988, a secretary from the office of appellant’s counsel called the court reporter to inquire as to the status of the transcript. Appellant’s counsel states that “[ajfter talking to [the court reporter], my secretary informed me that [the court reporter] assured her that the transcript would be finished and filed within the next few days and before the expiration of 30 days from the filing of the Notice of Appeal. After having received this information I determined that it would be unnecessary to apply for an extension of time for filing the transcript. Neither I nor anyone [else] in my office was ever contacted by [the court reporter] at any point afterwards and told that she would be unable to file the transcript in time. . . .” (Emphasis supplied.) The court reporter states, “[sjome time during the first or second week of January, 1988, I received a telephone call from [the] office [of appellant’s attorney] asking whether the transcript would shortly be ready and filed with the Court. I answered that I was presently working on the transcript and it should be completed and filed within two or three days.” (Emphasis supplied.)

The court reporter did not complete the transcript and file it within the 30-day period, as her husband experienced cardiac difficulties for which he was hospitalized and operated upon during this time. Appellant’s counsel states that he did not learn of the failure to file until after the 30-day period had expired. Thereafter, appellant’s counsel claims that he made numerous phone calls and four visits to the court reporter urging completion of the transcript. The transcript was filed 64 days from the date of filing of the notice of appeal; that is, 34 days after the expiration of the 30-day statutory filing period.

Appellant asserts that the trial court erred in granting appellee’s motion to dismiss the appeal for appellant’s failure to file timely a trial transcript. OCGA § 5-6-48 (c) specifically requires that as a prerequisite to the dismissal of an appeal for delay in filing of a transcript, there must have been “an unreasonable delay in the filing . . . and it [must be] shown that the delay was inexcusable and was caused by” the party having responsibility for transcript filing. In this case, the appellant did not direct in his notice of appeal that the transcript would not be made a part of the record. Pursuant to OCGA § 5-6-42, appellant is the party responsible for transcript filing. The trial court specifically found that “the delay in .the filing of the transcript was both unreasonable and inexcusable, in that the Plaintiff [appellant] failed to request an extension of time within which to file the transcript.”

In passing on the issues of whether the delay was “unreasonable” and “inexcusable,” “ ‘the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts. (Cit.)’ [Cit.] ‘On appellate review the sole test is whether the trial judge abused his discretion in dismissing the appeal. (Cit.)’ ” Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 578 (373 SE2d 758); compare Galletta v. Hillcrest &c., 185 Ga. App. 20 (1) (363 SE2d 265), cert. denied. Moreover, on appeal we are required to construe the evidence most strongly so as to support the judgment. Williams v. Perry, 187 Ga. App. 586 (1) (370 SE2d 836).

We recognize that the court reporter failed to transcribe the trial transcript timely because of the press of family health problems of utmost severity. Nevertheless, “[w]hile it may not be the fault of the appellant that the transcript was not filed, it was the duty of the appellant to seek an extension of the period for filing the transcript before the period expired.” Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327 (375 SE2d 492) (1988). Clearly, “[t]he burden is on the appellant to request an extension. [Cit.] This burden cannot be shifted to the court reporter.” Dunbar v. Green, 232 Ga. 188, 189 (205 SE2d 854); see Gerdes v. Dziewinski, 189 Ga. App. 802 (377 SE2d 550).

Failure of the appellant to request an extension for the filing of the transcript is not per se a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. Glen Restaurants, supra. In this case, however, the dismissal was supported by a finding that the delay was both unreasonable and inexcusable.

The evidence of record shows that after directing his secretary to call the court reporter and receiving her report regarding that conversation, appellant’s counsel elected to neither make nor direct further inquiries of the court reporter, regarding the status of the transcript, until after the 30-day period had expired. Moreover, appellant’s counsel was duly placed on notice by his secretary’s report of the phone conversation that the transcript was not fully transcribed as of the date of that call. We are satisfied that this evidence, coupled with appellant’s failure to request an extension of time and the lengthy delay that occurred in the preparation of the transcript, amply supports the findings of the trial judge and affirmatively establishes on the record that the failure to obtain an extension of filing time was caused by the appellant. See OCGA § 5-6-48 (c); Glen Restaurants, supra. See also Hatfield v. Great American Mgmt. &c., 190 Ga. App. 534 (2) (379 SE2d 544). Accordingly, we find that the trial court’s findings were not erroneous, and that appellant has failed to establish that the trial court abused its discretion.

Decided July 13, 1989

Rehearing denied July 25, 1989

Paul R. Bennett, for appellant.

Neely & Player, Edgar A. Neely III, Tami L. Brown, William C. Thompson, for appellees.

The cases of Wagner v. Howell, 257 Ga. 801 (363 SE2d 759) and Elliott v. Leathers, 223 Ga. 497 (156 SE2d 440), cited by appellant, are distinguishable from this case.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Pope, Judge.

text:
    A89A0595.
    DANIELS v. THE STATE.
    (385 SE2d 107)
   Pope, Judge.

Appellant was convicted of trafficking in cocaine and violation of the Georgia Controlled Substances Act by possession of more than one pound of marijuana with intent to distribute. In his appeal, he enumerates 11 errors.

1. Acting on a tip, police began surveillance on an apartment leased to Brenda Clay. During several days of surveillance, police observed appellant enter and. leave the apartment several times. On September 22, 1987, police obtained a search warrant and entered the premises. In the closet of the master bedroom, they found approximately $131,000 in cash in one piece of luggage and approximately three kilos of cocaine in another luggage bag. Male and female clothes were found in the closet where the cocaine and cash were stored. In the living room closet, police found over a pound of marijuana as well as scales and a sifter containing white residue. Business records and cancelled checks pertaining to two businesses owned by appellant were also found.

Police arrested appellant and Brenda Clay at T. D. Auto Sales, which appellant owned and which employed Clay as an administrative assistant. Clay testified that she and appellant were dating and that he often stayed at her place overnight and that he had a key. Only appellant, Clay and her son had keys. Clay also testified that when appellant told her he could not find his key, she would leave a key over the light for him. At the time he was arrested, police seized a key from appellant’s key ring that fit Clay’s door. Clay testified that appellant had flown back from Las Vegas on September 21, 1987, and that she had picked him up at the airport. He was carrying black luggage that he placed in the master bedroom at her apartment. Appellant stayed the night with Clay. Clay also testified that after the two were arrested, they were driven together by the police to the station. During the ride she asked appellant how the drugs got there. He replied that Artise Johnson was supposed to remove the drugs before she got home. He also asked her to say that she did not know anything about what was going on. Appellant denied ever staying at Clay’s house, denied any personal relationship with her, and denied possession of the drugs or any knowledge of them.

From the foregoing, we find the evidence sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “[I]t is well settled that the appellate court assesses not the weight of the evidence, but its sufficiency. [Cit.]” Millines v. State, 188 Ga. App. 655, 657 (373 SE2d 838) (1988). There is no merit to appellant’s argument that the evidence was insufficient to establish actual possession. Oglesby v. State, 192 Ga. App. 165 (384 SE2d 192) (1989); Reed v. State, 186 Ga. App. 539 (367 SE2d 809) (1988).

2. Appellant alleges that the trial court erred in allowing the prosecution to admit evidence of his character in its opening statement and throughout the trial. There is no merit to this argument in regard to the opening statement for appellant made no objection. Thus, there is nothing for this court to review. Cargill v. State, 255 Ga. 616, 636 (340 SE2d 891) (1986); Cooper v. State, 188 Ga. App. 297 (1) (372 SE2d 679) (1988). Testimony by Brenda Clay that appellant had kept and used marijuana in her apartment and that he possessed large sums of money derived from selling drugs was admissible to show intent, motive or scheme. Chambers v. State, 154 Ga. App. 620 (5) (269 SE2d 42) (1980). Nor was it error to admit Clay’s testimony that after their arrests, appellant told her that he had “a stack of money so high to get rid of whoever was responsible” for sending him to jail. Bridges v. State, 246 Ga. 323 (2) (271 SE2d 471) (1980). The statement tends to show consciousness of guilt and is therefore admissible.

3. The trial court did not err in failing to charge on alibi. Pearson v. State, 164 Ga. App. 337, 338 (297 SE2d 98) (1982).

4. The record shows that the trial court properly charged actual possession regarding the trafficking count pursuant to Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). The trial court then charged the jury regarding the possession of marijuana with intent to distribute count and in regard to that charged the jury on actual and constructive possession. We find no error.

5. The trial court did not err in failing to charge on the doctrine of “equal access.” This defense is available to an accused to whom a presumption of possession flows. Castillo v. State, 166 Ga. App. 817 (2) (305 SE2d 629) (1983). Appellant did not own the apartment in which the contraband was found and denied living there or ever visiting there. Appellant did not request such a charge at trial and made no objection at trial concerning the absence of such a charge. There is no merit to this enumeration.

6. We have examined the charge and find that it adequately informed the jury on its options to find appellant guilty or not guilty of the charges against him.

7. There is no merit to appellant’s argument that the court erred in charging on lesser included offenses. Waters v. State, 177 Ga. App. 374 (3) (339 SE2d 608) (1985).

8. The trial court did not err in allowing Brenda Clay to testify to what appellant told her in the police car after they were arrested. Ramsey v. State, 165 Ga. App. 854 (4) (303 SE2d 32) (1983).

9. Finally, appellant, who is represented by different counsel on appeal, contends that he was denied effective assistance of counsel at trial. He first argues that this was the case because of an alleged conflict of interest with Brenda Clay who was arrested with appellant and later testified against him. Trial counsel was called by appellant after his arrest and went to the College Park police station. When he arrived, appellant and Clay were seated in a room with police also present. Clay and appellant each told trial counsel that the drugs did not belong to them and Clay also said she knew nothing about them. Trial counsel replied that he did not think they were hers, but that none of them should say more around the police. Trial counsel testified at the motion for new trial hearing that he never consented to represent Clay and told her she needed an attorney and that appellant indicated he would arrange to get a lawyer for her.

Shortly before trial, trial counsel learned that Clay had agreed to testify against appellant. On cross-examination of Clay, trial counsel questioned why she had waited so long to decide that the contraband belonged to appellant, a change from her earlier position that she knew nothing about it. In the course of the cross-examination, Clay testified “You, yourself, when you came to visit me, told me that you knew that the things that they found in my apartment didn’t belong to me, and that [appellant] had told you that as well.”

Decided July 11, 1989

Rehearing denied July 25, 1989

Gort, Hassett, Cohen & Beitchman, Cliffe L. Gort, for appellant.

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

“In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. In the case sub judice, the defendant has failed to show in the record any actual conflict of interest or how such potential conflict of interest actually impaired the attorney’s performance or representation. These contentions raise only the possibility of conflict. A mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence.” Craddock v. State, 173 Ga. App. 133, 134 (325 SE2d 804) (1984). (Citations and punctuation omitted.) The record does not support appellant’s argument that an actual conflict of interest existed.

We have examined appellant’s remaining arguments that his trial representation was inadequate and have reviewed the trial transcript and the transcript of the hearing on motion for new trial in which the ineffective assistance of counsel argument was presented to the trial court and find no error. Trial counsel did not make errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Nor was the defense prejudiced in a manner that would deprive appellant of a fair trial. Hosch v. State, 185 Ga. App. 71, 71-72 (363 SE2d 258) (1987).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0602.
    PATTERSON v. THE STATE.
    (385 SE2d 311)
   Birdsong, Judge.

Patterson appeals his convictions of the aggravated battery of Johnny Marlowe (Count I) and criminal attempt to commit aggravated assault on Dennis Stiles (Count II). His convictions arose from a shooting incident following an afternoon of drinking “white liquor” at a local swimming hole.

The night before, Dennis Stiles visited Patterson’s home and spent the evening drinking and arguing. While Patterson does not agree entirely with the latter characterization, at some point in the evening Stiles felt that the best thing was to leave. At Patterson’s urging, Stiles changed his mind and spent the night at Patterson’s house.

The next day Patterson and Stiles went their separate ways for a time but in the afternoon Patterson, with others, went to the swimming hole where they found Stiles and others, including Johnny Marlowe. Patterson, Stiles, and Marlowe went downstream away from the main group and drank white liquor. According to Stiles and Marlowe, Patterson continued his argument with Stiles. Patterson recalled, however, that Stiles continued to argue, not Patterson. After the others left the area, Stiles passed out on the stream bank, and Patterson and Marlowe went back to Patterson’s car.

According to Marlowe, they went there to smoke marijuana. Patterson says, however, that he went to his car to get his .22 caliber pistol so that he could fire a warning shot at Stiles to keep him from wanting to fight.

In Marlowe’s version of the events at the car, he saw Patterson standing next to the car near the closed driver’s door. Patterson’s wife and children were inside the car, and Patterson and his wife were talking loudly. Marlowe recalls that Patterson said something to him which sounded “something like stay out of it.” At that time, Marlowe was standing a few feet in front of the car and saw that Patterson was holding a gun in his right hand along the side of his leg. Marlowe started to walk away, but turned to ask Patterson something. When Marlowe turned toward Patterson, Patterson raised the gun, pointed it at Marlowe, and shot him. The bullet struck Marlowe in the neck and he fell to the ground on his back.

Marlowe testified that the driver’s side door was closed and that Patterson’s hand did not touch the car door. Marlowe also testified that after he was shot, Patterson walked past him toward the swimming hole, but before enough time passed for him to go to the swimming hole and back Patterson returned. According to Marlowe, neither Patterson nor his wife assisted him as he lay on the ground. As a result of the gunshot wound, Marlowe is permanently paralyzed from his mid-chest down.

Patterson testified, however, that he did not intend to shoot Marlowe. He admits that he intentionally cocked the single action pistol which would not fire unless the pistol was cocked, and that he knew the pistol had a hair trigger. Nevertheless, he testified that he was standing between the car door and the car, that he used the pistol to push the door open, and, that the pistol hit the door causing it to fire. He testified he went immediately to Marlowe’s assistance, and he did not go past Marlowe down toward Stiles. According to Patterson, he threw the pistol in the car after Marlowe was shot and he had no intention of going down to the creek and shooting Stiles. Both Patterson and his wife testified they tried to assist Marlowe until others came and took him to the hospital. Patterson’s statement to the investigating officers that he was mad at Stiles because Stiles was trying to pick a fight with Patterson in front of Patterson’s wife and children, was admitted in evidence. In the statement he also said that he was going to kill Stiles.

Patterson appeals and enumerates that the court improperly charged the jury on inferences which could be drawn, by failing to recharge the jury on intention as a necessary element of the offense, by denying the defendant’s motion for a mistrial after a State’s witness improperly introduced evidence of Patterson’s character, and by denying Patterson’s motion for a directed verdict on the criminal attempt charge. Held:

1. The first enumeration of error contends that the charge to the jury on inferences which might be drawn from intentional use of a deadly weapon impermissibly shifted the burden of proof to the defendant. Patterson relies upon Powell v. State, 187 Ga. App. 878, 879 (372 SE2d 234) for this proposition. Powell v. State is physical precedent only. See Rule 35 (b) of this court. Further, the charge given in Powell differed in important respects from the charge under attack by Patterson. Most significantly in the instant case, the charge advised the jury that it “may infer” and further that “whether or not [it made] any such inference or inferences in this case is a matter solely within the discretion of you members of the jury.” In Powell the charge was that the “law infers.” The opinion in Powell at 880 correctly noted that “[t]he law does not draw ‘conclusions’ as to intent or other factual matters. Factual decisions and conclusions are matters that belong exclusively to the province of the jury.” The charge in this case which instructed the jury it might infer certain matters, if it chose to do so, and whether it made any inferences of any kind was a matter solely within the jury’s discretion was not burden-shifting. Catchings v. State, 256 Ga. 241, 248 (347 SE2d 572); Worth v. State, 179 Ga. App. 207, 209 (346 SE2d 82). Accordingly, the first enumeration of error is without merit.

2. The second enumeration of error asserts that the trial court erred by failing to recharge the jury on intention when the court recharged on other matters specifically requested by the jury. No error was committed. Whether to recharge in full or only on the points requested by the jury is a matter within the sound discretion of the trial judge. Dyson v. State, 155 Ga. App. 297, 298 (270 SE2d 711). The jury had been correctly charged earlier on intention, and the focus of the jury’s question was not on that issue directly. Further, no question has been raised about legal correctness of the original charge on intention or the matters given in the recharge. Thus, our review on this issue is limited to determining whether the trial judge abused his discretion. Taylor v. State, 169 Ga. App. 842, 844 (315 SE2d 661). Under the circumstances, we find no abuse of discretion and no error.

3. The third enumeration alleges that the trial court erred by refusing to grant a mistrial motion after an agent from the Georgia Bureau of Investigation testified that Patterson’s wife had said that he was on probation and had two DUIs. The record reflects that the trial court admonished the agent about this testimony, and promptly informed the jury that the agent’s testimony was improper and that the court had so admonished the agent. Further, the trial court also instructed the jury that they were not to consider those matters for any purpose. After these instructions Patterson renewed his motions, and alleges that such instructions were insufficient and that as the State asked the question which elicited the objectionable response, a mistrial was required. He relies upon our decisions in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396) and Brown v. State, 118 Ga. App. 617 (165 SE2d 185) for this proposition. Examination of those cases shows that both decisions are exceptions to the general rule that motions for mistrial are largely within the discretion of the trial judge. Lee v. State, 154 Ga. App. 562 (269 SE2d 65). The matters which Patterson properly found objectionable in this case, however, hardly fall within the category of prejudicial comments which were found to require a mistrial in Boyd and Brown. Although the agent’s comments were made in response to a question by the prosecutor, there is no indication that the question was designed to evoke the answer made, or to prejudice the jury. Further, the record shows that the prosecutor apologized to the court and offered to accept any admonishment the court deemed appropriate. More significantly, we do not find that this agent’s response was “inherently prejudicial and incapable of being cured.” Sabel v. State, 250 Ga. 640, 644 (300 SE2d 663). While alcohol was certainly a factor in this case, knowing that the appellant was on probation for DUI is not information of the kind to prejudice the jury against Patterson. “The decision whether to grant a mistrial or give a curative instruction ordinarily rests in the trial judge’s sound discretion. [Cit.]” Dimauro v. State, 185 Ga. App. 524 (364 SE2d 900). The trial court did not abuse its discretion by not granting a mistrial under the facts of this case. Mims v. State, 180 Ga. App. 3, 4 (348 SE2d 498).

4. Patterson’s fourth enumeration of error asserts the failure of the trial court to direct a verdict of acquittal on Count II charging Patterson with the criminal attempt to commit the crime of aggravated assault on Stiles in violation of OCGA § 16-5-21. He alleges that the State failed to introduce sufficient evidence to establish that Patterson committed the criminal attempt. We must reverse, but not for the precise reason Patterson asserts in support of this particular enumeration of error.

Patterson was charged with attempting to commit an aggravated assault on Dennis Stiles. According to OCGA § 16-5-21, a person commits the offense of aggravated assault when he assaults another with specific intent to commit certain enumerated crimes not relevant here, or assaults with a deadly weapon or an object which actually or is likely to produce serious bodily injury. In this state one commits an assault against another when one either attempts to commit a violent injury to the person of another, or when one commits an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20. Because Stiles was unquestionably asleep or passed out on the creek bank during the time relevant to this count, he could not have been placed in apprehension of receiving an injury, and thus the assault charged in Count II perforce must have been based upon the attempt theory. Consequently, Patterson was charged with and prosecuted for the criminal attempt to attempt to commit a violent injury to Dennis Stiles with a deadly weapon. “We know of no law authorizing the conviction for an attempt to commit a crime which itself is a particular type of attempt to commit a crime.” Porter v. State, 124 Ga. App. 285, 286 (183 SE2d 631). “As an assault is itself an attempt to commit a crime, an attempt to make an assault can only be an attempt to attempt to do it, or to state the matter still more definitely, it is to do any act towards doing an act towards the commission of the offense. This is simply absurd. As soon as any act is done towards committing a violent injury on the person of another, the party doing the act is guilty of an assault, and he is not guilty until he has done the act.” Wilson v. State, 53 Ga. 205, 206. In a similar manner, “[t]here is of course, no such offense as an attempt to commit an assault with intent to rape.” Green v. State, 82 Ga. App. 402, 405 (61 SE2d 291). See also Alexander v. State, 66 Ga. App. 708, 710-712 (19 SE2d 353). Accordingly, we must reverse Patterson’s conviction of Count II and its sentence.

Decided July 10, 1989

Rehearing denied July 25, 1989

Weaver & Weaver, George W. Weaver, Brenda S. Weaver, for appellant.

Roger G. Queen, District Attorney, J. Roger Thompson, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Benham, J., concurs. Deen, P. J., concurs in Divisions 1, 2, 3, and in the judgment.


author: Carley, Chief Judge.

text:
    A89A0679.
    BEL ARBOR NURSING HOME v. JOHNSON.
    (385 SE2d 667)
    Decided July 10, 1989
    Rehearing denied July 25, 1989

      McLain & Merritt, Jeffrey E. Hickcox, for appellant.

      Tommy C. Mann, G. Sam Burnette, for appellee.
   Carley, Chief Judge.

Appellee-employee sought and received medical treatment from physicians who were not members of the “panel of physicians” maintained by appellant-employer. The issue presented for resolution in this appeal is whether appellee is entitled to workers’ compensation medical benefits for that treatment. The Full Board awarded those benefits to her, relying upon Georgia Power Co. v. Brasill, 171 Ga. App. 569 (320 SE2d 573) (1984), aff’d 253 Ga. 766 (327 SE2d 226) (1985). On appeal to the superior court, the award was affirmed. This Court granted appellant’s application for a discretionary appeal from the superior court’s affirmance of appellee’s award.

After reviewing the record, we find that this case is controlled by Georgia Power Co. v. Brasill, supra, and Boaz v. K-Mart Corp., 254 Ga. 707 (334 SE2d 167) (1985). Here, as in those cases, the Full Board was authorized to find that, although appellee had been receiving treatment from a physician who was on appellant’s approved panel, she “had been dismissed from treatment as cured even though still in need of treatment, and thus was justified in going to a physician of her choice.” Pritchard Svcs. v. Lett, 183 Ga. App. 298, 300 (358 SE2d 842) (1987). If “an employer-approved physician releases] [an employee] back into the work force as ‘cured,’ the employer [has] not adequately met its duty of providing treatment to the employee [if] the employee [is] able to prove that his subsequent medical problems were related to his work-related injury.” State of Ga. v. Tungler, 181 Ga. App. 21, 23 (351 SE2d 248) (1986). Since the award of the Full Board was supported by “any evidence,” an affirmance by the superior court was mandated.

Judgment affirmed.

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


text:
    A89A0680.
    DYCHES CONSTRUCTION COMPANY v. STRAUSS.
    (385 SE2d 316)
   Birdsong, Judge.

Dyches Construction Company (“Dyches”) appeals from a judg ment, based upon a jury verdict, for Strauss on a counterclaim agains Dyches. The action concerns the condition of a lot in a trailer park that Dyches rented to Strauss. The judgment awarded $1,000 in special damages, $1,000 in general damages, and $50,000 in punitive damages.

The case began as a dispossessory action by Dyches against Strauss for nonpayment of rent. Strauss answered and counterclaimed seeking damages against Dyches because of a nuisance on the lot allegedly created by Dyches’ refusal to make necessary repairs to the septic tank system.

In March 1985, Strauss had his trailer moved onto the lot in question. Apparently after Strauss experienced effluent seepage from the ground around his trailer for some time without correction, he withheld the rent. Thus in August 1985, Dyches filed the disposses-sory action which began this lawsuit. After Strauss’ answer and counterclaim, and apparently because the rent was paid, the dispossessory action was dismissed. While the litigation proceeded, the trouble with the septic tank system also continued. Finally, in January 1987, the county sanitarian advised Dyches that effective repairs must be made, and Dyches sent a letter to Strauss advising him that he had 30 days to relocate. Apparently through some confusion, Dyches also filed another dispossessory action against Strauss for nonpayment of the rent. There is no contention that Strauss, in fact, had not paid the rent, and shortly after the dispossessory action was served on Strauss’ mother-in-law, it was dismissed.

After the second dispossessory action, Strauss amended his counterclaim to allege that Dyches breached its obligations to repair under OCGA § 44-7-13 resulting in both damage to the trailer and mental pain and suffering to his family. Strauss sought special, general and punitive damages on these claims. He also asserted a claim for abusive litigation under the then recently decided Yost v. Torok, 256 Ga. 92, 95 (344 SE2d 414). After this amendment to the counterclaim, Strauss had pending claims against Dyches for nuisance, negligence, and abusive litigation.

The evidence at trial showed that, at the time Strauss’ trailer was put on the lot, the septic tank system was damaged. About two weeks after Strauss moved in, he began having trouble with seepage from the septic tank onto the ground and generally muddy conditions around the trailer. The Strausses, their neighbors, workers who moved their trailer, a newspaper reporter, and the Chatham County Sanitarian all testified about the conditions of the lot and general area, about seepage from the- ground, draining into a nearby ditch, and about the resulting stench.

Dyches does not dispute the problems with the septic tank system under the Strauss trailer. Instead, it maintains the problem was caused by the negligence of Strauss’ agents in placing the trailer on the lot. Dyches also maintains it made numerous efforts to repair the system and that the system could not be repaired without moving the trailer. Further, Dyches presented evidence that there have been no problems since Strauss’ trailer was removed and the repairs made.

Ultimately all of Strauss’ claims, except the abusive litigation claim, went to the jury. The jury returned a verdict for Strauss. This appeal followed denial of Dyches’ motion for new trial and motion for j.n.o.v. Held:

1. In enumerations of error 1, 2, and 3, Dyches attacks the denial of its motion for directed verdict and subsequent motion for j.n.o.v. on the issues of property damage, nuisance, and punitive damages. In each instance the trial court denied the motion for directed verdict because it found that sufficient evidence had been presented to create a jury issue. “A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a) (b).” Union Camp Corp. v. Daley, 188 Ga. App. 756 (374 SE2d 329). We do not find from the evidence presented that a verdict was demanded for Dyches on any of these issues. Although there was a question on whether Strauss had a sufficient interest in the trailer to allow him to claim for property damage, this issue was presented to the jury and the jury resolved the issue in favor of Strauss. Dyches cites no authority showing this result to be legal error and on the factual issue we are bound to review and resolve the evidence in favor of the verdict. Union Camp Corp. v. Daley, supra.

Dyches’ argument on the nuisance claim relies on the contention that an action for nuisance lies only when the nuisance is created on one property and adversely affects a separate property. Dyches asserts that since the effluent was seeping up from the ground under the trailer there could be no nuisance as the trailer lot was the same property. This argument, however, is only one way to consider the evidence in this case. There was evidence that the effluent was seeping up under and around the trailer, and there was also evidence that the septic tank system was owned and operated by Dyches on this particular lot and throughout the trailer park. Consequently, the jury could find from the evidence that the cause of the effluence was generated elsewhere than where it seeped up.

Additionally, Strauss only had a tenancy at will to put the trailer on the lot, and thus under Georgia law had no estate in the land itself. Thus, there was evidence sufficient to go to the jury on whether there was a nuisance in this particular case even adopting Dyches’ argument. Accordingly under the particular and unusual circumstances existing in this case, we cannot conclude that a verdict was demanded for Dyches on this issue.

Dyches asserts in enumeration of error 3 that as punitive damages were not warranted under the facts, the issue should not have been permitted to go to the jury. The evidence showed that Strauss and his family lived on a trailer lot which for over a year was saturated with seepage from the defective septic tank system, that efforts to repair the system were not adequate, and that Dyches did not take the serious steps necessary to repair the system until the county sanitation department finally intervened. Under this evidence, there was at least a jury question whether Dyches’ inability to remedy the situation resulted from wilful and wanton actions done with conscious indifference to the consequences. See Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 189 (232 SE2d 62). While there is evidence of record that Dyches responded to complaints about the conditions, it cannot be said as a matter of law that the response to the complaints, which plainly did not correct the problem over an extended period, were sufficient to keep this issue from the jury.

Accordingly, as the evidence did not demand a verdict for Dyches on these issues, the trial court did not err by permitting them to go to the jury. Union Camp Corp. v. Daley, supra.

2. In the fourth enumeration, Dyches asserts that the trial court erred by not entering a pretrial order upon Dyches’ request. The record shows that although Dyches requested that a pretrial order be entered, Dyches next requested that the order be delayed because of the additional discovery as to the allegations contained in Strauss’ amended counterclaim. The next request from Dyches on the pretrial order was made the day of trial after the case had been called. The trial court found that under these circumstances the request was untimely and denied the request. We find no error. The trial court delayed action on the pretrial order at Dyches’ request, and as the second request was not made until the day of trial, it was untimely. Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758 (242 SE2d 483). Further, no irremediable harm was shown. This enumeration of error is without merit.

3. Dyches contends the trial court erred by permitting Strauss’ abusive litigation claim to be tried as part of the main case and not in a subsequent proceeding. While that is the general procedure for abusive litigation claims, Yost v. Torok, supra, it is not followed when, as here, the “main claim” is dismissed prior to trial. See Moore v. Memorial Med. Center, 258 Ga. 696, 697 (373 SE2d 204). Moreover, there was no prejudice to Dyches as the abusive litigation claim did not go to the jury and the evidence of the subsequent dispossessory, contrary to Dyches’ assertions, was relevant to the other issues in the case, particularly the claim for punitive damages. Accordingly, this enumeration of error is also without merit.

4. Enumerations of error 6, 7, 8, and 9 concern the admission of . certain matters in evidence over Dyches’ objections on hearsay or relevancy. These enumerations must be considered in light of the principles that such questions are for the trial court to decide, Kilpatrick v. Foster, 185 Ga. App. 453, 457 (364 SE2d 588), and unless the trial court has abused its discretion, this court will not interfere. Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38).

The hearsay objection concerned two repair estimates as to damage to the house trailer. This testimony, in part, was given to support Strauss’ opinion of the value of the damage to the trailer. The record reveals that Strauss had experience in repairing trailers. Under these circumstances, we do not find that the trial court abused its discretion by permitting this testimony.

Dyches’ claim that evidence of Dyches’ negligence in repair was not relevant is without merit. Since the amended counterclaim alleged that Dyches had breached its statutory duty under OCGA § 44-7-13 to repair the premises, evidence regarding Dyches’ negligence in making such repairs is clearly necessary to that claim. Further, evidence of Dyches’ negligence was also relevant to the rebuttal of Dyches’ claims that the leaking septic tank system was the sole fault of Strauss and that Strauss’ agents negligently located the trailer on the lot. Accordingly, the trial court did not abuse its discretion by allowing such testimony.

The evidence that a government agency closed the lot was also relevant to the issues in the case. “ ‘ “(E)vidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” ’ ” Harris v. State, 183 Ga. App. 219, 221 (358 SE2d 634). The contested evidence appears to throw light upon the condition of the lot. In any case the law favors the admission of questionable evidence; consequently, the trial judge did not abuse his discretion by allowing the testimony.

Dyches’ final enumeration of error on relevancy asserts that the court erred by allowing testimony concerning the condition of the common areas of the trailer park, because Strauss could not recovei for such conditions as they constituted a public nuisance. Whethei one can bring an action is not the test for relevancy. See Harris v. State, supra. The trial court did not abuse its discretion by permit ting witnesses to testify about the other conditions in the trailer park

5. Dyches asserts that the trial court erred by not granting Dyches’ motion for a mistrial after Strauss’ counsel allegedly com mented in closing argument about Dyches’ wealth. We cannot con sider this allegation as the error asserted is not reflected in the recorc before us. The transcript of the trial does not include the closing ar gument of counsel, and, therefore, there is nothing in the record t< show what the comments of opposing counsel may have been. Fur ther, we cannot consider the matters alleged in the briefs of counsel which are unsupported by the record. Behar v. Aero Med. Intl., 185 Ga. App. 845, 846 (366 SE2d 223). In the absence of a transcript, we must assume that the trial court’s ruling was correct. Wetherington v. Koepenick & Horne, 153 Ga. App. 302, 305 (265 SE2d 107).

6. Dyches’ final enumeration of error asserts that the trial court erred by denying its motion for a new trial based upon grounds that the award of $50,000 in punitive damages is inherently excessive in light of the award of only $1,000 in general damages and $1,000 in special damages. See Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827). In Colonial Pipeline, supra, our Supreme Court reversed an award of punitive damages in a property damage case which was one hundred times the actual and consequential damages. The court found in that case that any negligence was passive, that there was no bodily injury to the plaintiff and the award bore no rational relationship to the actual damages, and that there was no rational relationship between the offense and the punishment because the punitive damages were one hundred times the property damage. Id. at 123. Examining the evidence in this case in a light which most strongly supports the verdict (J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727 (380 SE2d 282)), we find that the evidence in this case supports findings that Strauss, his wife, and children for almost two years lived in a trailer on a lot supplied by Dyches on which effluence from the septic tank system frequently, if not continuously, seeped from below the ground and drained across the lot; that the stench from the effluent was unpleasant and prevented the family going outdoors; that the children could not play outside; that the ground was so soft that Strauss’ car frequently bogged down; that Strauss made numerous complaints to Dyches and no effective repairs were made; that Strauss complained to the county about the conditions and no effective repairs were undertaken until the county advised or directed Dyches to take action; that throughout the entire period, notwithstanding the conditions they lived in, the Strausses were expected to pay the full rent for the lot; that similar conditions existed elsewhere in the trailer park; that notwithstanding Strauss was not behind in his rent, Dyches filed a dispossessory against him; and that Dyches is a corporation which owns several trailer parks and is in the business of renting such spaces to the public.

Under these circumstances, we do not find that the factors relied upon in Colonial Pipeline to reverse the award of punitive damages to be present here. The actions of Dyches were not merely passive, but constituted injury to Strauss’ person as Strauss and his family had to live in the conditions described above; there is a relationship between the injury suffered and the damages, and considering the relative positions of the parties, there is a rational relationship between the award and the offense. Moreover, the evidence in this case supports the findings necessary for imposition of punitive damages under OCGA § 51-12-5. Based upon the conditions which existed in this case, the punitive damages awarded bore a significant relationship to having to live, in effect, over an open sewer for over a year without any effective corrective action by the landlord.,

Decided July 12, 1989

Rehearing denied July 25, 1989

Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., for appellant.

Duffy & Feemster, Dwight T. Feemster, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0777, A89A0778.
    KNOXVILLE MEDICAL INVESTORS, LTD. et al. v. NATIONAL HEALTHCORP L.P. et al. (two cases).
    (385 SE2d 110)
   Benham, Judge.

Appellants seek review of the denial of their motion to disqualify appellees’ counsel from representation and the denial of their motion for partial judgment on the pleadings. We affirm the judgment with respect to both issues.

1. We granted appellants’ petition for interlocutory review of the disqualification issue (Case No. A89A0777), and so we dismiss their case which seeks review of the same issue by direct appeal (Case No. A89A0778).

2. The trial court denied appellants’ motion to disqualify the law firm of Powell, Goldstein, Frazer & Murphy (Powell, Goldstein) from representing appellees against them in a lawsuit that named appellants as defendants. Appellants contend that a conflict of interest was created by Powell, Goldstein’s merger with the law firm of Connell, Dodd & Hughes (Connell, Dodd) in May 1988. Before joining Powell, Goldstein, two Connell, Dodd attorneys had represented appellants Stiles A. Kellett, Jr., and Samuel B. Kellett in obtaining a certificate of need for a nursing home in DeKalb County, Georgia, through one of the Kelletts’ partnerships,. Dunwoody Health Care, Ltd. (Dun-woody). The certificate of need had been obtained and the major business related to it had been concluded in September 1987, several moths before the merger. Dunwoody is not involved in the lawsuit in question, which involves lease with option to repurchase agreements that appellants allegedly breached. The suit is against Stiles and Samuel Kellett, who are the general partners of defendants Greenwood Medical Investors, Ltd. (Greenwood) and Knoxville Medical Investors, Ltd. (Knoxville), respectively, and involves nursing homes in Knoxville, Tennessee, and Greenwood, South Carolina. Shortly after the law firm merger occurred, the former Connell, Dodd attorneys sent a letter to the Kelletts notifying them of the possible conflict of interest inasmuch as Powell, Goldstein had been representing appel-lee National HealthCorp. L.P. (National) before the merger, and were now representing plaintiffs and defendants in the same civil action. The attorneys asked the Kelletts to consent to the dual representation and, in lieu of consent, offered to withdraw as counsel for the Kelletts. The Kelletts chose to have the attorneys withdraw as counsel but then moved to have Powell, Goldstein disqualified as counsel for National, arguing that the law firm should have withdrawn from representing all of the parties instead of choosing one over the other; that the firm had unlimited access to appellants’ financial and operating information; and that the facts involved in the prior representation and the continuing litigation were generally related and overlapped in time. The trial court denied the motion, finding that appellants failed to carry their burden of proof under the “substantial relationship test,” which requires that the movant show that the present litigation and the former matter in which it was represented by opposing counsel are substantially related. See Crawford W. Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720 (1) (373 SE2d 749) (1988). We agree with the trial court’s position. Appellants do not show how the matter of securing a certificate of need to build a nursing home in Georgia is substantially related to appellants’ failure or inability to comply with option contracts on nursing homes in Tennessee and South Carolina owned and operated by entities other than the one involved in the Georgia project. Appellants even admitted as much in their brief when they stated that “the certificate of need application and this litigation are not substantially related. . . .” Moreover, there was no evidence that client confidences or secrets had been or would be disclosed, or that any other improper actions had been or would be taken. This case is not like that of Crawford W. Long Mem. Hosp., supra, the holding of which “is limited to representation involving the same general subject matter . . . [C]ases [involving] different general subject matter [s], e.g., adverse representation involving contractual disputes, real-property matters, and unrelated tort claims would not contravene the rule.” 258 Ga. 720, 722, (fn. 2). See also Tipton v. Canadian Imperial Bank of Commerce, 872 F2d 1491 (11th Cir. 1989). Since the same subject matter is not involved and the circumstances of representation did not grow out of an event that occurred during the time of such representation (see Crawford W. Long Mem. Hosp., supra at 722), the trial court did not err in its denial of the motion to disqualify appellees’ counsel.

3. Appellees sued appellants for specific performance of two option contracts to purchase nursing homes owned by appellants and rented by appellees in Knoxville, Tennessee, and Greenwood, South Carolina. The parties have agreed that the contracts are to be construed in accordance with Tennessee and South Carolina state law respectively. The leases provide that at any time during the tenth year of the leases, the tenants, appellees, shall have the right at their option to purchase the premises and equipment from the appellants, the landlords. The sales price was to be as follows: “Tenant and Landlord shall each cause an appraisal to be made of the Leased Premises, including the Equipment thereon, by an MAI appraiser of its own choosing. The parties agree that the primary method of evaluation will be the income approach based on the income received by the Landlord from this Lease, and each party agrees to so instruct the appraiser chosen by such party. If said appraisers are in agreement as to the value of the Leased Premises and Equipment, then such value shall constitute the sales price of same. If, however, said appraisers are unable for any reason to agree on the value of the Leased Premises and Equipment, then said appraisers shall themselves choose a third MAI appraiser who shall then evaluate the Leased Premises and Equipment on the method used by the first two appraisers, and the value of his appraisal shall then be binding on Landlord and Tenant as to the sale price to be paid. The remaining terms and conditions of the sale shall be as agreed upon by the parties.”

When appellees sought to exercise their rights under the option contracts as described, appellants refused to comply. They contend that the options are void and unenforceable as a matter of law because the method for determining the purchase price is “imprecise and indefinite.” They also argue that since the remaining terms are still subject to negotiation, e.g., the time for closing, the method of payment, proration of expenses, etc., the contracts are unenforceable. The trial court disagreed with appellants’ position, and denied their motion for judgment on the pleadings. We affirm that judgment.

Linder South Carolina lav/, “[a]n agreement between two or more persons upon sufficient consideration to either do or not do a particular act is a contract. [Cits.] In order for a contract to be binding, there must be a mutual manifestation of assent between the parties as to the terms of the contract. [Cit.] Certain terms, such as price, time and place, are considered indispensable and must be set out with reasonable certainty. [Cit.] Where a contract does not fix a definite price, there must be a definite method for ascertaining it. [Cit.]” McPeters v. Yeargin Constr. Co., 350 SE2d 208, 210 (S.C. App. 1986). “[F]or a contract to be binding material ¡terms cannot be left for future settlement. [Cit.] However, absolute certainty is not required. . . . [Cit.] A contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties. Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438 (2) (292 SE2d 84) (1982). This is especially true where the contract provides the guidelines for the subsequent agreement. [Cit.]” Aperm of S. Car. v. Roof, 351 SE2d 171, 173 (S.C. App. 1986). The contract in question fits within the parameters of the applicable law. Both parties signed the contract documents, it is undisputed that sufficient consideration has been given and received for the exercise of the option, and appellants have given their assent by accepting the payments from appellees in that regard. The time (in the tenth year of the lease) and place (the Greenwood, South Carolina, nursing home) are certain, and there is a definite method for ascertaining the price of the property (the three-appraiser formula). Nor does the sentence that provides that “[t]he remaining terms and conditions of the sale shall be as agreed upon by the parties” destroy the “certainty requisite for a valid agreement.” Touche Ross & Co. v. DASD Corp., supra.

Decided July 11, 1989

Rehearing denied July 25, 1989

Flint, David H. Flint, Lynn C. Stewart, Timothy C. Batten, for appellants.

We reach the same conclusion under Tennessee law with regard to the contract to be performed there. Tennessee follows essentially the same rules as South Carolina with regard to contract construction. “ ‘The determination that an agreement is sufficiently definite is favored. Therefore, the courts will, if possible, so construe the agreement as to carry into effect the reasonable intention of the parties, if that can be ascertained. The law leans against the destruction of contracts for uncertainty, particularly where one of the parties has performed his part of the contract.’ [Cit.]” APCO Amusement Co. v. Wilkins Family Restaurants, 673 SW2d 523, 528 (Tenn. App. 1984). The contract was sufficiently definite under Tennessee law. Compare Parsons v. Hall, 199 SW2d 99 (Tenn. Supreme Ct. 1947), in which specific performance of a land sale contract was denied for lack of an effective date of the agreement, insufficient description of the subject property, lack of consideration for the offer to sell the property, and the absence of language giving the offeree the privilege of accepting the offer to sell after the term of the original lease. All of those elements are present in the contracts under consideration here. The trial court properly denied appellants’ motion for judgment on the pleadings.

Judgment affirmed in Case No. A89A0777. Appeal dismissed in Case No. A89A0778.

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

Powell, Goldstein, Frazer & Murphy, William G. Leonard, for appellees.