text:
    A90A1821.
    HARTLEY v. TAYLOR et al.
    (402 SE2d 372)
   McMurray, Presiding Judge.

Seeking damages for fraud, plaintiff Hartley brought suit against Energy Development Corporation, Hereth, Orr & Jones, Inc., Robert E. Carroll, Marjorie E. Carroll, Lucian Gago and Bill Taylor. During the course of the trial, defendants Gago and Taylor moved for a directed verdict. The trial court reserved its ruling on the motion.

The jury returned a verdict in favor of plaintiff and against all defendants. No judgment was entered upon the verdict.

Defendants Gago and Taylor filed a motion for judgment notwithstanding the verdict. Thereafter, the trial court entered an order granting defendants Gago’s and Taylor’s earlier motion for a directed verdict. It also entered an order granting defendants Gago’s and Taylor’s motion for judgment notwithstanding the verdict. The order granting defendants Gago’s and Taylor’s motion for judgment notwithstanding the verdict did not contain (1) an express determination that there was no just reason for delay and (2) an express direction for the entry of final judgment.

Plaintiff appeals, enumerating error on the grant of the motion for a directed verdict and the motion for judgment notwithstanding the verdict. Held:

Decided February 20, 1991.

McNeese & Associates, Nannette D. Garrett, Lynn S. McNeese, for appellant.

Dailey & Groover, Lewis M. Groover, Jr., for appellees.

Because judgment has not been entered with regard to defendants Energy Development Corporation, Hereth, Orr & Jones, Inc., Robert E. Carroll and Marjorie E. Carroll, this case remains pending in the trial court. Therefore, unless the order granting the motion for judgment notwithstanding the verdict was entered in accordance with the provisions of OCGA § 9-11-54 (b), the appeal must be dismissed. Cramer v. Parrott, 149 Ga. App. 385 (254 SE2d 504). The order granting the motion for judgment notwithstanding the verdict was not entered in accordance with OCGA § 9-11-54 (b). Accordingly, the appeal is premature and it must be dismissed. Cramer v. Parrott, 149 Ga. App. 385, supra. As it is said: “Piece-meal review is not favored by the courts.” Foley v. Shanahan, 133 Ga. App. 262 (211 SE2d 367).

Appeal dismissed.

Sognier, C. J., and Carley, J., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    A90A2211.
    DURHAM v. THE STATE.
    (402 SE2d 371)
   Carley, Judge.

Appellant was tried before a jury and found guilty of distributing cocaine in violation of OCGA § 16-13-30 (b). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. After a hearing, the trial court ruled that the State’s notice of its intent to introduce evidence of appellant’s commission of a crime was in compliance with Uniform Superior Court Rule 31.3. This ruling is enumerated as error.

The body of the notice given to appellant’s counsel contained the following statement: “[I]n accordance with Uniform Rule 31.3, . . . enclosed [is] a copy of [a prior accusation] and [appellant’s] guilty plea thereto. Regard this as a similar transaction. . . .’’In addition, the notice contained a postscript whereby appellant’s counsel was also informed to “regard the earlier case in aggravation of sentencing.” The contention is that this postscript caused appellant’s counsel to believe that similar crimes would be offered only in connection with sentencing.

Uniform Rule 31.3 (A) relates to a request for “leave to present during the trial of the pending case evidence of similar transactions or occurrences.” (Emphasis supplied.) Moreover, Uniform Rule 31.3 (F) expressly states that “ [t] his rule shall not apply to sentencing hearings.” (Emphasis supplied.) OCGA § 17-10-2 (a) provides that “only such evidence in aggravation as the [SJtate has made known to the defendant prior to his trial shall be admissible [at the sentencing hearing].” The notice that was given to appellant’s counsel is not vague, ambiguous, misleading or inadequate, but was obviously an attempt to apprise appellant’s counsel that the similar crime would be used during both the trial before a jury and the sentencing hearing before the trial court. The trial court correctly ruled that “the State had fully complied with Rule 31.3 and would, therefore, be allowed to introduce evidence of appellant’s commission of similar offenses. [Cits.]” Lasseter v. State, 197 Ga. App. 498, 500 (2) (399 SE2d 85) (1990).

Decided February 20, 1991.

Kenneth L. Chalker, Jr., for appellant.

Thomas J. Charron, District Attorney, W. Thomas Weathers III, Debra H. Bernes, Assistant District Attorneys, for appellee.

2. Appellant enumerates as error the introduction into evidence of his commission of the similar crime, urging that it impermissibly placed his character into issue. However, the evidence was clearly admissible to establish appellant’s identity and criminal intent. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). There is “an exception to the general rule against prejudicially putting a defendant’s character in issue. [Cit.] . . . [Wjhere its relevance . . . outweighs its prejudicial impact, it is properly admitted. [Cits.]” Kress v. State, 195 Ga. App. 519 (1) (394 SE2d 139) (1990).

Judgment affirmed.

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


text:
    A90A1560.
    DRIVER v. THE STATE.
    (402 SE2d 524)
   Carley, Judge.

By way of accusation, appellant was charged with driving under the influence. He waived his right to a jury trial and agreed to a trial before the probate court. The trial before the probate court was continued and, upon its recommencement, appellant filed a plea of double jeopardy. When the probate court overruled this plea, appellant filed a direct appeal to the superior court. The superior court dismissed the appeal and appellant now appeals to this court from the superior court’s order dismissing his direct appeal from the probate court.

Appellant relies upon Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982) as authority for the proposition that he is entitled to file a direct appeal to the superior court. That reliance is misplaced. The issue in Patterson was the direct appealability of the denial of a plea of double jeopardy to either the Supreme Court or this court pursuant to OCGA § 5-6-34. Such an appeal is in no way analogous to an appeal from the probate court to a superior court pursuant to OCGA § 5-3-2. Unlike an appeal to either the Supreme Court or this court, an appeal from the probate court to a superior court is for the purpose of conducting a de novo investigation in the superior court, and not for the purpose of correcting errors of law committed in the probate court. See City of Macon v. Ries, 179 Ga. 320, 325 (2) (176 SE 21) (1934). Since an appeal to the superior court is for the sole purpose of conducting a de novo investigation rather than the correction of errors of law, there can be no direct appeal to the superior court from an interlocutory ruling in the probate court. Hartley v. Holwell, 202 Ga. 724 (44 SE2d 896) (1947).

Decided February 4, 1991

Rehearing denied February 21, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

“ ‘Where either appeal or certiorari is a proper remedy the movant may elect which remedy he will pursue.’ ” (Emphasis supplied.) Stephens v. Bell, 41 Ga. App. 353, 356 (153 SE 99) (1930). However, an appeal is clearly not a proper remedy to secure review of the probate court’s interlocutory order and, insofar as appellant did not pursue certiorari, the applicability of the holding in Patterson v. State, supra, in the context of that procedure cannot be addressed in the instant appeal. Our holding is necessarily limited to affirming the superior court’s dismissal of appellant’s unauthorized appeal from the probate court’s interlocutory order. “It is very obvious that, where the statute refers to an appeal from any decision of the [probate] court . . ., it refers only to a decision of the entire case. Accordingly, the ruling of the [probate] court . . . [overruling appellant’s plea of double jeopardy] was not a decision of the case and was not a decision authorizing an appeal to the superior court.” Hartley v. Holwell, supra at 728.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A90A1672.
    VERTNER v. GERBER et al.
    (402 SE2d 315)
   Sognier, Chief Judge.

Mitchell Vertner brought suit against Fulton County; four county employees, Robert Gerber, W. C. Austin, Al Pierce, and Carl Smithwick; and Gregory Smith, a county prison inmate, to recover damages for injuries incurred when he was attacked by Smith. The trial court granted summary judgment to the county and the four county employees on the grounds of sovereign and official immunity, and Vertner appeals that ruling with regard to the individual defendants.

The record reveals that during the relevant time period, appellee Austin was deputy warden of the Alpharetta Correctional & Rehabilitation Center of the Fulton County correctional system (the “ACRC”). Appellee Gerber was director of the county Department of Planning & Community Development, which provided trash trucks and drivers to the ACRC to be used for inmate work details, and appellee Smithwick was a trash truck driver employed by the department. Appellee Pierce was included as a defendant in the lawsuit in his capacity as successor to the warden of the county correctional system at the time of the incident at issue. The ACRC housed county inmates serving sentences for misdemeanor offenses as well as some state inmates, but held no prisoners classified by the State as maximum security. In May 1985, Gregory Smith was a county inmate serving a 12 month sentence for criminal damage to property, a misdemeanor.

In his deposition, Austin described the procedure followed by the ACRC in processing new inmates and assigning them to work details. He explained that all inmates underwent a medical checkup at Bell-wood, a central facility, which then transferred a report to the ACRC indicating the extent to which the inmate was physically capable of serving on work crews. The ACRC also received a form detailing the personal history of the inmate. All other information in inmates’ files, including the complete report from the medical checkup, was retained at Bellwood pursuant to established correctional system procedure. Based on information gleaned from the reports he received and an interview with the incoming inmate, Austin then assigned inmates to an appropriate work crew for work to be performed outside the institution.

The history sheet transmitted to the ACRC on May 7, 1985 concerning Smith stated that he had been incarcerated five times previously, but did not indicate the offenses for which he was convicted. His medical classification authorized work “without restrictions.” Smith’s complete file, which was retained at Bellwood, revealed that he had been diagnosed as a chronic paranoid schizophrenic and that a dose of 1200 mg of thorazine per day had been prescribed for him. Austin testified he had been aware Smith was on some sort of medication, but did not know either the diagnosis or the type of medicine. After reviewing the available records and interviewing Smith, Austin assigned him to a trash truck detail run by Smithwick.

On May 24, 1985, Smithwick, who was not authorized to carry a weapon, left the ACRC with Smith and another inmate to pick up trash along the roadside in a residential area. Smith apparently became enraged by a directive given by Smithwick and began chasing Smithwick, threatening him with a pitchfork. When Smithwick ran to a nearby house to summon help, Smith followed. Appellant was servicing the air conditioning unit outside the house. Smith accosted appellant, threw him to the ground, and stabbed him in the head with the pitchfork, injuring him severely.

It is undisputed that Fulton County has no liability insurance coverage for this incident and thus cannot be held to have waived its sovereign immunity. See Ga. Const. 1983, Art. I, Sec. II, Par. IX. Nonetheless, the Supreme Court recently held in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990) that a county employee may be held liable for the negligent performance of a ministerial act or the willful and malicious performance of a discretionary act even if the county has not waived its immunity through the purchase of liability insurance. Appellant contends appellees negligently performed the ministerial duty of assigning Smith to a work detail and negligently failed to provide an armed guard, and that the trial court erred by concluding these acts were discretionary.

A government employee who is invested with discretion and empowered to exercise his judgment in the course of execution of his duties is considered a quasi-judicial officer, and is immune from liability when performing discretionary tasks that are within the scope of his employment and are not wilful, malicious, or corrupt. Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980). The question whether a duty is ministerial or discretionary turns on the character of the specific act, not the general nature of the official’s position. Id.; see Shuman v. Dyess, 175 Ga. App. 213, 216 (333 SE2d 379) (1985). “ ‘A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ [Cit.]” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990).

The record in the instant case shows that the correctional system’s warden, represented in this action by Pierce, delegated to Austin the task of reviewing information provided about the inmates, conducting his own examination of them, and then determining their work crew assignment. There is no evidence to suggest that he merely followed established guidelines in making these assignments; instead, his unrebutted testimony indicated that he evaluated and weighed the information available and made decisions based on his judgment and experience. We agree with appellees that these acts were analogous to those of the prison warden in Price v. Owen, 67 Ga. App. 58 (19 SE2d 529) (1942), whose actions in supervising the performance of inmate work crews were held to be discretionary. Although appellant alleges that Smith’s file indicates he was designated under the State Board of Offender Rehabilitation regulations as an inmate needing “close” supervision, Austin testified that the state security classification system was used only for state inmates in county custody, and that the designation of a county inmate as “close” meant that he was serving a 12 month sentence. Similarly, Austin’s decision not to send an armed correctional officer with the trash crews was an exercise of his judgment, and there is no evidence that the state regulation concerning armed guards referenced by appellant in his brief applies to county prisoners. Even if appellant’s allegations can be construed to allege negligence of any appellee in the failure to request or provide the ACRC with inmates’ complete files, that decision also required the exercise of personal deliberation and judgment. Moreover, contrary to appellant’s arguments in his brief, there is no evidence in the record to suggest that appellees’ actions were wilful or malicious.

Decided February 6, 1991

Rehearing denied February 21, 1991

Jordan & Bodner, H. Garold Jordan, Leigh R. Bodner, for appellant.

Webb & Daniel, Paul Webb, Jr., William C. Gentry, Marcia D. Ernst, for appellees.

Since we have determined that the challenged acts of the warden and Austin were discretionary, and there is no evidence Gerber and Smithwick participated in any decisions at issue, we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

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


text:
    A90A2054.
    SMITH v. THE STATE.
    (402 SE2d 738)
   Carley, Judge.

After being arraigned, appellant was reindicted and rearraigned. He then filed a special demurrer to both the original indictment and the reindictment. The trial court denied the special demurrers and appellant was thereafter brought to trial on yet another reindictment wherein he was charged with the commission of kidnapping, attempted aggravated sodomy, and two counts of aggravated assault. He was found guilty of kidnapping and two counts of simple battery and appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The trial court’s denial of appellant’s special demurrers is enumerated as error.

The special demurrers were untimely because they were filed after appellant’s arraignment on the original indictment and on the first reindictment. Iona v. State, 260 Ga. 83, 84 (2) (389 SE2d 754) (1990); Rule 31.1 of the Uniform Rules for the Superior Courts. Moreover, the denial of appellant’s special demurrers is clearly a moot issue since he was tried on neither the original indictment nor the first re-indictment, but on a subsequent reindictment.

2. OCGA § 17-7-53.1 provides that, if two indictments charging the same offense have been, returned and quashed, any future prosecution for that offense is barred. Although two indictments had been returned against appellant before he was eventually brought to trial on the second reindictment, neither the original nor the first reindictment was quashed. By its terms, OCGA § 17-7-53.1 contemplates the trial court’s actual quashing of two prior indictments, not the trial court’s mere denial of two prior special demurrers. It follows that the trial court correctly ruled that OCGA § 17-7-53.1 was not a statutory bar to appellant’s instant prosecution on the second reindictment.

3. Appellant made a pre-trial motion to exclude television cameras from the courtroom. In support thereof, appellant testified that he had already received threats from his fellow inmates based upon the pending criminal charges against him and that the presence of television cameras in the courtroom would, therefore, make him so nervous and self-conscious that he would be unable to testify effectively in his own defense. The trial court denied appellant’s motion, concluding that it did not “have any choice in the matter.” This ruling is enumerated as error.

The trial court erred in concluding that it did not “have any choice in the matter.” Appellant had not moved for a closed proceeding. Compare R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982). Appellant’s motion sought only to exclude television cameras from the proceedings. Accordingly, “ [t]he proper standard in this case is an exercise of discretion. [Cit.]” Georgia Television Co. v. State, 257 Ga. 764, 765 (2) (363 SE2d 528) (1988).

The question yet remains, however, whether this error is such as to require the reversal of appellant’s convictions and mandate a retrial. As noted, appellant’s contention was that, based upon fears for his personal safety, the presence of television cameras would render him a less effective witness in his own defense. The record demonstrates, however, that appellant did testify as the only witness in his own defense and that he was highly effective. In his trial testimony, appellant, in effect, acknowledged his commission of acts which would authorize a finding of his guilt for kidnapping and simple battery, but he denied commission of acts which would authorize a finding of his guilt for attempted aggravated sodomy and aggravated assault. Appellant was convicted of only the former crimes. Thus, he was obviously successful in convincing the jury not only to disbelieve the State’s witnesses, including the prosecutrix herself, but also to discount his own post-arrest statement which was significantly more inculpatory than his trial testimony.

“[T]he bare assertion of fear may, but ordinarily should not, be sufficient [to authorize the exclusion of television cameras].” State v. Palm Beach Newspapers, 395 S2d 544, 548 (5) (Fla. 1981). Assuming that appellant’s pre-trial assertions “may” have been sufficient to have authorized the trial court’s exclusion of television cameras in the exercise of its discretion, the record nevertheless demonstrates that his fear ultimately proved to be unfounded. Despite appellant’s asserted pre-trial fear, the presence of television cameras did not result in his becoming a less effective witness in his own defense and the trial court’s denial of the motion would notj therefore, constitute reversible error. “The burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of constitutional or statutory rights, an appellate court will not reverse. [Cit.]” Hadden v. State, 181 Ga. App. 628, 630 (4) (353 SE2d 532) (1987).

4. The trial court’s giving of a modified and limited Allen charge is enumerated as error. However, the charge itself was not, as appellant contends, coercive. See generally Reed v. State, 134 Ga. App. 47, 50 (7) (213 SE2d 147) (1975). That the instruction was given in the original jury charge and not as a recharge after the jury had begun its deliberations is of no consequence. The trial court has “discretion as to the time when the jurors should be informed as to their duties. . . .” Mize v. State, 140 Ga. App. 17, 20 (5) (230 SE2d 81) (1976).

5. The trial court’s failure to charge the jury that it was to determine the voluntariness of appellant’s in-custody statement is enumerated as error.

“Since [appellant] did not request a charge on voluntariness, there was no error in failing to give such a charge. [Cit.]” Williams v. State, 153 Ga. App. 421, 422 (2) (265 SE2d 341) (1980). Moreover, as noted above, the jury obviously discounted the more inculpatory contents of appellant’s in-custody statement and based its verdict on appellant’s less inculpatory trial testimony.

Decided February 4, 1991

Rehearing denied February 21, 1991

W. Keith Davidson, for appellant.

Robert E. Wilson, District Attorney, Elisabeth G. MacNamara, Robert M. Coker, Assistant District Attorneys, for appellee.

6. The State gave pre-trial notice of its intent to introduce, as evidence of a similar transaction, appellant’s prior conviction for a sexual offense. No hearing on the admissibility of this evidence was held until after commencement of the trial. Appellant enumerates as error the trial court’s failure to have held a pre-trial hearing to determine the admissibility of his prior conviction.

“[W]hile it is preferable that the hearing be held before trial, it is not reversible error to conduct the hearing in mid-trial where . . . appellant can show no prejudice suffered from the failure to have the hearing before trial.” Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990). Appellant had “[f]air and adequate notice of the State’s intention to utilize evidence of similar transactions. ...” Cox v. State, 197 Ga. App. 240 (1) (398 SE2d 262) (1990). The prior transaction was so similar to the crimes for which appellant was being tried that he must have reasonably anticipated that, regardless of when the hearing was held, the trial court would find evidence thereof to be admissible. Compare Grogan v. State, 192 Ga. App. 234 (384 SE2d 441) (1989). Moreover, appellant was not found guilty of any crime of a sexual nature. “Consequently, in this case we find no prejudice to [appellant]. [Cit.]” Cox v. State, supra at 240 (1).

Judgments affirmed.

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


author: McMurray, Presiding Judge.

text:
    A90A1717.
    DEPARTMENT OF HUMAN RESOURCES et al. v. MADDOX.
    (402 SE2d 771)
   McMurray, Presiding Judge.

On June 20, 1983, plaintiff Maddox executed an affidavit and acknowledgment of paternity, in connection with a previous action to recover child support, stating that he was the natural father of S. L. G. Thereafter, plaintiff consented to the superior court’s entry in the previous action of an order finding that plaintiff is the natural father of S. L. G. and requiring plaintiff to pay for the support of S. L. G.

On September 8, 1989, plaintiff initiated the case sub judice by filing his “complaint for determination of paternity” seeking an order declaring that he is not the natural father of S. L. G. Plaintiff’s complaint named S. L. G. and the child’s mother as defendants. The Georgia Department of Human Resources answered the complaint and filed a counterclaim for child support arrearages which had accrued pursuant to the prior order.

Decided February 21, 1991.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellants.

Allen & Perry, Roy L. Allen II, for appellee.

Plaintiff’s complaint was accompanied by a motion that the superior court order blood tests, including human leucocyte antigen (HLA) testing. While defendants opposed this motion, the superior court ordered that the parties submit themselves to the blood test provided under OCGA § 19-7-43.

The trial court certified its order for immediate review and we granted defendants’ application for appellate review. Held:

Under our decision in Department of Human Resources v. Brown, 196 Ga. App. 875 (1), 876 (397 SE2d 73), “the application of the doctrine of res judicata clearly proscribes the trial court’s reconsideration of the issue of paternity. [Cits.] Accordingly, the trial court’s order requiring that the minor [child] and [her] mother submit to paternity blood testing is erroneous and must be reversed.”

Judgment reversed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A1792.
    FLOWERS v. MEMORIAL MEDICAL CENTER, INC.
    (402 SE2d 541)
   McMurray, Presiding Judge.

Plaintiff, Van Flowers, the surviving spouse of Julia Flowers, brought suit against Memorial Medical Center, Inc. The material allegations of the complaint read as follows: “1. The Defendant is a corporation . . . and is subject to the jurisdiction of this Court. 2. On or about February 8, 1988, Julia Flowers, the deceased, was a patient at the Defendant’s hospital. 3. While the deceased was being examined, she tried to stand, and the nurses assigned to her care were unable to hold her up. 4. As a result, the deceased, Julia Flowers, fell and broke her hip. 5. As a result of said negligence of Defendant’s employees, the deceased suffered substantial pain and suffering.” The complaint was filed without an accompanying expert’s affidavit.

Decided February 21, 1991.

Grady K. Reddick, for appellant.

Hunter, MacLean, Exley & Dunn, Kirby C. Gould, Lee C. Mun-dell, for appellee.

Defendant moved to dismiss the complaint because plaintiff failed to attach an expert’s affidavit pursuant to OCGA § 9-11-9.1. The trial court granted defendant’s motion and plaintiff appeals. Held:

“[T]he purpose of OCGA § 9-11-9.1 is to prevent ‘frivolous or unsuitable actions,’ i.e., professional malpractice actions in which the plaintiff cannot prove by expert opinion that a professional standard or practice has been violated. But where . . . the plaintiff can prove negligence or breach without proof of a customary procedure and violation of it, the case is not a professional malpractice case and OCGA § 9-11-9.1 does not apply to require an ‘expert’s affidavit.’ It is not the intent of OCGA § 9-11-9.1 to cause dismissal of a complaint alleging negligence or breach of a duty merely because the defendant asserts he is a ‘professional.’ ” Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489).

In the case sub judice, the complaint can be construed as setting forth a professional malpractice case; but it can also be construed as setting forth a simple negligence case. See Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (3) (395 SE2d 809) wherein the Supreme Court recognized that “there are instances in which actions performed by or under the supervision of a professional are nevertheless not professional acts constituting professional malpractice, but, rather, are acts of simple negligence which would not require proof by expert evidence.” See also Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (354 SE2d 872), in which a nurse’s decision to move a patient from a stretcher or casting table to a wheelchair was deemed “an act of relative physical strength and dexterity rather than an act requiring the exercise of expert medical judgment.” To the extent the complaint can be construed as setting forth a simple negligence case, the trial court erred in granting defendant’s motion to dismiss. See Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (3), supra.

Judgment reversed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A1968, A90A1969.
    ROBERTS v. CHEW (two cases).
    (402 SE2d 770)
    Decided February 21, 1991.

      G. Leonard. Liggin, for appellant.

      Chew & Lamberth, Walter S. Chew, Jr., Donald L. Lamberth, for appellee.
   McMurray, Presiding Judge.

The Probate Court of Macon County, Georgia, entered separate orders granting guardianship fees to William T. Roberts from the estates of Estelle Walker and Edgar M. Walker. The probate court awarded the guardianship fees based on Roberts’ relinquishment of the wards’ assets to their respective estates. Walter S. Chew, Jr., as the Executor of the Estate of Estelle Walker and as the Administrator of the Estate of Edgar M. Walker, filed appeals to the superior court and the awards were reversed. William T. Roberts then filed direct appeals. Held:

As compensation for services, a guardian shall receive a commission on “all sums paid out by him, either for- debts, legacies, or distributive shares.” OCGA § 53-6-140 (a). However, no such commission shall be paid for handing over trust assets to a successor fiduciary. OCGA §§ 53-6-142; 29-2-43. In the cases sub judice, the superior court did not err in reversing the probate court’s awards to Roberts for transferring trust assets to the Walkers’ respective estates.

Judgments affirmed.

Carley, J., concurs. Sognier, C. J., concurs in the judgment only.


text:
    A90A1535.
    CHRYSLER CREDIT CORPORATION v. BROWN.
    (402 SE2d 753)
   Sognier, Chief Judge.

Melva Brown brought suit in Coffee County against Chrysler Motors Corporation (“Chrysler”) and Coffee Chrysler-Plymouth-Dodge (the “dealer”), alleging fraud in her purchase of a Chrysler automobile represented as new when in fact it had been sold or leased previously. Both defendants answered. After discovery revealed that Chrysler Credit Corporation (“Chrysler Credit”) previously had financed a sale of the same car to another buyer, Brown sought and obtained leave of court to add Chrysler Credit as an additional defendant, and filed an amended complaint. Chrysler Credit’s registered agent for service was served on July 25, 1989, but no answer was filed by Chrysler Credit. On December 14, 1989, Brown voluntarily dismissed Chrysler and the dealer and took a default judgment against Chrysler Credit. Both the dismissal and the default judgment were filed on December 15, 1989. The judgment recited that the issue of damages had been tried before the court without a jury, and awarded damages in favor of Brown and against Chrysler Credit for $511,397. On January 16, 1990, Chrysler Credit moved the court to set aside the judgment and open the default, and for a new trial. The trial court denied the motions, and we granted Chrysler Credit’s application for leave to appeal.

1. Appellant first contends the trial court erred by denying its motion to set aside the judgment because it was given no notice of the hearing during which evidence was heard on the issue of damages, such notice was required by OCGA § 9-11-55 (a), and the lack of notice constituted a nonamendable defect appearing on the face of the record. See OCGA § 9-11-60 (d). Appellant argues that a proper construction of OCGA § 9-11-55 (a) (which provides that if an action in default is ex delicto or involves unliquidated damages, the plaintiff must prove damages before the court without a jury, with the defendant having the right to introduce evidence as to damages as well) compels the conclusion that notice must be given for ex delicto and unliquidated claims. Thereafter, appellant contends, both parties have the right to move for a new trial as to damages, and the defendant is entitled to a jury trial if a pleading is filed raising that issue.

We do not agree. The issue appellant raises here regarding the applicability of OCGA § 9-11-55 (a) has been decided adversely to it in Newell Road Bldrs. v. Ramirez, 126 Ga. App. 850 (192 SE2d 184) (1972). Further, OCGA § 9-11-5 (a) specifically provides that “the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial.” See generally Hulsey Pool Co. v. Troutman, 167 Ga. App. 192, 193 (306 SE2d 83) (1983) (held, local rule requiring notice prior to hearings must yield to State law as expressed in OCGA § 9-11-5 (a)). Accordingly, the trial court did not err by denying appellant’s motion on this ground.

2. Appellant next contends the trial court erred by failing to set aside the judgment on the ground that the court lacked jurisdiction over it. Appellant argues that venue, a part of jurisdiction, was improper as to it in Coffee County because it had no office in Coffee County, and since venue in Coffee County depended upon the “residence” there of the dealer, when the dealer was dismissed venue was no longer proper in Coffee County. Although we could agree with appellant’s contention if venue in Coffee County were based only on Ga. Const. 1983, Art. VI, Sec. II, Par. IV, which provides that suits against joint tortfeasors residing in different counties may be tried in either county, we find that venue was proper in Coffee County on another basis, and thus we cannot agree with appellant’s contention.

OCGA § 14-2-510 (b) (3) provides that for purposes of determining venue in tort actions against corporations the “residence” of the corporation, and consequently the proper venue, shall be deemed to be “in the county where the cause of action originated, if the corporation has an office and transacts business in that county.” In the case at bar, it is uncontroverted that appellant is a foreign corporation registered to do business in Georgia; that its registered office is in Fulton County but it transacts business in Coffee County; and that the cause of action originated in Coffee County. Thus, the sole issue is whether appellant has an “office” in Coffee County. The record reveals that in opposition to appellant’s motions, appellee submitted 13 affidavits in which the affiants averred that they had purchased vehicles through the dealership or its predecessor and financed them with appellant, and the paperwork was furnished, completed, and handled solely by the dealership employees in Coffee County.

In Musgrove v. Kirksey Ford Sales, 159 Ga. App. 276 (283 SE2d 292) (1981), a tort suit was filed in Decatur County against a local car dealership and Ford Motor Credit Company. After the local dealership was voluntarily dismissed, Ford Motor Credit moved for dismissal as to it on the ground of improper venue. This court reversed the trial court’s grant of the motion, finding that although Ford Motor Credit’s registered office and agent were in Fulton County, because of various factors, including the dealership’s performance of certain functions on behalf of Ford Motor Credit such as taking credit applications, completing the paperwork, and taking payments, Ford Motor Credit was deemed to have an “office” in Decatur County, rendering venue against it proper there under former Ga. Code Ann. § 22-510 (b) (currently OCGA § 14-2-510 (b)).

We find the evidence presented in appellee’s affidavits sub judice sufficiently similar to that in Musgroue, supra, to have authorized the trial court, as the finder of fact, to find that venue was proper in Coffee County because appellant had an “office” there. (We note that although it appears that the affidavits were served upon appellant on the day of the hearing on the motions, and OCGA § 9-11-6 (d) provides that affidavits offered in opposition to a motion must be served not later than one day before the hearing, contrary to appellant’s argument the trial court, in its discretion, may consider affidavits which, on their face, are untimely because served on the day of the hearing, and it is unnecessary that the record show affirmatively that a motion to extend the time was made and granted. Leagan v. Leuine, 158 Ga. App. 293, 294-295 (1) (279 SE2d 741) (1981). Accord Blair v. Motorized Leasing, 173 Ga. App. 283 (1) (325 SE2d 896) (1985), overruled on other grounds, Adams v. D & D Leasing Co., 191 Ga. App. 121 (381 SE2d 94) (1989).)

Moreover, the record in this case does not include a transcript of the hearing on appellant’s motions, and we must presume, therefore, that the trial court’s finding in this regard was supported by the evidence presented at the hearing. See In the Interest of C. C. B., 188 Ga. App. 46 (3) (372 SE2d 6) (1988). “This court will not interfere with the judgment of the trial court on a motion to set aside a judgment for lack of personal jurisdiction if there is any evidence to support it.” Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989). Accordingly, we find the trial court did not err by denying appellant’s motion to set aside the judgment for lack of jurisdiction. Adair Realty, supra.

3. Appellant enumerates as error the trial court’s denial of its motion for a new trial made on the grounds that the judgment was contrary to law and the evidence. Although appellee alleged her entitlement to punitive damages in the body of her complaint, she prayed only for $500,000 in unspecified damages. The judgment entered against appellant recites only that appellee recover from appellant the sum of $511,397, and does not specify what portion of the recovery, if any, is punitive, rather than compensatory, damages. Nonetheless, because the sales finance contract attached to the complaint indicates that the sale price of the automobile was $21,397, and the gravamen of appellee’s complaint was that she was damaged as a result of an alleged misrepresentation, it appears obvious that a large portion of the award was punitive, and not compensatory, in nature. The record on appeal does not include a transcript of the damages hearing, and ordinarily in such case we would presume that evidence was presented to support the award. See In the Interest of C. C. B., supra.

Because we find that the judgment below is contrary to law in two respects, however, we are persuaded that under the circumstances present here, application of such a presumption would be a manifest injustice. First, we are faced with a judgment which in several respects violates a specific statute. “An award of punitive damages must be specifically prayed for in a complaint. In any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings.” OCGA § 51-12-5.1 (d) (1). Pretermitting the question whether appellee’s allegation in the body of her complaint satisfies the statute’s requirement that punitive damages be “specifically prayed for,” the judgment reveals on its face that the trier of fact failed either to make a specific finding that punitive damages were awardable here or to set a specific amount in accordance with the mandate of OCGA § 51-12-5.1 (d) (2). Both of these defects render the judgment violative of OCGA § 51-12-5.1 (d). Moreover, OCGA § 51-12-5.1 also provides, in subsection (g), that for any tort action not arising from product liability or where it is not found that the defendant acted, or failed to act, with the specific intent to cause harm, “the amount [of punitive damages] which may be awarded in the case shall be limited to a maximum of $250,000.00.” No finding was made as to whether appellant acted with specific intent to cause harm, and the judgment entered in this case does not separate the amounts awarded as compensatory and punitive damages. Consequently, we are unable to ascertain whether the judgment is in compliance with OCGA § 51-12-5.1 (g), and if it is not, what amount must be written off.

Second, the proper measure of compensatory damages in an action alleging fraud in the sale of personalty is the difference between the value of the item as represented by the seller and its actual value at the time of delivery. See Murdock v. Godwin, 154 Ga. App. 824, 826 (4) (269 SE2d 905) (1980). This case did not involve personal injury, and even assuming the car had no actual value, the award bears no rational relationship to the injury in that it is approximately 24 times the largest possible amount of property damage. Accordingly, we find that the judgment was contrary to law, see Colonial Pipeline Co. v. Brown, 258 Ga. 115, 122-123 (5), (6) (365 SE2d 827) (1988), and the trial court erred by denying appellant’s motion for a new trial as to damages.

4. Our decision in Division 3, supra, invalidates the final judgment and returns this case to the posture it occupied before final judgment was entered, i.e., in default as to liability. We must consequently address appellant’s contention that the trial court erred by denying its motion to open the default. See generally P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328-329 (1) (329 SE2d 545) (1985). Generally, whether the trial court opens a default is a matter resting within its sound discretion, but under OCGA § 9-11-55 (b) the movant must show, inter alia, some legal excuse for failing to answer. Id.; Millholland v. Stewart, 166 Ga. App. 431, 432-433 (1) (304 SE2d 533) (1983). “In order for this court to intervene in this proceeding, we must find as a matter of law that there is nothing less than reasonable evidence of excusable neglect on the part of [appellant] and that perforce the trial court acted arbitrarily and abused its discretion.” U. S. Elevator Corp. v. Smyrna Hosp., 182 Ga. App. 886, 888 (357 SE2d 322) (1987). As the record shows that appellant failed to demonstrate any semblance of a legal excuse for failing to answer, but showed at best only that its failure was inadvertent rather than willful, the trial court did not abuse its discretion by failing to grant appellant’s motion to open the default. See id.; see generally Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441-442 (1) (385 SE2d 307) (1989).

Judgment affirmed in part, reversed in part and case remanded.

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

Decided February 11, 1991

Rehearing denied February 22, 1991

Barrow, Sims, Morrow & Lee, R. Stephen Sims, Alston & Bird, Earle B. May, Jr., G. Conley Ingram, for appellant.

Hudson & Solomon, James D. Hudson, for appellee.


text:
    A90A1938.
    CC & B INDUSTRIES, INC. v. STROUD.
    (402 SE2d 527)
   Carley, Judge.

Appellant-Subcontractor brought the instant action to foreclose its lien on the real property of appellee-Owner. The trial court, sitting without a jury, found in favor of the Owner and the Subcontractor appeals.

1. The Subcontractor enumerates the general grounds, urging that the evidence did not authorize a finding in favor of the Owner.

The Owner relied upon OCGA § 44-14-361.2, which provides for the dissolution of the lien upon the securing of the contractor’s sworn written statement that the agreed price or reasonable value of the labor, services, or materials have been paid. This statute contemplates a single affidavit that the agreed price or reasonable value of all the labor, services, or materials employed in the completed project have been paid and not, as the Owner contends, periodic affidavits that the agreed price or reasonable value of some of the labor, services, or materials employed to date in the ongoing project have been paid. Massachusetts Bonding & Ins. Co. u. Realty Trust Co., 142 Ga. 499, 503 (2) (83 SE 210) (1914). See also Star Mfg. v. Edenfield, 191 Ga. App. 665 (2) (382 SE2d 706) (1989); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 641 (1) (171 SE2d 782) (1969). The Owner produced no affidavit which would satisfy the requirements of OCGA § 44-14-361.2 and it follows that there was no dissolution of the Subcontractor’s lien pursuant to that statutory provision.

2. OCGA § 44-14-361.1 (a) (3) requires that the lienholder commence an action to recover the amount of his claim within 12 months from the time it became due. Contrary to the Owner’s contentions, the evidence of record demonstrates the Subcontractor’s compliance with this requirement. See Coe & Payne Co. v. Foster & Kleiser, 258 Ga. 161 (366 SE2d 292) (1988).

3. The record demonstrates no evidence which would authorize the trial court to find against the Subcontractor and in favor of the Owner. It follows that the judgment is erroneous and must be reversed.

Judgment reversed.

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

Decided February 8, 1991

Rehearing denied February 22, 1991

Hatcher, Irvin & Pressley, Henry M. Hatcher, Jr., for appellant.

Campbell & Dreger, Richard J. Dreger, for appellee.

On Motion for Rehearing.

Contrary to the construction that is advanced by the owner, subsection (a) (2) of OCGA § 44-14-361.2 does not provide for the dissolution of a lien upon the securing of a periodic affidavit that the agreed price or reasonable value of some of the labor, services, or materials employed to date in the ongoing project have been paid. OCGA § 44-14-361.2 (a) (2) (A) provides who can give the affidavit and OCGA § 44-14-361.2 (a) (2) (B) provides when the affidavit can be given. Nothing in that Code section supports the proposition that the holding in Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 503 (2) (83 SE 210) (1914) that was relied upon in our original decision has been legislatively superseded.

Motion for rehearing denied.


text:
    A90A2118.
    RANSON v. THE STATE.
    (402 SE2d 740)
   Sognier, Chief Judge.

Milton Bernard Ranson was convicted of attempted theft by taking of a motor vehicle, possession of tools for the commission of a crime, and giving a false name to a law enforcement officer, and he appeals.

The evidence adduced at trial showed that at approximately 3:00 a.m. on December 1, 1989, Officer Bradley D. Ingles of the Gwinnett County Police Department was on routine patrol in Lawrenceville when he noticed a car pulled over on the side of the road. Based on suspicions aroused by his conversation with the driver of that car, he decided to investigate the surrounding areas and, turning off his headlights, he entered the drive of an office park across the road. He then observed backed up to a building a large tractor trailer moving van, the owner of which was identified on the side of the cab as William Burton. Judging from the amount of exhaust generated by the truck, Ingles concluded its engine had just been started.

Ingles approached the driver’s door and observed a man wearing overalls, later identified as appellant, sitting in the driver’s seat. When asked his name, appellant stated he was William Burton, but could not produce identification. Appellant stated that his wife had brought him to the parking lot but had then left, and that he was checking the truck to see if it would develop air pressure. Appellant informed Ingles that he was licensed to drive in Indiana. However, when Ingles asked the police dispatcher to run a check of Indiana driver’s licenses, appellant asserted that he was licensed in New Jersey. He stated at different times that his brother owned the truck, and that both he and his brother owned it.

While appellant purported to look for the registration (which was never produced), Ingles circled the cab and noticed that the wing window on the passenger side was broken. He also observed broken glass on the ground. When appellant then gave a different date from the one he had originally given Ingles as his birth date, Ingles arrested him, placed him in the back seat of the patrol car, and advised him of his rights. Ingles had noticed an attache case in the cab when appellant was searching for the registration, and he inspected the interior of the cab once appellant had been secured in the patrol car, hoping to find a clue to the identity of the owner of the truck. He found a local address for William Burton in the attache case, and Burton was called. Ingles informed appellant that the real William Burton was en route to the scene, and appellant then admitted his true name and address.

Ingles found a brown nylon bag containing tools and broken glass on the floor in front of the passenger seat, and several loose tools around the driver’s seat. The truck’s starter switch had been broken out of its plastic cowling, the switch was missing, and the wires were twisted together. The back door of the trailer had been unlocked, and its padlock was missing and was not located in a search of the parking lot. Boxes inside the trailer, which contained furniture, had been torn open. Ingles testified that appellant denied the burglary tools belonged to him.

1. We find the evidence set forth above sufficient to authorize the jury to convict appellant on all three counts under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Thomas v. State, 193 Ga. App. 419, 421 (388 SE2d 32) (1989).

2. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal on the charge of possession of tools for the commission of a crime because the tools were ordinary household tools which Ingles and another officer testified they themselves possessed, and consequently this case is controlled by our holding in Burnette v. State, 168 Ga. App. 578, 580 (2) (b) (309 SE2d 875) (1983). We' do not agree. In Burnette, the tools were rusty, no evidence was adduced that they had been used recently, and the burglarized premises showed no sign of forcible entry. In the case sub judice, the tools were spread out in the cab, the nylon tool bag contained broken glass, and the truck window was broken, thereby indicating that the tools had been used to break into the truck and distinguishing this case factually from Burnette. See generally Hayes v. State, 193 Ga. App. 33, 35 (5) (387 SE2d 139) (1989).

A directed verdict of acquittal may be granted only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty. . . .’” OCGA § 17-9-1 (a). The evidence as to this count did not demand a verdict of not guilty, and thus the trial court did not err by denying appellant’s motion. Horton v. State, 194 Ga. App. 797, 798 (1) (a) (392 SE2d 259) (1990).

3. The indictment charged appellant with criminal attempt to commit theft by taking a motor vehicle in that he performed a number of acts which constituted substantial steps toward the commission of the crime. The acts alleged in the indictment included breaking the window of the cab, removing the ignition wire cover, “hot wiring” the engine, removing the trailer’s padlock, entering the trailer, and tearing open a box containing furniture. During its deliberations, the jury sent a note to the trial court asking whether the State was required to prove beyond a reasonable doubt all the allegations in the indictment. In two enumerations, appellant contends the trial court erred by failing to respond to that question in the affirmative when recharging the jury, and by denying appellant an opportunity to be heard before the recharge. We find no merit in these enumerations.

(a) In its recharge to the jury, the trial court reinstructed the jury on the essential elements of criminal attempt and of theft by taking; on parties to a crime; and on the requirement that the State prove each essential element of the crime beyond a reasonable doubt. This recharge was a correct statement of the law. OCGA § 16-4-1 provides that “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” Because the statute requires proof of only one act which is a substantial step toward the commission of the crime, inclusion in the indictment of more than one such act is mere surplusage, which is “ ‘unnecessary to constitute the offense, need not be proved, and may be disregarded. (Cits.)’ [Cits.]” Hamlin v. State, 193 Ga. App. 453, 454 (388 SE2d 48) (1989). Appellant thus sought to have the judge recharge the jury on an incorrect principle of law, and we find no error in the trial court’s failure to accede to the request. See generally Powell v. State, 192 Ga. App. 688-689 (2) (385 SE2d 772) (1989).

(b) Appellant cites no authority, and we have found none, establishing a constitutional right to be heard before the jury is recharged. Appellant was afforded the right to note his exception to the recharge as given, and in light of that and our finding in Division (3) (a) that the recharge as given was correct, no error resulted from the trial court’s failure to allow appellant to be heard on this issue. See Simmons v. State, 172 Ga. App. 695, 696-697 (2) (324 SE2d 546) (1984).

4. Appellant contends the trial court erred by admitting into evidence as a similar crime a certified copy of appellant’s 1976 conviction for possession of tools commonly used in the commission of theft, without requiring further evidence of similarity. We find no merit in this contention. “Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Frazier v. State, 195 Ga. App. 599, 600 (6) (394 SE2d 396) (1990). Introduction into evidence of a certified copy of the 1976 conviction was sufficient to satisfy both the identity and the similarity requirements. Id.

5. Appellant’s assertion that the trial court failed to instruct the jury that the State had the burden of proving all material allegations of the indictment is not supported by the record. See Division 3 (a).

6. Appellant maintains that the trial court’s charge on the presumption of witnesses’ truthfulness was burden shifting and therefore constitutionally infirm. “ ‘Although we have held that such presumption-of-truthfulness charges can be misleading, and are of little positive value, and have recommended that their use be discontinued, we have nevertheless noted that they have [been] held not to be, as [appellant contends], unconstitutionally burden-shifting. (Cit.)’ [Cits.]” Head v. State, 191 Ga. App. 262, 265 (7) (381 SE2d 519) (1989).

7. Appellant enumerates as error the trial court’s imposition of a ten year sentence with seven years to serve on the charge of attempted motor vehicle theft, based on the fact that it was appellant’s “third theft related charge.” Appellant argues that only one of his prior convictions was actually for theft. We perceive appellant’s argument to be merely a matter of semantics, however, as our review of the evidence demonstrates that both prior convictions were “theft related.” Moreover, upon conviction for criminal attempt, OCGA § 16-4-6 (b) authorizes a sentence of one-half the maximum time authorized for the completed crime, and OCGA § 16-8-12 (a) (4) (A) permits a sentence of 20 years for even a first conviction of motor vehicle theft. The sentence imposed was within the range authorized by the statute and thus appellant’s objections must be addressed by the sentence review panel as provided in OCGA § 17-10-6. Head, supra at 265 (9).

8. Appellant urges error was committed in the trial court’s charging the jury on parties to a crime, when the State failed to request this charge in writing at the commencement of trial as required by USCR 10.3. Pretermitting the fact that no penalty is stated for failure to follow the dictates of this rule, giving the charge cannot have been error because it clearly was authorized by the evidence. “Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. [Cit.]” Johnson v. State, 185 Ga. App. 505, 506 (1) (364 SE2d 893) (1988).

Decided February 5, 1991

Rehearing denied February 22, 1991

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Carley, J., concurs in Divisions 1, 2, 3, 5, 6, 7, 8, and in the judgment.


text:
    A90A2162.
    WILLIAMS et al. v. OPRICIU.
    (402 SE2d 744)
   Sognier, Chief Judge.

Donna and Wayne Williams brought suit in Chatham County Superior Court against Mircea Opriciu and the Hertz Corporation to recover damages allegedly incurred as a result of a collision between Ms. Williams’ car and an automobile rented from Hertz and driven by Opriciu. The jury rendered verdicts in favor of the plaintiffs against Opriciu, but awarded only $823.31 to Ms. Williams and nothing to Mr. Williams on his loss of consortium claim. The Williamses appeal from the denial of their motion for new trial. This court has jurisdiction because Mr. Williams was authorized to file a direct appeal, Boatner v. Kandul, 180 Ga. App. 234 (2) (348 SE2d 753) (1986), and thus the judgment for Ms. Williams is reviewable on direct appeal pursuant to OCGA § 5-6-34 (d).

1. Appellants contend the verdict for Ms. Williams was inadequate as a matter of law because her undisputed medical expenses and lost wages exceeded the amount of the verdict. The evidence adduced at trial established that she suffered from cerebral palsy and had balance problems and scoliosis as a result. The collision at issue occurred on November 13, 1986. Ms. Williams was treated at a hospital and released that day, incurring expenses of $216, and was absent from work two days in November and once in December, which she valued at $405.76. She consulted her general practitioner and another physician in November because of pain associated with the accident. (The record references to the amounts charged for those services were not given to us by either party and we are unable to locate them in the record.)

Two physicians testified they treated Ms. Williams in mid-1987 for balance and gait problems. Dr. Nettles testified that he attributed these problems to her chronic cerebral palsy; and that she did not mention back or neck pain or headaches. Dr. Bodziner conducted an MRI scan because Ms. Williams said her balance and gait problems were aggravated by the accident, but he concluded from the absence of any abnormalities in the spinal cord that the problems stemmed from cerebral palsy. Additionally, he treated her for headaches, which he attributed to whiplash, but he also opined the headaches were stress related because Ms. Williams telephoned him in late 1987 to inform him that she had experienced significantly fewer headaches since making a job change. He stated the headaches she described to him were inconsistent with temporomandibular joint (TMJ) dysfunction.

Two other doctors treated Ms. Williams in 1988 and 1989 for neck and back pain and headaches. Dr. McGinnis, a pain and rehabilitation specialist, concluded from her medical history that she was suffering from muscle inflammation resulting from the collision. Dr. Brancato, an orthodontist, concluded from his examination of her in May 1989 that Ms. Williams’ headaches resulted from TMJ dysfunction, which he testified could be caused by whiplash or similar injury, disease, or arthritis, and which he concluded from her medical history stemmed from the collision. His treatment resulted in marked improvement. Ms. Williams testified that 26 days of work absences between 1987 and 1989 were attributable to injuries suffered in the collision and the additional treatment she received as a result.

“ ‘Where a verdict finding the defendant liable to the plaintiff in damages is authorized “and where, under the uncontradicted evidence the plaintiff’s special damages . . . amounted to more than the verdict without even considering any amount for pain and suffering, the verdict was so inadequate as to require a new trial. (Cits.)” [Cit.]’ [Cit.]” Smith v. Doe, 176 Ga. App. 711 (2) (337 SE2d 367) (1985). Construed to support the jury’s verdict, the evidence concerning the proximate cause of the treatments Ms. Williams received and the days she missed from work in 1987-1989 was controverted and disputed. See Young v. Southern Bell &c. Co., 168 Ga. App. 40-41 (1) (308 SE2d 49) (1983). When the disputed special damages are subtracted from the total amount of special damages claimed, the remainder does not exceed the jury’s verdict. See Smith, supra at 711-712 (2). Accordingly, we affirm the denial of the motion for new trial. See id.; see also Young, supra.

2. Appellants next enumerate as error the trial court’s refusal to allow certain testimony by Mr. Williams in response to appellee’s opening statement, which they contend was prejudicial. During her opening remarks, defense counsel explained to the jury that appellee was a merchant mariner and was not a United States citizen. She explained that she had never met him because he was always at sea and had not returned to Savannah since the incident, and that she assumed he was not at the trial because he had not received notice that it was scheduled. Appellants interposed no objection to these statements. After trial testimony began, appellants’ counsel requested in a bench conference that he be allowed to present Mr. Williams’ testimony concerning appellants’ efforts to “let [appellee] know about this lawsuit and to get him involved in it.” The trial court denied this request on the ground that the information was not relevant.

We fail to see how defense counsel’s explanation of the reasons for her client’s apparent waiver of his right to be present at trial could be prejudicial to appellants. Since appellee’s absence was not relevant to any of the substantive issues raised by appellants at trial, evidence offered to address or explain his absence was likewise irrelevant. See Lozier v. Leonard, 173 Ga. App. 697, 699 (3) (327 SE2d 815) (1985). Moreover, the record shows that the evidence appellants sought to introduce did not relate to notice of trial, but instead concerned their efforts to perfect service on appellee and to inform him of the existence of the lawsuit. Accordingly, we find no error.

3. Appellant contends the court’s instruction on remote damages was not authorized by the evidence because the cause of her injuries was undisputed. We do not agree. The court charged the jury that “if the damages suffered by the plaintiff are, in your judgment, . . . only imaginary or the possible result of a tortious act, or if other and contingent circumstances preponderate in causing the damage, such damages are too remote to be the basis of recovery against the defendant.” Although the article “the” was transposed from its proper position, see OCGA § 51-12-8, we find this charge, when considered with the entire charge to the jury, was a correct statement of the law on remote damages. Since extensive evidence was adduced on the issue whether the medical expenses Ms. Williams incurred were attributable to the accident or whether they arose from other causes, this charge was adjusted to and authorized by the evidence. See Central of Ga. R. Co. v. White, 135 Ga. 524, 525-526 (3) (69 SE 818) (1910); Hill Aircraft &c. Corp. v. Tyler, 161 Ga. App. 267, 272 (7) (291 SE2d 6) (1982).

4. Appellants’ challenge to the court’s charge on accident is similarly without merit. The charge was authorized because there was evidence from which the jury could have concluded that the collision resulted from an accident unmixed with the fault of either party. See Foist v. Atlanta Big Boy Management, 166 Ga. App. 304, 305 (2) (304 SE2d 111) (1983). Moreover, appellants cannot show harm because the jury’s verdict in their favor indicates that the jury did not consider the collision to be an accident. Id.

Decided February 5, 1991

Rehearing denied February 22, 1991

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

Brannen, Searcy & Smith, Leesa A. Bohler, for appellee.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A90A1912.
    SAUNDERS v. THE STATE.
    (402 SE2d 542)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery and appeals the trial court’s denial of his motion for a new trial raising two enumerations of error: the evidence was insufficient to support the verdict, and the State improperly argued that appellant might be granted clemency by the court.

Viewed in a light to support the verdict, the evidence adduced at trial is as follows: During the early morning hours of December 21, 1988, a man entered a convenience store carrying a pump shotgun. The cashier was ordered to put money in a brown paper bag, and the perpetrator left the store with approximately $300. On the evening before the robbery, appellant and a friend, Martin Triplett had gone to the store. Triplett testified that on the following morning, appellant admitted committing the robbery with a shotgun taken from Steven Maltby, appellant’s brother-in-law, and that there was a large amount of money on a coffee table. Maltby testified that appellant and Triplett had been staying in his trailer but that several days before the robbery, they left for Louisiana. Maltby admitted having two guns, including a shotgun, which he claimed were kept at his parents’ residence at the time of the robbery; however, he denied that the shotgun was a pump shotgun. Appellant’s sister also testified that appellant returned to Louisiana before the robbery, but she indicated that the guns were never removed from the trailer. Upon his return to Louisiana, Triplett notified the local police of the robbery, and the information was subsequently forwarded to the Cumming police where an officer obtained a picture of appellant and conducted a photo lineup. The cashier identified appellant in the photo lineup; however, in court, facing appellant during the trial, the cashier was not able to identify him as the perpetrator. The court reporter recorded the cashier’s response when asked to identify appellant as “That’s not him”; however, neither the court nor counsel heard the response, nor did a backup tape recorder record the statement. At the close of the evidence, the court conducted a hearing outside the presence of the jury wherein the court reporter certified the transcript as correct and testified that the cashier muttered under his breath that appellant was not the perpetrator. A bailiff testified that she was unsure of the cashier’s exact words, but she thought she heard him mumble “That is not the one.” The cashier was recalled and denied making the statement. The jury then returned to the courtroom, and the cashier explained that he did not recall making the statement earlier in the trial and that what he meant to convey was that he could not state positively that appellant was the perpetrator because his appearance had changed in the year since the robbery. The cashier then maintained, as in his earlier testimony, that the individual identified in the photo lineup was the perpetrator. The bailiff and the court reporter followed and repeated their earlier testimony in the jury’s presence.

1. Although there were conflicts in the testimony, there was sufficient evidence to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “ ‘We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal we are bound to construe the evidence with every inference and presumption in favor of upholding the jury’s verdict. [Cit.] Where the testimony of the State and that of the defendant is in conflict, the jury is the final arbiter. [Cit.]’ [Cit.]” Glanton v. State, 195 Ga. App. 533, 534 (394 SE2d 577) (1990).

2. In his closing argument, the prosecutor stated, “The judge, Judge Jackson is a very fair man. I’ve been assigned to his court for almost two years now, seen him evaluate hundreds of defendants. And he knows what he is doing in deciding on a sentence. And he’ll do what’s fair and appropriate in this case. That’s his job, not your’s. Your job is to simply speak the truth on this case.” Appellant contends that the argument violated OCGA § 17-8-76 and claims that it implied that the trial court would be lenient in deciding on a sentence and might possibly give a lighter sentence based on the facts in the case.

Our impression of this portion of the State’s closing argument is that it was not improper and did not imply that appellant might not be required to serve his full sentence because of the possibility of pardon, parole or clemency. Appellant has adopted an interpretation of the State’s remarks which we decline to accept. Accordingly, we find no error mandating the grant of a new trial.

Decided February 22, 1991.

Walter J. Clarke, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A1996.
    MILLER et al. v. TRANAKOS et al.
    (402 SE2d 772)
   Cooper, Judge.

This interlocutory appeal arises from the trial court’s grant of appellees’ motion to open defaults and for a continuance of the trial.

Appellants are individuals who invested large sums of money into a tax shelter promoted by their attorney, Arthur P. Tranakos (“Tranakos”). After the Internal Revenue Service determined that the tax shelters were fraudulent, appellants filed two suits, which were consolidated, against Tranakos individually, one of his corporations involved in the fraudulent tax scheme and against the Tranakos Grandchildren Trust, a trust established for the benefit of the five children of Tranakos by their grandfather. Tranakos was the trustee of the trust. In the suits, appellants alleged that the trust was involved in the fraudulent tax scheme, that the trust was the alter ego of Tranakos and that the money invested by the appellants went into the trust. The trust beneficiaries were not served with actual notice of the suits and were not served with a copy of the complaint or any other pleading. In July 1988, default judgments were entered against the defendants, including the trust, due to Tranakos’ repeated failure to respond to court orders, failure to appear for depositions and supplying misrepresentations to the court. The beneficiaries of the trust were not notified of the hearing on the defaults, nor were they notified of the entry of the default judgments. During the next year, Tranakos attempted to contest the judgments until the summer of 1989, when he was convicted and sent to prison on a separate matter.

According to the trust beneficiaries, although certain of them were somewhat aware of the pendency of these lawsuits, they were not given any details of the suits by their father and were assured by him that the suits did not involve the trust. Tranakos, as trustee, managed the trust and apparently handled all the details of the trust in a shroud of secrecy. The beneficiaries were at all times unaware of the conduct of Tranakos leading to the entry of the default judgments, and as stated before, were not notified that the judgments had been entered. By affidavit, Peter Tranakos, as a trust beneficiary, states that when he became aware of the lawsuits his father assured him everything was being done to protect the trust. Nevertheless, Peter suggested to his father that he resign as trustee, yet his father refused. Peter stated that the trust was established in his grandfather’s will to benefit himself and his four younger sisters and that to his understanding, his father was never a beneficiary of. the trust. Peter had only a general knowledge of the trust assets which included an interest in a rock quarry and some corporate stock. On December 5, 1989, Peter first became aware that a hearing on the issue of damages to be assessed against the trust was scheduled for December 12, 1989. The beneficiaries then obtained independent counsel and specially appeared at the hearing, where they requested an opening of the defaults and a continuation of the trial on damages. In February 1990, the beneficiaries’ motions to open the defaults and for a continuance were granted as was appellants’ application for immediate review of that order. The appellee herein is technically Tranakos, as trustee for the Tranakos Grandchildren Trust, however, the beneficiaries are the appellees in substance, and we will hereafter refer to “appellees,” meaning the beneficiaries.

1. Appellants contend that the defaults should not have been opened on the ground that the beneficiaries were required to be notified of the pending claim against the trust, as notice to the trustee constituted notice to them. In fact, the court’s order only stated that the court had “determined from a review of all facts that a proper case had been made for the default as to the Trust to be opened and for a continuance to be granted. . . .” “OCGA § 9-11-55 (b) ‘allows a prejudgment default to be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. (Cits.)’ [Cit.]” Powell v. Eskins, 193 Ga. App. 144, 145 (387 SE2d 389) (1989). “Opening a default is a matter resting within the sound discretion of the trial court which will not be disturbed absent an abuse of discretion. [Cit.] However, compliance with the four conditions is a condition precedent to the exercise of this discretion. [Cits.]” Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 834 (4) (360 SE2d 280) (1987). “ ‘ “The rule permitting opening of default is remedial in nature and should be liberally applied (cit.), for default judgment is a drastic sanction that should be invoked only in extreme situations. (Cits.) Whenever possible cases should be decided on their merits for default judgment is not favored in law. . . . Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. (Cit.)” (Cit.)’ [Cits.]” West v. Smith, 196 Ga. App. 69, 70 (395 SE2d 302) (1990). We have reviewed the record, including the motions filed by appellees and the brief in support thereof, and conclude that the four conditions precedent were met by appellees. There are facts asserted therein which, if believed, would establish a meritorious defense to the complaints. West, supra at 71.

Having met the first four conditions, the only question remaining was whether or not the facts made out a case for opening the default under the statute. Powell, supra at 145. “[QCGA § 9-11-55 (b)] plainly gives the trial judge the discretion to open a default when he considers a proper case has been made. . . . This is materially different from providential cause and excusable neglect, both of which have been defined in our case law. . . . This third ground for opening default is broader than the other two. Its essence is the discretion of the trial judge.” Houston v. Lowes of Savannah, 136 Ga. App. 781, 782 (1) (222 SE2d 209) (1975). See Brake v. Mintz, 193 Ga. App. 662, 665 (388 SE2d 715) (1989). The trial court had previously recognized that the defenses of Tranakos and the trust were “antithetical to each other” in an order granting appellants’ motion to disqualify Tranakos’ attorney from future dual representation. By affidavit Peter Tranakos stated that the trust was a testamentary trust established for the benefit of the testator’s grandchildren with Tranakos acting as trustee. While the beneficiaries were generally aware that a trust had been created and the assets thereof, after the death of the testator in 1977, Tranakos had managed the affairs of the trust until 1989 without providing any information concerning the affairs of the trust to the beneficiaries. The beneficiaries were unaware of their father’s conduct in connection with the instant lawsuits and were not served with any notice of the lawsuits or the defaults. The beneficiaries acted promptly upon discovering the status of the litigation. “ ‘ “[T]he discretion of the trial judge in opening a default and permitting the defendant to plead will not be interfered with by this court unless manifestly abused, to the injury of the plaintiff. [Cits.]” ’ [Cits.]” Ragan v. Smith, 188 Ga. App. 770, 773 (3) (374 SE2d 559) (1988). Considering the circumstances of this case and after our review of the record, we find no abuse of discretion by the trial court in the opening of the defaults.

2. Appellants’ assertion that prior rulings of this court and the Supreme Court affirming the default judgments granted in their favor should not be set aside is without merit. In the four years that these suits have been in litigation, this court has entertained five appeals, four of which were dismissed by unpublished order and one of which was transferred to the Supreme Court; the Supreme Court has affirmed two appeals without opinion. None of these appeals considered or ruled upon the entry of the default judgments.

3. Appellants insist that prior to the motions of the beneficiaries a consent judgment was agreed to by “all parties” to the case, including Tranakos as trustee for the trust. Appellants contend that the consent judgment was presented to the trial judge for his signature, and that the case should be remanded with instructions to enter the consent judgment against Tranakos and the trust. The beneficiaries dispute the validity of the proposed consent judgment on the ground that it was not binding on them because it was never accepted or entered by the court, or agreed to by them personally, and thus any consent by Tranakos on behalf of the trust would be ineffectual. They further argue that counsel for Tranakos never signed the agreement and that said counsel stated at the December 12, 1989 hearing that any consent thereto was conditioned on approval of the beneficiaries, who expressly did not approve the agreement. However, neither party has provided citation to the record of this document as required by Rule 15 (a) and (b) of the Court of Appeals, and our search of the record transmitted on appeal has failed to disclose its presence. Nor is there any transcript of the hearing to show if such order were submitted to the trial court. The burden is on the one who asserts error to show it affirmatively by the record, and the briefs of the parties cannot be used in lieu thereof for adding evidence to support or refute a claim. Gurly v. Hinson, 194 Ga. App. 673 (4) (391 SE2d 483) (1990).

Decided February 22, 1991.

Robert A. Moss, for appellants.

Michael D. Bolen, Sutherland, Asbill & Brennan, John H. Fleming, Laura M. Shamp, for appellees.

Arthur P. Tranakos, pro se.

Judgment affirmed.

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


text:
    A90A2085.
    BLAND v. THE STATE.
    (402 SE2d 782)
   McMurray, Presiding Judge.

Defendant Bland appeals his conviction of a violation of the Georgia Controlled Substances Act, selling cocaine. The sole enumeration of error complains of the admission into evidence, for purposes of impeachment, of a prior conviction of defendant for possession of cocaine. Held:

On direct examination defendant was relating his contacts with an undercover agent when he testified as to stating to a third party that “I don’t fool with no crack cocaine.” On cross-examination defendant repeatedly testified, in the absence of any objection, as to stating to a third party in reference to cocaine that “I don’t fool with that” and “I don’t fool with no — don’t fool with no crack.”

Decided February 22, 1991.

Reginald L. Bellury, for appellant.

Joseph H. Briley, District Attorney, Al C. Martinez, Assistant District Attorney, for appellee.

Subsequently, the State was permitted over objection to introduce evidence of defendant’s conviction for possession of cocaine for purposes of impeachment only. Under this Court’s decision in Mitchell v. State, 158 Ga. App. 628, 629 (2), 630 (281 SE2d 260), defendant’s testimony in the case sub judice that he did not “fool with” cocaine “could be construed as a denial by defendant that he had ever been involved in any offenses involving [cocaine],” so as to render admissible for purposes of impeachment (by disproving the facts testified to by defendant) evidence that he had previously been convicted of possession of cocaine.

Defendant’s reliance on Seabrooks v. State, 164 Ga. App. 747, 748 (2), 750 (297 SE2d 745) is misplaced. Seabrooks may be distinguished on the facts. In Seabrooks, this Court held that evidence of that defendant’s possession of marijuana, pills and capsules did not contradict his assertion that he did not deal in cocaine, thus “was not admissible as impeachment evidence, disproving facts testified to by [that] defendant.”

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A2124.
    BRANCH v. CHARLIE PIKE CHEVROLET-BUICK, INC.
    (402 SE2d 544)
   Carley, Judge.

After the sale of a repossessed automobile, appellee-plaintiff initiated this deficiency action against appellant-defendant. Appellant answered and cross-motions for summary judgment were subsequently filed. Appellant appeals from the grant of summary judgment in favor of appellee.

1. Relying upon Sikes & Swanson Pontiac-GMC Truck v. Cantrell, 194 Ga. App. 818 (392 SE2d 36) (1990), appellant urges that a genuine issue of material fact remains as to the date of repossession and the timeliness of compliance with the notice requirements of OCGA § 10-1-36.

As in Cantrell, there is evidence that possession of the automobile was surrendered to the dealership from which it had been purchased. However, this is the only factual similarity. Here, there is no evidence that the automobile was surrendered to the dealership for the purpose of allowing repossession by the secured party. Instead, the evidence shows that the surrender of possession was effectuated for the purpose of having the dealership sell the vehicle on appellant’s behalf. Thus, unlike Cantrell, the dealership was merely appellant’s consignee for the attempted sale of the vehicle and was not the secured party’s agent for the purpose of repossession. Moreover, unlike Cantrell, there is no evidence that the secured party was immediately apprised of the surrender of possession of the automobile to the dealership and acknowledged that fact or acquiesced in it. Instead, the evidence shows that, within ten days of exercising its right to repossession due to a default in payment, the secured party sent the notice mandated by OCGA § 10-1-36. It follows that no genuine issue of material fact remains as to the date of repossession and the timeliness of compliance with the statutory notice requirements.

Decided February 22, 1991.

Waymon S. Harrell, for appellant.

Kushinka, Calhoun & Godwin, Fred E. Godwin, Jr., for appellee.

2. “ ‘Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. . . . [Cit.]’ [Cit.]” (Emphasis supplied.) Bryant v. Gen. Motors Acceptance Corp., 184 Ga. App. 323, 324 (1) (361 SE2d 529) (1987). In the instant case, appellant did nothing in the trial court which could be construed as a challenge to the commercial reasonableness of the sale of the automobile. It follows that appellant failed to render commercial reasonableness a material fact in the instant case and that the absence of evidence as to that issue is no ground for reversing the trial court’s grant of summary judgment in appellee’s favor. Compare Friddell v. Rawlins, 160 Ga. App. 44, 45 (2) (285 SE2d 779) (1981).

Judgment affirmed.

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


text:
    A90A2151.
    SCONYERS v. WILLIAMS.
    (402 SE2d 775)
   Carley, Judge.

Appellant-plaintiff was a passenger in a vehicle which collided with another vehicle being driven by appellee-defendant. The collision occurred when appellee turned left at an intersection and was struck by the on-coming vehicle in which appellant was riding. Seeking to recover damages for injuries suffered in the collision, appellant brought this negligence action against appellee and the case was tried before a jury. The jury returned a verdict in favor of appellee and appellant appeals from the judgment entered thereon.

1. The trial court gave the following charge: “[A] vehicle which has entered a controlled intersection on a green light but was required to stop therein, and while so stopped in the intersection the traffic light changed, nevertheless has the right of way and is authorized to proceed across the intersection, and another vehicle which entered the intersection in this situation was required to yield to the vehicle already in the intersection.” This charge states a correct principle of law. Edwards v. Trammell, 187 Ga. App. 22, 23 (369 SE2d 288) (1988). However, appellant enumerates the giving of this charge as error on the ground that it was not authorized under the evidence.

Contrary to appellant’s contention, here, as in Edwards v. Trammell, supra, there was evidence that appellee lawfully entered the intersection on a green light, but was required to stop therein before completing her left turn. Compare OCGA § 40-6-205 (which prohibits a motorist from attempting to cross an intersection on a green light if he cannot do so without blocking the intersection). Appellant’s further contention that the charge was unauthorized because appellee attempted to complete her left turn while the light remained green is without merit. Although not undisputed, there was evidence that the light had turned red prior to the collision and this evidence, if believed by the jury, would authorize a finding that appellee, not appellant’s driver, had the right-of-way at the time of the collision. The charge may not have been adjusted to the evidence that was adduced by appellant but it was clearly authorized by the evidence that was adduced by appellee. Accordingly, this enumeration is without merit.

2. Appellate review of an allegedly impermissible comment by the trial court is precluded by appellant’s failure to object. Southeastern Ambulance Corp. v. Freeman, 185 Ga. App. 119, 120 (3) (363 SE2d 571) (1987); Brown v. Dept, of Transp., 194 Ga. App. 530 (1) (391 SE2d 32) (1990).

3. The trial court’s giving of appellee’s requested charge on sudden emergency is enumerated as error.

At the charge conference, appellant objected to the instruction “as having no basis in fact presented in evidence and does not apply to this case.” “While not technically perfect, this language was sufficient to enable a ‘reasonable’ trial judge to understand that the charge was objected to on the ground that it was not adjusted to the evidence, so as to ‘enabl(e) (the trial judge) to rule intelligently on (that) specific point.’ [Cit.]” Martini v. Nixon, 185 Ga. App. 328, 329 (2) (364 SE2d 49) (1987). See also Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976); Williams v. Atlanta Gas Light Co., 143 Ga. App. 400, 401 (2, 3) (238 SE2d 756) (1977). Appellant renewed her objection after the charge was given. Compare Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532) (1988). Accordingly, the issue was preserved for appellate review.

Decided February 22, 1991.

Edward M. Fitts & Associates, Edward M. Fitts, Denval A. Stewart, for appellant.

There is evidence that appellant’s vehicle was approaching the intersection at an excessive rate of speed at the time appellee was turning left. However, ‘“[t]he defense of emergency is not available unless the evidence shows that there has been “‘a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.’ ” (Cits.)’ [Cits.]” (Emphasis in original.) Wallace v. Ramey, 191 Ga. App. 293 (1) (381 SE2d 434) (1989).

Although there was evidence that, as she was turning, appellee did see appellant’s vehicle speeding toward the intersection, “[n]o evidence was presented concerning the length of time which [appellee] had to assess the situation, the choices which confronted her or the ultimate choice which she made. (In fact, it would appear that [appellee] made no choice. [There is no evidence that she swerved, braked, or accelerated.]) Thus, . . . there was no evidence whatsoever that [appellee] apprehended a danger and attempted to avoid a collision.” (Emphasis supplied.) Wallace v. Ramey, supra at 294 (1). There was no evidence of any “ ‘real choice of conduct open to [appellee] after [she] realized the situation which would make the doctrine of emergency applicable. . . . The real thrust of [her] argument was not that [she] made an emergency choice when confronted by a sudden danger, but rather that [she] was not negligent in any particular and the collision, as to [her], was . . . due to the negligence of [another].’ [Cit.]” Howard v. Jones, 187 Ga. App. 756, 758-59 (2) (371 SE2d 196) (1988). It follows that the instruction was not authorized by the evidence and that it was error for the trial court to have given it over appellant’s objection. Compare Ray v. Anderson, 189 Ga. App. 80, 81-82 (2) (374 SE2d 819) (1988).

4. Appellant’s remaining enumerations concern the trial court’s charge, but the record demonstrates that appellate review is foreclosed by the failure to have raised a timely objection below.

Judgment reversed.

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

Chambers, Mabry, McClelland & Brooks, James T. Budd, for appellee.


text:
    A90A2157, A90A2158.
    CARVER v. THE STATE (two cases).
    (403 SE2d 230)
   McMurray, Presiding Judge.

Defendant was charged, via a multi-count indictment, with aggravated assault of a peace officer and four counts of felony obstruction of an officer. Defendant was charged in a separate indictment with two counts of forgery in the first degree. An attorney was appointed to represent defendant at consecutive jury trials. The first jury found defendant guilty on two counts of the first indictment, aggravated assault of a peace officer and felony obstruction of an officer. The second jury found defendant guilty on both counts of the second indictment. Defendant Was sentenced on both indictments after the second jury trial. The trial court then advised defendant as follows:

“You have a right to appeal the verdicts in both of these cases. You have the right to be represented on the appeal by your court appointed attorney if you wish. Can you tell me at this time, or do you know if you wish to appeal? [DEFENDANT]: Yes, sir, I intend to appeal. THE COURT: Can you tell me now if you wish to have a court appointed attorney to represent you? [DEFENDANT]: No, sir. I’ll handle it myself. THE COURT: You do not want a court appointed attorney, is that what you’re telling me? [DEFENDANT]: Yes, sir, that’s what I’m saying. THE COURT: All right. Well you do understand, do you not, that you have the right to the services of a court appointed attorney? [DEFENDANT]: Yes, sir. THE COURT: The appellate process is commenced by either filing what’s called a motion for new trial or by filing what’s called a notice of appeal. The important thing for you to remember is that the appellate process must be commenced within thirty days of the date that the sentence is entered which is today. If you fail to file either a motion for new trial or a notice of appeal within thirty days of this date then you will be deemed by the law to have waived your right to appeal and you thereafter would have no right to appellate review of these convictions. So I caution you that you must do that within this time.

“I also caution you that if you wait until after thirty days to select your lawyer, to hire a lawyer to appeal, there will be nothing he can do for you. So if you change your mind and decide that you cannot, or do not wish to hire a private attorney to represent you on appeal you must let me know immediately because if you wait until the 28th or 29th day to let me know it could well be too late. I might not get the message and I might not be able to re-appoint Mr. Straughan [trial counsel] or some other lawyer to represent you within the thirty days. Do you understand all that? [DEFENDANT]: Yes, sir, I understand. THE COURT: Okay. I believe that concludes everything. You may be seated.”

Defendant later requested post-conviction assistance from his court-appointed trial counsel, but later requested that the court-appointed attorney be relieved and that he be allowed to proceed pro se. The trial court relieved the court-appointed attorney and later allowed defendant to argue, pro se, timely filed motions for new trials. (Defendant raised several grounds for new trials, including an assertion that his court-appointed attorney was ineffective at the trials.) The motions for new trials were denied. These pro se appeals followed. Held:

1. “An indigent defendant is entitled to have counsel appointed to represent him on the first level of appellate review. Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d 811); Ross v. Moffitt, 417 U. S. 600 (94 SC 2437, 41 LE2d 341).” Chapman v. State, 183 Ga. App. 376, 377 (359 SE2d 14). However, when an indigent criminal defendant elects to waive the right to counsel and represent himself during post-conviction proceedings, “ ‘the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.’ (Emphasis supplied.) Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981).” Burnett v. State, 182 Ga. App. 539 (1), 540 (356 SE2d 231). More specifically, the record should reflect a defendant’s appreciation of the charges for which he has been convicted and possible avenues of post-judgment relief. See Moss v. State, 196 Ga. App. 81 (1), 82 (395 SE2d 363). A defendant should also be aware that post-judgment practice involves strict compliance with rules of practice and procedure; that failure to comply with these rules may result in waiver of important issues and that pro se parties are generally bound by the same rules of practice and procedure as a lawyer.

In the cases sub judice, defendant was informed of his right to appointed counsel on appeal and that an appeal or motion for new trial must be filed within 30 days after conviction. However, the records do not reveal a finding that defendant was made aware of the risks inherent in representing himself or of the value of counsel after conviction, or that defendant had knowingly and intelligently waived his right to appointed appellate counsel if defendant were found to be indigent. Consequently, the cases sub judice must be “remanded to the trial court for instructions to [defendant] consistent with [the] holding in Clarke v. Zant [, 247 Ga. 194, supra].” Cochran v. State, 253 Ga. 10, 11 (315 SE2d 653).

Decided February 22, 1991.

Jerry Carver, pro se.

James L. Wiggins, District Attorney, H. Frederick Mullís, Jr., Assistant District Attorney, for appellee.

2. The records in the cases sub judice show that defendant raised the issue of ineffective assistance of trial counsel during the hearing on his motions for new trials. The records also show that the trial court offered defendant post-conviction representation by his court-appointed trial attorney. These circumstances reveal a possible conflict of interest which could be prejudicial to defendant and also unfair to trial counsel.

“[T]rial counsel should not be placed in a position where he is required to pursue an advocatory role in support of an issue which would, if adjudged meritorious, reflect unfavorably upon [counsel’s] integrity . . . ; nor should an individual defendant be deprived of his right to a full and complete assistance of counsel unencumbered by divided loyalties.” People v. Bain, 320 NE2d 426, 427 (1974). Accordingly, under the particular facts and circumstances of the cases sub judice and in light of the issue of ineffective assistance of counsel having been raised, the trial court is directed to advise defendant that a court-appointed attorney, other than his court-appointed trial counsel, if defendant is found to be indigent, will be available in the event defendant elects post-conviction representation by a court-appointed attorney.

Additionally, these cases are also remanded to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel.

Cases remanded with direction.

Sognier, C. J., and Carley, J., concur.