text:
    A90A0727.
    SLOAN et al. v. SOUTHERN FLORIDABANC FEDERAL SAVINGS & LOAN ASSOCIATION.
    (398 SE2d 720)
   Cooper, Judge.

Two of the appellants, Rome IV, Ltd., and Rome VI, Ltd., both Texas limited partnerships, were the makers of two promissory notes payable to appellee. The notes, made in 1985, were in the amounts of $185,725 and $190,890 and were personally guaranteed by Larry Sloan, B. M. Eldridge and E. C. Systems, Inc. As part of the loan transactions as required by appellee, the borrowers purchased a separate investor financial surety bond applicable to each loan as additional security for appellee. The notes went into default and, after demand and acceleration, appellee initiated suit on the notes and the guaranties of Sloan and Eldridge for principal, interest and attorney fees. E. C. Systems, Inc., was not named as a defendant in the action. Appellants asserted a counterclaim in the amount of $25,000 plus interest although no grounds for such counterclaim were asserted. Appellants’ motion to dismiss the lawsuit for failure to join an indispensable party under OCGA § 9-11-19 and the motion of E. C. Systems, Inc., to intervene as a defendant pursuant to OCGA § 9-11-24 were both denied by the trial court. Subsequently, the trial court granted appellee’s motion for summary judgment on the main claim and on the appellants’ counterclaim.

1. Appellants first contend that the trial court erred in denying the motion to dismiss for failure to join the additional guarantor. It is clear under Georgia law that OCGA § 9-11-19 has no application where liability is joint and several and the plaintiff has a right of election as to which defendants plaintiff will proceed against. Adcock v. First Nat. Bank of Atlanta, 144 Ga. App. 394 (1) (241 SE2d 289) (1977). See also Smith v. Foster, 230 Ga. 207 (1) (196 SE2d 431) (1973). The guaranties at issue both contain clear language creating the several liability of each of the guarantors and granting appellee the right to collect against each guarantor independent of any other guaranty or security for the loan. The trial court did not err in denying appellants’ motion to dismiss.

2. Appellants next contend that the trial court erred in denying E. C. Systems, Inc.’s motion to intervene. E. C. Systems, Inc., claimed a right to intervene pursuant to OCGA § 9-11-24 (a) or, in the alternative, requested permissive intervention under OCGA § 9-11-24 (b). If a movant’s interests are adequately represented by the existing parties, the movant has no right to intervene. OCGA § 9-11-24 (a) (2). “The issue of adequacy of representation is a question of fact which must be ruled on by the trial court in considering the application for intervention. ...” Southwest Ga. Production &c. Assn. v. Wainwright, 241 Ga. 355 (2) (245 SE2d 306) (1978). “The trial court may conclude that the representation of the intervenor is likely to be [adequate] based solely on the status and claims of the parties as revealed by the pleadings and representations of counsel.” Id. The trial court found, and indeed the movant’s pleadings state, that the movant claimed essentially the same defenses as the named defendants; additionally, the movant was represented by the same counsel as the named defendants. The movant asserted an interest in the appellants’ counterclaim, yet shed no light on the grounds supporting the claim. No adverse interest of the movant with regard to the counterclaim appears, and the movant would be adequately represented on the counterclaim without intervention. As stated by the trial court, the major thrust of the intervention motion is the movant’s attempt to have a separate, unrelated claim against appellee heard in this action. This claim, based upon unrelated facts, was being pursued independently in another court. “[I]f the one who seeks to intervene will still be left with his right to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention and should not be allowed to intervene over objection.” Gregory v. Tench, 138 Ga. App. 219 (1) (225 SE2d 753) (1976). The outcome in the instant case would not affect the movant’s right to pursue its independent claim against appellee in the other court. Therefore, we find no error with the trial court’s ruling that the movant failed to demonstrate that its interests are not adequately represented by the existing defendants.

Whether permissive intervention is granted is addressed to the sound discretion of the trial judge, and a decision on this issue will not be reversed unless there is an abuse of discretion. Allgood v. Ga. Marble Co., 239 Ga. 858, 859 (239 SE2d 31) (1977). Although not the sole factor to be considered, “[t]he most important factor is whether intervention will prejudice existing parties in the case.” Sta-Power Indus. v. Avant, 134 Ga. App. 952 (3) (216 SE2d 897) (1975). The court did not abuse its discretion in determining that the introduction of the movant’s independent claim against appellee would complicate the trial and prejudice appellee. Further, the court was correct in holding that Gregory v. Tench, supra, prohibits intervention when the movant can pursue its independent claim in another court. Appellants’ second enumeration is without merit.

3. With regard to appellants’ last enumeration, that the trial court erred in granting summary judgment to appellee, “[t]he burden is on the party who moves for summary judgment to produce evidence which conclusively negate [s] the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence.” Dairyland Ins. Co. v. Gay, 193 Ga. App. 65, 67 (386 SE2d 909) (1989). Appellants’ primary theory of recovery and the basis asserted for denial of summary judgment to appellee is that appellee had an obligation to proceed against the investor financial surety bonds prior to seeking recovery under the guaranties. Contrary to appellants’ assertions, the bonds by their stated terms were primary security for payment of the individual investor notes in the partnership, not for any partnership or guarantor obligations. Appellee was required to proceed against the surety bonds prior to instituting suit against any individual investor in the partnership, however, the existence of the bonds did not affect or restrict in any way appellee’s remedies against the partnership itself or the guarantors under the loan documents.

Decided October 10, 1990

Rehearing denied November 16, 1990

Walter W. Furlong, for appellants.

Ellenberg & Bryan, Richard D. Ellenberg, Doffermyre, Shields, Canfield & Knowles, Leslie J. Bryan, for appellee.

Appellants’ allegations of fraud and misrepresentation are premised upon a breach of appellee’s asserted duty to proceed against the bonds, which were a part of the consideration for the extension of the loans. One appellant stated in an affidavit that it was represented to him that the guarantors’ obligations would arise after claims were made under the bonds. However, no parties stated that they were told that the bonds were security for the guarantors’ direct obligations. The trial court correctly found that the bonds were meant to protect against the default of the individual investors, and appellee was only obligated to proceed under the bonds prior to instituting suit against any individual investor. The instant suit involved the separate and independent claims of appellee against the partnership and the guarantors on the partnership debt. Hence, we find that appellee was not obligated to pursue the bonds, and appellants’ assertion that appellee committed fraud and misrepresentation by not pursuing these obligations is unsupported and without merit.

Appellants’ bald assertion in their brief that the guaranties were not supported by consideration, was not supported by any evidence and is without merit. The trial court did not err in granting summary judgment to appellee. Appellants do not appeal the grant of summary judgment on their counterclaim.

Judgment affirmed.

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


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A90A1256.
    VULCAN MATERIALS COMPANY v. UPSHAW.
    (399 SE2d 584)
   Carley, Chief Judge.

Upon consideration of the entire record and the applicable statutory provisions, this discretionary appeal is hereby dismissed as having been improvidently granted. See generally Morgan v. G. M. &c. Corp., 167 Ga. App. 404 (307 SE2d 137) (1983).

Appeal dismissed.

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

Decided November 6, 1990

Rehearing denied November 16, 1990

Woodson & Hanafee, H. Clifton Woodson, for appellant.

Taylor & Harp, J. Anderson Harp, Jefferson C. Callier, for appellee.


author: McMurray, Presiding Judge.

text:
    A90A0884.
    LAWLER et al. v. STRIVE et al.
    (398 SE2d 854)
   McMurray, Presiding Judge.

This dispute arose after James Strive and Mary Strive (plaintiffs) sold a house to Joel Lawler and Janet Lawler (defendants). Plaintiffs sued defendants and sought specific performance, alleging that defendants wrongfully prevented them from retrieving an “above-ground swimming pool” located on the property. Defendants answered and denied that the swimming pool belonged to plaintiffs and stated that the “swimming pool was on the property . . . and [that] the same is anchored into the real estate and attached to the real estate.” Defendants then counterclaimed in five counterclaims. In Counterclaim 2, defendants alleged “a willful trespass” in that plaintiffs detached fixtures from the real property before closing and that “[subsequent to the closing, plaintiff, JAMES STRIVE, came up on the property of defendants and removed the [fixtures] from the storage house.” In a fourth counterclaim, defendants alleged that plaintiffs “concealed structural defects [which] constituted a willful trespass and wrong, entitling defendants to additional damages to deter a repetition of the wrong.”

The trial court granted summary judgment to plaintiffs on defendants’ Counterclaims 1, 2 and 5. With regard to Counterclaim 4, the trial court denied summary judgment to plaintiffs but held “that a material question of fact remains for the jury as to whether the alleged defects were such that, under the circumstances of Plaintiffs’ alleged concealment, the defects could have been discovered by the kind of inspection possible under the terms of the contract.” This appeal followed. Held:

1. Defendants contend in their first enumeration that the trial court erred in granting summary judgment to plaintiffs on their Counterclaim 2.

“One who commits a trespass upon the land of another is subject to be sued as a trespasser. . . .” Gill v. First Christian Church, 216 Ga. 454 (2) (117 SE2d 164). “ If a person commits a trespass with knowledge that he is acting without right, exemplary or punitive damages may be awarded.’ [Cit.]” Collins v. Baker, 51 Ga. App. 669, 674 (181 SE 425). There is no evidence in the case sub judice which refutes defendants’ Counterclaim 2 for intentional trespass to realty. Consequently, the trial court erred in granting summary judgment to plaintiffs on Counterclaim 2.

Decided November 16, 1990.

Scott Walters, Jr., for appellants.

Emily Sherwinter, for appellees.

2. Next, defendants contend the trial court erred in restricting the issues raised in Counterclaim 4 by holding “that a material question of fact remains for the jury as to ‘whether the alleged defects were such that, under the circumstances of Plaintiffs’ alleged concealment, the defects could have been discovered by the kind of inspection possible under the terms of the contract.’ ” (Emphasis supplied.) In support of this contention, defendants cite Crawford v. Williams, 258 Ga. 806 (375 SÉ2d 223), and Ideal Pool Corp. v. Baker, 189 Ga. App. 739 (377 SE2d 511), arguing that the elements of fraudulent misrepresentation are present in the case sub judice.

Neither Crawford v. Williams, supra, nor Ideal Pool Corp. v. Baker, supra, supports defendants’ contention that the trial court erred in restricting the issues raised in Counterclaim 4 by holding “that a material question of fact remains for the jury as to ‘whether the alleged defects were such that, under the circumstances of Plaintiffs’ alleged concealment, the defects could have been discovered by the kind of inspection possible under the terms of the contract.’ ” Further, the trial court’s order denying plaintiffs’ motion for summary judgment indicates a finding that genuine issues of material fact remain on the issue of “fraudulent misrepresentation.” Consequently, it is unnecessary to consider defendants’ argument that genuine issues of material fact remain as to the basic elements of fraudulent misrepresentation. This enumeration is without merit.

Judgment reversed.

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


text:
    A90A0923.
    CALLAWAY v. THE STATE.
    (398 SE2d 856)
   McMurray, Presiding Judge.

Defendant Callaway appeals his conviction of two counts of child molestation. The sole enumeration of error contends that proceeding to trial with defendant unassisted by counsel without establishing that defendant had made a voluntary and knowing waiver of his right to counsel was error. Held:

On August 29, 1989, the trial court determined defendant to be indigent and counsel was appointed to represent him, but this order was rescinded by a further order entered September 5, 1989, which recited that “defendant is not eligible for the appointment of counsel . . . .” At trial on September 19, 1989, the following colloquy occurred: “THE COURT: Is the State ready? MR. ARCHER: State’s ready, Your Honor. THE COURT: Mr. Callaway, are you ready? MR. CALLAWAY: I’ve got a lawyer coming but he’s in Hinesville today. THE COURT: I see. Well, it’s too late for that. You should have had one a long time ago. I remember back in August I warned you of the dangers of proceeding without an attorney and I told you that you needed to get an attorney. MR. CALLAWAY: I know. But Raymond wouldn’t tell me nothing. THE COURT: Sir? MR. CALLAWAY: Raymond wouldn’t tell me nothing when I went over there to see him that Wednesday. THE COURT: Well, we’re gonna have to go on with the trial because we’ve already got the jury selected and all, and you’ve had plenty of time to get a lawyer.”

The trial was completed with the defendant at all times representing himself.

‘A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. Gideon v. Wainwright, 372 U. S. 335. This right attaches at the pleading stage of the criminal process, Rice v. Olson, 324 U. S. 786, and may be waived only by voluntary and knowing action. Johnson v. Zerbst, 304 U. S. 458; Carnley v. Cochran, 369 U. S. 506. Waiver will not be “lightly presumed,” and a trial judge must “indulge every reasonable presumption against waiver.” Johnson, supra, at 464.’ Boyd v. Dutton, 405 U. S. 1 (92 SC 759, 30 LE2d 755).” Robertson v. State, 162 Ga. App. 873, 874 (293 SE2d 477).

In the case sub judice, the trial court apparently determined in its order entered September 5, 1989, that defendant was not indigent so as to be entitled to appointed counsel. “For a non-indigent defendant, such as appellant, the constitutional right to counsel only ‘ “entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.” ’ (Emphasis in original.) Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983). . . .

“Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. [Cits.] Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, ‘the trial judge (has) a duty to delay the proceedings long enough to ascertain whether (the defendant has) acted with reasonable diligence in obtaining (an attorney’s) services and whether (the) absence (of an attorney is) attributable to reasons beyond (the defendant’s) control.’ Shaw v. State, supra at 112.” Burnett v. State, 182 Ga. App. 539 (1), 540 (356 SE2d 231).

Decided November 16, 1990.

Jon Gary Branan, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

In the case sub judice, the record fails to disclose that the trial court made such an inquiry and the record lacks any evidence as to whether defendant exercised “reasonable diligence” in procuring counsel. Under these circumstances, the trial court abused its discretion when it forced defendant to proceed to trial without the assistance of counsel. Shaw v. State, 251 Ga. 109, supra. Compare Burnett v. State, 182 Ga. App. 539, 541, supra.

Judgment reversed.

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


text:
    A90A1272.
    BRIDGES v. BRIDGES.
    (398 SE2d 860)
   McMurray, Presiding Judge.

Appellant and appellee were formerly wife and husband. Upon their divorce appellant received custody of three minor children, issue of the marriage. On September 6, 1989, appellee filed this action seeking an order changing custody of the parties’ two minor children (the third child has reached the age of majority).

Following a hearing the superior court entered its findings as follows: “1. Since the Final Judgment and Decree of Divorce which awarded custody of the minor children of the parties to the [appellant], there have been material changes in the conditions and circumstances substantially affecting the interest and welfare of the minor children. 2. There has been substantial harm done to the six year old girl and the thirteen year old boy. 3. By her own admission Defendant has consistently violated Official Code of Georgia 16-6-18 and 16-6-19 in the presence of the said minor children.” Based on these findings the superior court ordered custody of the two minor children changed to appellee. Appellant’s application for discretionary appeal was granted, and she subsequently filed this appeal. Held:

OCGA §§ 16-6-18 and 16-6-19 prohibit the offenses of fornication and adultery. Sexual intercourse is an element of each of these crimes. Therefore, the superior court’s third finding of fact states that appellant had sexual intercourse in the presence of her two minor children. Appellant correctly argues that there is no evidence authorizing this finding. “ ‘ “If the court’s judgment is based upon a stated fact for which there is no evidence, it should be reversed.” (Cit.)’ Lamas v. Baldwin, 140 Ga. App. 37, 39 (1) (230 SE2d 13) (1976). ‘We remand the case to the trial court with direction that it correct the finding(s) to conform to the evidence and then make a judgment with the corrected finding(s) taken into consideration. (Cit.)’ Chatham v. World Arts &c. Center, 147 Ga. App. 421, 422-423 (249 SE2d 139) (1978).” Palm Restaurant of Ga. v. Prakas, 186 Ga. App. 223, 227 (8) (366 SE2d 826).

Decided November 16, 1990.

Hartley, Rowe & Fowler, Jeffrey P. Richards, for appellant.

Edwards & Krontz, Robert B. Edwards, Kenneth W. Krontz, for appellee.

Judgment reversed and case remanded with direction.

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


author: Beasley, Judge.

text:
    A90A1571.
    SMITH v. THE STATE.
    (398 SE2d 858)
   Beasley, Judge.

Donna Smith appeals her conviction for possession of approximately 6.7 grams of cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (a). She claims the evidence was insufficient to support the conviction because there was no evidence that she had knowledge that the package she received contained contraband. She further contends that even if the circumstantial evidence was legally sufficient to sustain a finding of guilt it likewise supported a theory consistent with her innocence, i.e., that she was innocently merely accepting what she thought was a Christmas gift from a friend in her old home town.

The evidence construed in favor of the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following. United Parcel Service (UPS) received a package to be shipped “next day air,” making it a priority one package, and addressed to “Donna Smith, Route 1, House 111, Jenkins, Georgia 31761.” The shipper identified on the package was “Johnny Gordon, 1910 Dock Street, West Palm Beach, Florida.” On or about November 22, 1988, UPS delivered the package to “Route 1, Box 111, Jakin, Georgia” which was an old parsonage; no one was there so the driver left the package. On or about November 30, the minister’s wife returned the package to a UPS driver, telling him that the package had been mistakenly delivered and that it had not been opened. That evening, the driver gave it to the local UPS manager. As far as the manager could determine, the sealed package had never been opened.

•Pursuant to UPS procedure for such a priority package, the manager attempted to track down the proper consignee or the shipper. He contacted the UPS terminal in West Palm Beach to verify the shipper’s address and was advised that it was not legitimate. It was also discovered that the zip code on the consignee’s address was that of Jakin rather than Jenkins but no listing for Donna Smith was found.

Still following standard procedure, the manager then opened the package to look for a shipping or packing list which might disclose someone’s name, address, or telephone number but none was found. The manager saw three stuffed toys and an old wadded up beach towel that looked like it had been used as packing. The manager could not imagine why anyone would ship such contents next day air. While replacing the toys in the package, he picked up the towel and out fell a plastic bag containing white powder which he suspected was cocaine. Accordingly, the manager notified the UPS loss prevention department. The loss prevention employee contacted the GBI.

A GBI agent together with a local police investigator went to the UPS office, field tested the powder, which showed cocaine, and took custody of it. The same day, UPS sent a postcard to Donna Smith at the address shown on the package but received no response. Subsequently, the GBI agent received a call from a local sheriff that they had located a Donna K. Smith living in Jakin and working at an oil company in Blakely. UPS was contacted and UPS delivered a notice to Smith at the oil company, asking that she contact the UPS manager about the package. Shortly thereafter, on or about December 21, Smith called the manager. The manager felt it was not unusual that prior to this neither Smith nor anyone had called about the whereabouts of the package because it was his experience that if a package contained something that someone did not want to be associated with, he or she was definitely not going to trace it or look for it.

During the telephone call, the manager told Smith who and where the package was from and that they had had problems locating her. He asked her if she was the Smith on the address and the one that the package was for and she responded affirmatively; two or three times the manager asked more questions about the package in an attempt to confirm that she was the person that the package was intended for and Smith confirmed that she was. Smith had lived in West Palm Beach for years and knew a “Johnny.” Smith asked that UPS “be sure and . . . get [the package]” to her and deliver it early in the day before she went to work. The manager took directions for the delivery.

The GBI arranged for a controlled delivery the following day. Posing as a driver, the UPS loss prevention employee drove the delivery truck to Smith’s residence, parking near the front of the carport. Two GBI officers were concealed in the back of the truck. Smith came to the door and confirmed who she was and that it was her package, and she signed for it. The UPS employee went to the back of the truck to inform the officers that Smith had accepted the package. When Smith saw the officers exiting the truck and coming towards her, she threw the package.

Decided November 16, 1990.

John W. Knight, Burt & Burt, Terry J. Marlowe, for appellant.

“Knowledge and possession can be proven by circumstantial evidence. . . . [Cit.]” Garcia v. State, 195 Ga. App. 635, 637 (2) (394 SE2d 542) (1990). “ ‘ “(T)o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. However, the term “hypothesis” refers to “such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else. . . . (Cit.)’ [Cit.] Thus, only reasonable inferences and hypotheses except the guilt of the accused need be excluded. [Cit.] ‘Questions of reasonableness are generally decided by the jury, and this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.” [Cit.]’ ” Hicks v. State, 195 Ga. App. 887, 888 (1) (395 SE2d 341) (1990).

Here, adding up Smith’s consistent affirmations that the package was hers after being contacted by UPS in light of her and the sender’s prior failure to make any attempt to locate the package, her request that the package be quickly brought to her at her residence, and her behavior upon delivery of the package and observance of the GBI officers would have permitted the jury to conclude that Smith’s defense was not a reasonable hypothesis but rather that Smith knew the sender, knew there was contraband in the package, and knew it was intended for her. The evidence, including reasonable inferences, was sufficient to enable the jury as rational trier of fact to find Smith guilty of possession of the cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Jackson v. State, 193 Ga. App. 636 (1) (388 SE2d 881) (1989); see also Anderson v. State, 193 Ga. App. 6 (387 SE2d 148) (1989); Ehrlich v. State, 189 Ga. App. 294, 295 (375 SE2d 272) (1988).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Charles M. Ferguson, District Attorney, David H. Moseley, Assistant District Attorney, for appellee.


text:
    A90A1635.
    RIGGINS v. STATE OF GEORGIA.
    (399 SE2d 96)
    Decided November 16, 1990.

      Clayton Jones, Jr., for appellant.

      Britt R. Priddy, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

The State sought to condemn Jim Riggins, Jr.’s, a/k/a Johnnie Gillard, 1987 Mercedes Benz automobile. The vehicle was allegedly used “to hold, conceal, or facilitate [the] transportation of cocaine, a controlled substance, for the purpose of sale [or] receipt of same in violation of the Georgia Controlled Substances Act.” The case was tried before the court without a jury and judgment was entered for the State on February 23, 1990. On April 2, 1990, Riggins moved for a new trial 38 days after the entry of judgment. The trial court dismissed Riggins’ motion for new trial as untimely. This appeal followed. Held:

In his sole enumeration, Riggins contends the trial court erred “[i]n dismissing [his] motion for new trial as being untimely filed.”

“In any case where a motion for a new trial is made more than 30 days after the entry of judgment on the verdict, some good reason must be shown why the motion was not made within the time allowed by law. Code Ann. §§ 70-301 and 70-303 [now OCGA §§ 5-5-40 and 5-5-41].” Brawner v. Wilkins, 114 Ga. App. 263 (2) (150 SE2d 721). In the case sub judice, Riggins’ appellate counsel explains that the motion for new trial was filed more than 30 days after judgment because of an incorrect hearing date recorded in the trial transcript.

An examination of the trial transcript shows the court reporter incorrectly stated that the trial was conducted on March 2, 1990. However, this is no excuse for the untimely motion for new trial. The time for filing a motion for new trial is calculated from the date of the entry of judgment, not from the time of trial. OCGA § 5-5-40 (a). The judgment clearly showed its date of entry. Consequently, the trial court did not err in dismissing Riggins’ motion for new trial as untimely.

Judgment affirmed.

Car ley, C. J., and Sognier, J., concur.


author: Cooper, Judge.

text:
    A90A0980.
    DEPARTMENT OF TRANSPORTATION v. B & G REALTY, INC. et al.
    (398 SE2d 762)
   Cooper, Judge.

This is an appeal by the Department of Transportation (“DOT”) from the order of the trial court granting appellees’ motion to set aside, vacate and annul a declaration of taking. In October 1988, the DOT filed a condemnation action pursuant to OCGA § 32-3-1 et seq. to acquire access rights in connection with the improvement of the Columbus-Manchester Expressway in Columbus, Georgia. The ownership of these access rights has been in controversy since at least 1979, in which year the DOT, apparently confident that it had purchased the rights from the owner and confident that it had purchased a title insurance policy insuring the DOT’s ownership, announced at a public hearing that it owned all the necessary access rights for the improvement of the highway. The true owner of the rights, present at the hearing, announced publicly that in fact the DOT had not purchased the rights to his property. Ensuing investigation and litigation with the title insurance company revealed that these particular access rights had not been purchased, and the saga between the DOT and appellees began. After considering all the evidence, including witness testimony, documentary evidence, pleadings, briefs and arguments of counsel, the trial court found as follows: the DOT knew at least by April 1979 that it did not own the access rights; in May 1984, the DOT offered the true owners $20,000 (which was $3,000 more than the alleged estimated value in the present condemnation) for the property, then revoked the offer and attempted no further negotiations until September 1988 when the DOT unlawfully cut off access to the property; in April 1985, the DOT sent to appellees a deed conveying the property to the DOT amidst a package of information on unrelated drainage rights, and appellees mistakenly executed the deed; even though the DOT knew the deed had been mistakenly executed and lacked consideration, the DOT used the deed to coerce appellees into a settlement and threatened litigation if the settlement amounts offered by the DOT were not accepted; despite requests to return the deed, it was not returned to appellees for two and one-half years; on September 20, 1988, the DOT without any notice or warning, unlawfully cut off appellee’s access to the property, and only restored the property after written demand to counsel for DOT; the road was restored in a manner that rendered it impassable at times, and the road was not in the same condition as before the taking; in October 1988, the DOT filed a condemnation action, and with no notice to appellee’s legal counsel, who were known by the DOT to be involved in the matter, took an order granting possession after 60 days from the order; two days after the order the DOT unlawfully and without notice took. possession of the property despite the clear wording of the condemnation order; the DOT refused to restore and return the property necessitating the filing of a motion to restore the property and after a hearing on the motion, the court ordered the DOT to restore and return the property to appellees; the DOT again restored in the same poor fashion as after the first unlawful taking; the DOT then petitioned the court for an accelerated taking of the property, stating that it desperately needed the property; the court granted the accelerated taking, yet the DOT never in fact took possession of the property. The trial court then held that all of the above-stated actions by the DOT showed a pattern of bad faith and abuse and misuse of powers under OCGA § 32-3-11, granted the annulment of the taking and awarded appellees attorney fees and costs in the amount of $8,964.93.

Although appellant enumerates six separate errors, appellant states, and we agree that the first four enumerations all restate the first main issue in the case — whether the evidence presented supported the trial court’s decision to set aside, vacate and annul the declaration of taking. The second issue in the case — whether the trial court was authorized to admit evidence on attorney fees and to make an award of attorney fees and costs — is presented in the last two enumerations of error.

1. The standard for determining whether a condemning authority has abused its discretion or exceeded its authority has usually been stated in terms of bad faith or fraud. Brannen v. Bulloch County, 193 Ga. App. 151, 153-154 (387 SE2d 395) (1989); Department of Transp. v. Hudson, 179 Ga. App. 842, 843 (348 SE2d 106) (1986). “However, there is no absolute requirement of showing bad faith before an abuse or misuse of discretion may be found. . . .” Hudson, supra at 843. OCGA § 32-3-11 gives a trial court authority to set aside, vacate and annul a declaration of taking in the following situations — fraud or bad faith, the improper use of the condemnation powers, the abuse or misuse of the condemnation powers, and “such other questions as may properly be raised.” In recognition of the grounds for annulment other than bad faith, appellate courts have affirmed orders to set aside condemnations in situations where fraud or bad faith was not in issue. See Hudson, supra at 843 (abuse or misuse of discretion): Cox Communications v. Dept. of Transp., 256 Ga. 455, 456 (349 SE2d 450) (1986) (improper use of condemnation powers).

We have reviewed the entire record and transcript, including the witness testimony, letters and other documentary evidence, pleadings and briefs, and while we do not think that the evidence supports a claim of fraud, there is ample evidence to support the court’s findings that the DOT abused or misused its powers and we also determine that the evidence supports a finding that such powers were improperly used. OCGA § 32-3-11 (b) (2) and (3). The pre-condemnation actions of the DOT from 1979 onward, the filing of the action and the post-condemnation behavior of the DOT all constituted one continuous use of its powers as a condemning authority and are therefore subject to the standards set forth in OCGA § 32-3-11. “In reviewing a non-jury judgment, an appellate court will not reverse the lower court’s finding of fact if there is ‘any evidence’ to support it. [Cit.]” Estes Equip. Co. v. Corporate Steel, 192 Ga. App. 818 (3) (386 SE2d 553) (1989). The evidence supports the court’s findings and the vacation of the declaration of taking.

2. We disagree with appellant’s contention that an attorney fees award was not authorized. Although the statutory language of OCGA § 32-3-11 is silent as to the allowance of attorney fees, in Department of Transp. v. Franco’s Pizza &c., 164 Ga. App. 497 (297 SE2d 72) (1982), we recognized that if attorney fees are not sought as part of the compensation in a condemnation action, such an award would be authorized in a properly brought claim under OCGA § 32-3-11. Further, we have also recognized that in such an action separate from the condemnation, the attorney fee award is based upon OCGA § 13-6-11. “ ‘[While] a condemnee, as a defendant in a condemnation case, could not take advantage of the provisions of OCGA § 13-6-11 allowing the recovery of attorney fees . . . , ‘where the condemnee can leap the versus barrier (i.e., be a plaintiff) he may in a proper case ... , recover his expenses of litigation.’ ” DeKalb County v. Daniels, 174 Ga. App. 319, 321 (6) (329 SE2d 620) (1985). Appellees herein are plaintiffs in an action seeking to vacate the condemnation and they requested attorney fees for litigation spawned from the misuse and improper use of the powers of the DOT. This is such a “proper case” for the recovery of attorney fees. The trial court did not err in receiving evidence on the amount of fees involved or in making the award to appellees. Appellant’s argument that OCGA §§ 22-4-7 and 32-8-1 restrict appellees to the use of administrative procedures to recover attorney fees is unfounded. These Code sections provide a remedy to recover fees separate and apart from a condemnation proceeding where just and adequate compensation is at issue. City of Atlanta v. Rosebush, 146 Ga. App. 99 (1) (245 SE2d 440) (1978). Further, these sections relate only to federal aid condemnation projects, while appellant’s petition characterizes the instant project as a state aid project. Appellees are not seeking to recover fees as part of compensation but are proceeding under the entirely independent remedy provided in OCGA § 32-3-11. There is adequate authority to allow a fee award as part of the proceeding pursuant to OCGA § 13-6-11. There is nothing in the statutory language or case law pertaining to §§ 22-4-7 and 32-8-1 to prevent such an award.

Judgment affirmed.

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

Decided October 26, 1990

Rehearing denied November 19, 1990

Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, Thurman E. Duncan, for appellant.

Page, Scrantom, Harris & Chapman, William G. Scrantom, Jr., Shannon F. Land, for appellees.


text:
    A90A1098.
    CLAYTON v. THE STATE.
    (398 SE2d 723)
   Cooper, Judge.

Appellant was convicted by a jury of possession of cocaine. Appellant’s sole enumeration of error is that the trial court erred in refusing to charge the jury on the defense of entrapment.

In his testimony at trial, appellant denied that he committed the crime claiming that he did not know he was carrying a package containing cocaine. “ ‘[I]f a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.’ [Cits.]” Harold v. State, 185 Ga. App. 481 (1) (364 SE2d 615) (1988). See Gregoroff v. State, 248 Ga. 667, 672 (285 SE2d 537) (1982). A review of the State’s evidence reveals that the police arrested another individual on possession of cocaine who agreed to cooperate with the police in identifying his drug supplier. This informant called appellant’s beeper several times, using a special code appellant had assigned to him. Appellant returned the call to the informant’s home, where the informant had been escorted by two police officers. The informant and the police officer present during the phone call testified that the call lasted less than one minute; that the informant requested appellant to bring him cocaine, using terminology known to drug dealers; that appellant came to informant’s home in the early morning hours approximately one-half hour after the phone call; and that appellant had a slab of crack cocaine wrapped in a clear wrapper in his pocket. Appellant testified that the informant, who he knew from appellant’s work as a bondsman, requested that he pick up money from a third party; that the telephone conversation was more involved than presented by the State; that appellant was given a package by the third party to deliver to the informant which was wrapped in an opaque wrapping; and that appellant did not know the package contained cocaine. Although the informant was cooperating with the police and the police were present during the phone calls to appellant, the State’s case did not inject evidence of entrapment. “[Ajrtifice and stratagem may be employed to catch those engaged in criminal enterprises and it is not entrapment merely to furnish an opportunity to commit an offense if the individual is predisposed to undertake such commission. [Cit.]” Busener v. State, 188 Ga. App. 392, 394 (373 SE2d 81) (1988). There is no evidence that appellant was induced to commit the crime charged “ ‘ “by undue persuasion, incitement, or deceitful means.” ’ ” Harold, supra at 482. As stated by the United States Supreme Court in Mathews v. United States, 485 U. S. 58, 66 (108 SC 833, 99 LE2d 54) (1988), “[evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant ... an instruction [on the defense of entrapment].” In light of the evidence adduced at trial, appellant was not entitled to a charge on the defense of entrapment and the court did not err in disallowing appellant’s counsel to argue entrapment to the jury during closing argument. Appellant’s enumeration is without merit.

Decided October 10, 1990

Rehearing denied November 19, 1990.

Frank K. Martin, for appellant.

Douglas C. Pullen, District Attorney, Martha D. Blackmon, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A1235.
    REEVES v. J. M. GIVAN COMPANY, INC.
    (398 SE2d 765)
   Cooper, Judge.

Appellant appeals the trial court’s grant of summary judgment to appellee in this slip and fall case.

Appellant and several of her friends, on their own, entered a newly built home which had a “for sale” sign in the yard. Appellant stated that as she walked from the kitchen to the dining room she fell and injured herself. In her deposition, appellant stated that although some molding needed to be installed, the house looked completed to her and that, although she did not see what she tripped over because she was not looking at the floor, she thought she tripped over a strip of wood or metal. Appellant submitted an affidavit of a private investigator who has investigated many slip and fall cases who stated that upon examination of the house and the area in which the accident occurred, he discovered a strip of oak nosing separating the kitchen and the den which was not flush with the adjacent flooring, which caused an unsafe condition and which, in his opinion, did not conform to the custom and practice of the industry. The affiant stated that reasonable design would dictate that the oak nosing be flush with the adjacent flooring and that the appellee should have provided a cautionary notice, such as “watch your step” on the premises. The affiant, however, stated that he was asked to assume that appellant in fact did trip on that oak nosing between the kitchen and the den. The majority shareholder of appellee, a corporation involved in residential construction which was the builder and general contractor of the residence in which appellant fell, acknowledged in his deposition the existence of the oak nosing which was not flush with the adjacent flooring. The shareholder stated that there was a distance of six inches between the floor and the piece of nosing and that the final floor covering had not been placed on the floor adjacent to. the nosing. He stated that when this floor was completed, the floor would be built up so that it would meet the nosing at the threshold and eliminate the majority of the six-inch differential. The shareholder explained that at the time of the accident the house was not completed, and certain floor coverings were not in place, but that the house was in a salable state. The house had been turned over to a separate company which was responsible for showing the house to clients and handling the sale. At the time of the accident, the “for sale” sign was in the yard of the house and the house was unlocked. There is no evidence that any cautionary or warning signs were on the premises.

In her complaint, appellant alleges that she fell as a result of a dangerous condition on appellee’s property, specifically that the floor was uneven and slick and that the floor was negligent in construction and design, which caused the dangerous condition. “ Tn order to pierce allegations of material fact contained in the plaintiff’s petition, the evidence offered by defendant on motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged.’ [Cit.] ‘If the defendant/movant does not pierce the pleadings and disprove one or more of the essential elements of plaintiff’s case, the mere fact that the evidence submitted by the plaintiff does not prove the latter’s case is not tantamount to the defendant/movant’s carrying his burden.’ (Cit.)

‘ “Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.” ’(Cit.)” Lamb v. Ga.-Pacific Corp., 194 Ga. App. 848, 849 (2) (392 SE2d 307) (1990). Further, “ ‘[i]n ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.’ [Cits.]” Maddox v. Brown, 193 Ga. App. 158 (1) (387 SE2d 584) (1989). A review of the entire record before us reveals that appellee did not pierce the pleadings of appellant, and the inferences and conclusions arising from the deposition testimony and the affidavit submitted by appellant, construed in favor of appellant, convince us that there are genuine issues of material fact to be resolved by a jury as to the cause of the accident and the condition of the floor construction. We arrived at this conclusion even after disregarding the assumption of the cause of the fall contained in the investigator’s affidavit as required by Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 811 (374 SE2d 544) (1988). The cases cited by appellee are inapposite in that the record in the instant case does contain evidence on the cause of the fall; therefore, we have more in our record than just proof of the occurrence of a fall.

Decided October 26, 1990

Rehearing denied November 19, 1990

Joseph M. Todd, for appellant.

K. Marc Barre, Jr., for appellee.

Judgment reversed.

Banke, P. J., concurs. Birdsong, J., concurs in judgment only.


author: Deen, Presiding Judge.

text:
    A90A2163.
    STATE OF GEORGIA v. JACKSON.
    (399 SE2d 88)
   Deen, Presiding Judge.

The State sought forfeiture of a motorcycle seized pursuant to OCGA § 16-13-49, and appeals from an order releasing the vehicle to one of the co-owners.

The motorcycle was seized pursuant to a drug investigation while it was in the possession of Edward L. Jackson. It is undisputed that the vehicle was co-owned by Edward L. Jackson and Twana Jackson, who were both named as defendants and served with the State’s condemnation action filed on September 8, 1989. The State initially alleged in the condemnation action that both defendants knew or should have known that the motorcycle was being used for a criminal purpose and was subject to forfeiture. Edward L. Jackson made no timely response to the condemnation action. Twana Jackson filed a timely sworn answer to the action in which she denied having knowledge that the motorcycle was used for an unlawful purpose, and claimed that, as co-owner of the vehicle, she was entitled to its immediate return.

On May 29, 1990, the State filed a “Request For Final Order,” seeking an order from the trial court condemning the “undivided one-half interest” of Edward L. Jackson in the motorcycle and directing the disposition of the property pursuant to OCGA § 16-13-49. There is nothing in the record to support the State’s allegation that Edward L. Jackson’s interest as co-owner was a one-half undivided interest. In its request the State admitted that it was unable to show that Twana Jackson participated in any unlawful use of the motorcycle, or had any knowledge that the property was being used for a criminal purpose. After a hearing on the State’s request, the trial court entered an order dated July 5, 1990, releasing the motorcycle to Twana Jackson. Held:

1. This appeal requires that we construe the meaning of the forfeiture statute at OCGA § 16-13-49 as it applies to a vehicle with two owners, one of which, as the State concedes, was an innocent owner. The relevant parts of the statute provide that: “(a) The following are subject to forfeitures ... (4) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, hold, conceal, or in any manner to facilitate the transportation, for the purpose of sale or receipt, of property described in paragraph (1) or (2) of this subsection, but . . . (B) No conveyance is subject to forfeiture under this Code section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent . . . (C) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission ... (e) ... A copy of the [State’s] action [for condemnation of the property subject to forfeiture] shall be served on the owner or lessee, if known. If the owner is known, a copy of the action shall also be served upon any person having a duly recorded security interest in or lien upon that merchandise ... At the expiration of 30 days after such filing [of the State’s condemnation action], if no claimant has appeared to defend the action, the court shall order the disposition of the seized merchandise as provided for in this code section. If the court determines that a claimant defending the action knew or by the exercise of ordinary care should have known that the merchandise was to be used for an unlawful purpose subjecting it to forfeiture under this chapter, the court shall order the disposition of the seized merchandise as provided herein and that claimant shall have no claim upon the merchandise or proceeds from the sale thereof.”

Construction of the statute is necessary because it does not explicitly address the forfeiture of co-owned property. In construing a statute a cardinal rule is that the court must first ascertain the legislative intent in enacting the law and then construe the law to implement that intent. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). This court has further held that the forfeiture statute must be strictly construed. Lang v. State, 168 Ga. App. 693, 695 (310 SE2d 276) (1983). With these principles in mind we find that, with respect to the issues at hand, the statute sets out and balances two legislative intentions: (1) the prompt disposition of property subject to forfeiture under the statute (State v. Britt Caribe, Ltd., 154 Ga. App. 476, 477 (268 SE2d 702) (1980)); and (2) the protection of property interests of innocent owners, as defined by the statute. See generally Lummus v. Hopkins, 31 Ga. App. 274, 275 (120 SE 546) (1923) (construing condemnation provisions of Georgia Prohibition Act of 1917). Our task is to apply the statute in a manner that gives effect to those balanced intentions.

Although the term “owner” as used in the statute is ambiguous because it does not contemplate the forfeiture of co-owned conveyances, it is logical to construe that the legislature intended that term to apply to owners to the extent of their interest in property subject to forfeiture. This construction would allow the State to condemn the property interests of wrongdoers, and those otherwise failing to qualify as innocent owners under the statute, while at the same time preserving the interests of innocent owners. It is also consistent with the treatment accorded by the statute in the analogous case of innocent holders of bona fide security interests in forfeited property. See State v. Sewell, 155 Ga. App. 734 (272 SE2d 514) (1980). Furthermore, by recognizing individual ownership interests, we adhere to the concept that claimants who contest forfeiture under the statute have standing only to the extent of their interests in the property. “That interest may be one of ownership, lease holder, or secured party. . . .” Chester v. State of Ga., 168 Ga. App. 618, 619 (309 SE2d 897) (1983). See Hill v. State, 178 Ga. App. 563, 565 (343 SE2d 776) (1986). We further note that even though the statute refers only to service of the condemnation action on “the owner,” the legislature clearly intended that all those having an ownership interest in the property be served.

A number of jurisdictions has construed the effect of similar language under their respective forfeiture statutes. Some have reached the conclusion that the entire property may be forfeited despite the claims of innocent co-owners. See People v. Garner, 732 P2d 1194 (Colo. 1987); In re Forfeiture of 1978 BMW Auto., 524 S2d 1077 (Fla. App. 2 Dist. 1988); State v. One 1968 Buick Electra &c., 301 A2d 297 (Del. Super. 1973). Others have decided that the ownership interests of the innocent co-owners prevents forfeiture of any portion of the property. See Matter of 1979 Dodge Van, 721 P2d 683 (Ariz. App. 1986); State v. One 1984 Toyota Truck, 533 A2d 659 (Md. 1987). In our view the better reasoned approach, and .the one consistent with the intention of our legislature, is a construction which allows forfeiture of the property interest of the wrongdoer and those who knew or should have known of the criminal use of the property, and provides protection to innocent owners to the extent of their property interest. Accord In re Forfeiture of $53, 444 NW2d 182 (Mich. App. 1989).

.Although it is undisputed that Edward L. Jackson and Twana Jackson co-owned the motorcycle, there is no transcript of the proceedings, and the record does not disclose any determination by the trial court, agreement or other evidence sufficient to disclose the nature or percentages of the co-held interests. Accordingly, this case must be remanded to the trial court for a determination of the nature and respective extent of the individual interests held by the co-owners. In the usual case, where property is held by co-owners as tenants in common as to their percentage interests, with each having the right to full use and possession of the entire property, the property may be forfeited under the terms of the statute to the extent of the wrongdoer’s interest, and may not be forfeited to the extent of the interest of the innocent owner, except where there has been compliance with the notice provisions of the statute and the innocent owner fails to contest the forfeiture. See generally Allstate Ins. Co. v. Ammons, 163 Ga. App. 385, 386 (294 SE2d 610) (1982) (tenants in common have undivided interest and right to use and possess the entire property); OCGA § 44-6-120 (tenancy in common defined).

A different rule has been applied in other jurisdictions to property held by co-owners with a right of survivorship. These cases have focused on the unique aspects of a tenancy by the entirety between spouses, which gives the co-owner not only an undivided interest in the whole property, but also a life estate and survivorship interest, which remains unaffected by the other co-owner’s unilateral actions or liabilities. Accordingly, some courts have held that such property cannot be forfeited as a result of its use in a criminal activity by one spouse acting alone. See United States v. One Single Family Residence, 894 F2d 1511 (11th Cir. 1990) (applying Florida law); State v. U. S. Currency, 570 A2d 1304 (N. J. Super. 1990). Georgia has referred to tenancy by the entirety as “ ‘a species of joint tenancy’ ” or “ ‘the nomenclature for a joint tenancy between husband and wife.’ ” Sams v. McDonald, 117 Ga. App. 336, 340 (160 SE2d 594) (1968). The right to create a joint tenancy in property with the right of survivor-ship in two or more persons is set out by statute. OCGA § 44-6-190. “While the doctrine of survivorship as applied to joint tenancies has been distinctly abolished and does not exist in this State, there is no law of this Sítate that we are aware of which prevents parties . . . from expressly providing that an interest in property shall be dependent upon survivorship.” Williams v. Studstill, 251 Ga. 466, 468 (306 SE2d 633) (1983). One co-owner acting alone under such an agreement cannot defeat the contingent remainder of the other. Id. at 469. On the present record we find no evidence of such an interest having been created in the property at hand, and we reach no conclusions as to the application of OCGA § 16-13-49 to property held by co-owners with a right of survivorship.

When a co-owner asserts the innocent owner exception under the statute, the respective burdens of proof remain unchanged. In a condemnation action the state must first carry its burden of proof by a preponderance of the evidence to establish a prima facie case for forfeiture of the property. Bloodworth v. State, 185 Ga. App. 880 (366 SE2d 324) (1988). A co-owner invoking the innocent owner exception has a two-fold burden. See OCGA § 16-13-50 (a). First, in order to establish standing to contest the forfeiture the co-owner has the burden of proving the nature and extent of his interest in the property. See Hill, supra at 565; Chester, supra at 619. Second, the co-owner must prove by a preponderance of the evidence that he is entitled to the exception as defined by the statute. Morgan v. State, 172 Ga. App. 375, 376 (323 SE2d 620) (1984); OCGA § 16-13-49 (a) (4) (B) and (e).

2. There is no merit in appellee’s complaint that the State is not entitled to condemn any interest in the property because it failed to follow the procedural requirements of OCGA § 16-13-49. The State first sought condemnation of the entire motorcycle, and then by its subsequent request, conceded the innocent ownership interest of Twana Jackson and sought only to condemn the interest of Edward L. Jackson. Appellee correctly states that the condemnation action is a special statutory proceeding and must be strictly construed. Lang v. State, supra at 695-696. The record shows the State has complied with the statutory scheme. Even if the State’s later request for an order condemning only a portion of the property was not explicitly provided for by the statute, it was consistent with our construction of the underlying legislative intent, and the State’s concession that appellee lacked knowledge of the wrongdoing was to her benefit. Since OCGA § 16-13-49 does not declare a penalty for lack of strict compliance, nor otherwise prohibit the procedure followed by the State, the statute is regarded as directory under these circumstances and substantial compliance is sufficient. Id. at 695-696; Middleton v. Moody, 216 Ga. 237, 241 (115 SE2d 567) (1960).

In light of this analysis, we find the trial court erred by ordering the release of the motorcycle to Twana Jackson. The order of release is reversed and the case is remanded to the trial court for proceedings consistent with this opinion.

Decided November 7, 1990

Rehearing denied November 19, 1990

Ralph Van Pelt, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellant.

Gleason & Davis, John W. Davis, David J. Dunn, Jr., for appellee.

Judgment reversed and case remanded.

Pope and Beasley, JJ., concur.

       We take note that in addressing the issue of standing it may be appropriate in some circumstances for courts to look beyond a bare allegation of legal title to determine whether the formal holder of title is nothing more than a “strawman” designed to conceal the illegal affairs of others. “[P]eople engaged in illegal activities often attempt to disguise their interests in property by placing title in someone else’s name. The criminal’s need to hide his ownership of property is especially acute when the property itself is used in the illegal activity. . . .” United States v. One 1977 36 Foot Cigarette Ocean Racer, 624 FSupp. 290, 295 (S. D. Fla. 1985). In such cases proof of bare legal title may not be sufficient to establish standing.


author: Banke, Presiding Judge.

text:
    A90A0780, A90A0781.
    ABRAHAMSEN v. McDONALD’S CORPORATION.
    (398 SE2d 861)
   Banke, Presiding Judge.

This litigation commenced as an action by the appellant to recover damages from the appellee for the alleged breach of a series of construction contracts. The appellee responded with a counterclaim for actual damages, punitive damages, and litigation expenses based on allegations of fraud, negligence, and breach of fiduciary duty. The trial court awarded summary judgment to the appellee with respect to the appellant’s claims, and this court affirmed that ruling in Abrahamsen v. McDonald’s Corp., 193 Ga. App. 868 (389 SE2d 386) (1989). The counterclaim remains pending in the trial court.

Subsequent to the grant of its motion for summary judgment on the complaint, the appellee filed a motion in the trial court seeking litigation costs and attorney fees pursuant to OCGA § 9-15-14, based on allegations that the complaint had lacked substantial justification. In this motion, the appellee requested “leave to present evidence of the amounts of . . . fees and expenses incurred in the defense of the [litigation].” However, the trial court denied the motion for the stated reason that the appellee had failed to provide such evidence. Cf. Gilbert v. E & W Constr. Co., 181 Ga. App. 281 (1) (351 SE2d 523) (1986). The appellee moved for reconsideration of this ruling, submitting an affidavit setting forth the amount of attorney fees it sought to recover; and the trial court thereafter entered an order assessing attorney fees against the appellant in the amount of $10,253.75. We granted the appellant’s application for a discretionary appeal from that order; and, after we did so, the trial court, acting sua sponte, entered yet another order reducing the award of attorney fees to $5,063.44. The appellants also applied for a discretionary appeal from that order, and we also granted that application. Held:

Decided November 19, 1990.

Donald E. Loveless, for appellant.

Paul, Hastings, Janofsky & Walker, Craig R. Pendergrast, John G. Parker, for appellee.

1. Pursuant to subsection (e) of OCGA § 9-15-14, a claim for reasonable and necessary attorney fees and expenses of litigation to punish or deter litigation abuses must be brought “within 45 days after the final disposition of the [underlying] action.” Since the appellee’s counterclaim remains pending in the trial court, there clearly has been no final disposition of the present action. It follows that the trial court was not authorized to enter an award of attorney fees pursuant to OCGA § 9-15-14. Consequently, both of the awards appealed from must be reversed. See generally Troup County Bd. of Commrs. v. Public Fin. Corp., 109 Ga. App. 547 (1) (136 SE2d 509) (1964).

2. The second award was additionally void for the reason that our grant of the first application for discretionary appeal acted as a supersedeas, divesting the court of jurisdiction to amend or modify its judgment. See generally Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525 (2) (258 SE2d 139) (1979); OCGA § 5-6-46.

Judgments reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0845.
    GIST v. FERGUSON CONSTRUCTION COMPANY, INC.
    (398 SE2d 862)
   Banke, Presiding Judge.

The appellee construction company brought this action to recover monies allegedly owed by the appellant pursuant to a contract for the construction of a residence, including damages for the rental value of the home for the period of time the appellant had lived there subsequent to its completion but prior to the closing on the permanent loan. The appellant counterclaimed to recover damages for certain alleged construction defects and additionally sought to recover an alleged $850 debt for accounting services he had rendered to the appellee. The case has been tried twice. At the conclusion of the most recent trial, the jury awarded the appellee $18,661 in damages plus $5,500 in litigation expense on the main claim, while awarding the appellant $850 on his counterclaim.

The construction price specified in the contract was $115,240.02; however, shortly after commencing construction, the appellee encountered bedrock, which increased the expense of laying the foundation and installing the septic tank. The appellee sought to recover for this additional expense pursuant to a provision in the contract specifying that “if rock is encountered in attempt to construct basement and septic tank purchaser has option of paying for extra cost incurred due to rock or reducing size of basement and receiving due credit for such reduction.” While the appellant asserted that the additional expense for rock removal had been incurred without his knowledge, the appellee’s president testified that the appellant had in fact reviewed various bids for the work before it was commenced. In support of his construction defect counterclaim, the appellant introduced expert testimony to the effect that the foundation of the house had been improperly constructed, that the doors did not work properly, that the caulking had cracked, and that it would cost $18,750 to remedy these problems.

It was established at trial that in May of 1986, the appellant, who had transferred title to the lot to the appellee prior to the commencement of construction in order to enable the latter to obtain a construction loan, moved into the house without yet having paid anything to the appellee. The appellant testified that he was willing to close the transaction at this time, but only on the condition that he be allowed to escrow the portion of the closing proceeds he considered necessary to correct the alleged construction defects. During the period prior to the closing when the appellant was occupying the house, he refused either to pay rent to the appellee or to pay the interest on the latter’s construction loan, which amounted to $923.54 a month. The closing eventually occurred in April of 1987, at which time the appellee received only the base price called for by the contract. Held:

1. The appellant contends that the evidence did not support an award of damages to the appellee in the amount of $18,661. “ ‘(D)amages growing out of a breach of contract, in order to form the basis of a recovery, must be such as can be traced solely to the breach, must be capable of exact computation, must have arisen naturally and according to the usual course of things from such breach, and must be such as the parties contemplated as a probable result of the breach.’ [Cits.]” National Consultants v. Burt, 186 Ga. App. 27, 36 (4) (366 SE2d 344) (1988). The appellee presented evidence from which the jury could have concluded that the appellant was liable under the terms of their agreement for contract “extras” in the amount of $5,606.65. The appellee further established that it had incurred interest expense on the construction loan in the amount of $10,158.94 during the 11-month period the appellant had occupied the house prior to the closing. While these two figures do not add up to $18,661, there was also evidence, in the form of testimony from the appellee’s president, that the customary rent for a house of that size at that location was $2,400 a month. As the appellant could be charged with an implied contractual obligation to pay a fair and reasonable amount of rent for the use and occupancy of the home during the period in question, see Goodman v. Friedman, 117 Ga. App. 475 (3), 480 (161 SE2d 71) (1968), and as an implied rental obligation of less than $1,200 per month, combined with the appellant’s obligation for the contract “extras,” would be sufficient to support the jury’s award of damages, we find this enumeration of error to be without merit.

2. The appellant enumerates as error the admission of evidence that he ultimately received $200,000 for the property as a result of its condemnation by the Georgia Department of Transportation. Clearly, this evidence had no bearing on the issues of whether and how much the appellant had been damaged by the alleged construction defects, for while the size of the condemnation award may have tended to establish that the house was worth more at the time the condemnation occurred than the cost of construction, its market value might have been even greater had the alleged defects not existed. However, we believe this evidence could properly be considered relevant and admissible on the issue of the property’s rental value. Accordingly, we hold that the trial court did not err in admitting it.

3. The appellant contends that the trial court erred in excluding testimony concerning certain adverse tax consequences he had allegedly suffered in connection with the transaction. However, the transcript reveals that the appellant was in fact allowed to offer testimony on this subject and that his counsel acceded without objection when instructed by the court to move on to another subject. Accordingly, this enumeration of error presents nothing for review.

4. The appellant contends that the evidence did not authorize an award of attorney fees pursuant to OCGA § 13-6-11. “Generally, expenses of litigation — including attorney fees, are not allowed as a part of damages unless the defendant has acted in bad faith, has been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense.” Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 383 (3) (277 SE2d 753) (1981). An award of such expenses based on stubborn litigiousness is authorized where there is no genuine dispute or bona fide controversy as to the validity of the claim. See Georgia-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747, 753-4 (266 SE2d 531) (1980). As previously indicated, there was evidence in this case from which the jury could have determined that the appellant had in fact reviewed and approved the additional expenditure for the rock removal. The only remaining basis for his refusal to pay for the contract extras and for the rental value of the house during the period he was living in it prior to the closing was his claim that he was entitled to a set-off for the alleged construction defects. However, the jury found against him on this claim, and we do not believe the evidence precluded a determination by the jury that he had no reasonable basis for insisting upon such a set-off. “[A]n award of attorney fees made pursuant to [OCGA § 13-6-11] ‘should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense.’ [Cits.]” Fuller v. Moister, 248 Ga. 287, 288 (282 SE2d 889) (1981). “There being some evidence authorizing the award of attorney fees, this court cannot say as a matter of law that there was a reasonable defense to the main claim. [Cits.]” Jackson v. Brinegar, Inc., 165 Ga. App. 432, 436 (2) (301 SE2d 493) (1983).

Decided November 19, 1990.

J. Douglas Sexton, for appellant.

Pruitt & Britt, Glyndon C. Pruitt, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge. Deen, Presiding Judge,

text:
    A90A0945.
    ROBINSON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (399 SE2d 252)
   Pope, Judge.

Appellant/plaintiff Darin Clint Robinson was injured when his car struck a disabled MARTA bus stopped on the expressway. He then brought this negligence action and the jury returned a verdict in favor of appellee/defendant MARTA.

1. MARTA argues that Robinson waived any exceptions he had to the trial court’s refusal to give requests to charge he had submitted. We note that counsel for Robinson specifically stated the numbers of the previously submitted written requests to charge that he felt the trial court should have given. This was sufficient to preserve the issue. The holding to the contrary in Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga. App. 108 (2a) (179 SE2d 525) (1970), cited to us by MARTA, was disapproved by the Supreme Court in Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8 (2) (195 SE2d 417) (1973).

2. Robinson argues that the trial court erred in refusing to charge on sudden emergency. At trial, Robinson testified that he had no memory of the accident. Other witnesses established that a MARTA bus had broken down in the second northbound lane of 1-75 on the night of January 13, 1986. The bus had on its lights and emergency flashers. The driver radioed for help and a towtruck was dispatched. As the driver of the towtruck approached, he saw the bus from a distance of about 200 yards. He then noticed the car driven by Robinson pass him on the right and enter the lane in front of him in which the bus was stopped. At the last instant, Robinson swerved to the left, but still collided with the bus.

“The 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.” (Citations and punctuation omitted.) Ray v. Anderson, 189 Ga. App. 80, 81 (2) (374 SE2d 819) (1988). Of course, here Robinson was the plaintiff. However, Robinson sought the charge in connection with the issue of comparative negligence. Thus, sudden emergency could have been a defense to a finding that Robinson was negligent to such a degree that he would not be entitled to recover, if the principle of sudden emergency had applied. We hold that it did not apply. Robinson had no choice after encountering the peril, the stalled bus. Thus, the charge was inapplicable. See Howard v. Jones, 187 Ga. App. 756 (2) (371 SE2d 196) (1988). The trial court did not err in refusing to give the charge.

3. We have examined the charge on comparative negligence given by the trial court as well as the recharge on that issue and hold that the charges given adequately explained the principle and were not confusing. Nor do we see the applicability of Robinson’s request to charge no. 23, which dealt with negligence per se resulting from an alleged violation of OCGA § 40-8-7 (a) to the issue of comparative negligence. We find no error.

4. Robinson argues that the trial court erred in failing to give his requests to charge on negligence per se. As noted above, Robinson sought a charge on negligence per se for violation of OCGA § 40-8-7 (a), which says that no one may drive or move a motor vehicle on the highway unless the equipment on the vehicle is in good operating order. The evidence at trial showed that MARTA regularly serviced its vehicles and that the vehicle involved here had been so maintained and that the driver had no reason to suspect that anything was wrong with the vehicle before it broke down. It was not error to refuse the charge. OCGA § 40-6-203 (a) (1) (I) prohibits stopping a vehicle on a controlled-access highway; however, OCGA § 40-6-204 provides an exception for disabled vehicles from the mandate of OCGA § 40-6-203 (a) (1) (I). The situation in the present case came within the exception and the trial court properly denied Robinson’s request to charge negligence per se on this basis.

5. We find no error in the trial court’s recharge on the issue of comparative negligence and its statement to the jury at the conclusion of that recharge: “I also remind you of the entire charge from its beginning to its end.” Robinson argues that this caused confusion to the jury because the trial court had directed a verdict in favor of him on MARTA’s counterclaim for property damage. However, we note that the record shows that immediately after the recharge, the trial court engaged in a colloquy with the jury in which that issue was raised by a juror and the. trial court advised the jury that by directing a verdict he had removed that issue from their consideration and that they were not to consider it. Viewing the charge as a whole, we find that the jury was adequately and properly instructed on comparative negligence.

Decided November 19, 1990.

Saveli & Williams, Robert E. Mulholland, Zirkle & Smith, Charles B. Zirkle, Jr., for appellant.

Churchill & Ferguson, Anthony M. Thomasson, Kirkland A. McGhee, Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie Scheier, for appellee.

Judgment affirmed.

Beasley, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

I fully concur in all divisions of the majority opinion except Division 2.1 agree there was no error in refusing to give Robinson’s charge on sudden emergency, but for different reasons than stated by the majority. I believe a charge on sudden emergency was authorized by the evidence. Though the evidence was sparse because Robinson had no memory of the accident, the testimony given by the tow truck driver describing Robinson’s encounter at night with a bus stopped in a lane of Interstate 75, and his last second attempt to avoid the collision, provided a sufficient basis to support a charge on sudden emergency. “ ‘(I)t is a well established rule that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. (Cit.) It is not even necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. (Cit.)’ [Cit.]” Franklin v. Hennrich, 196 Ga. App. 372, 375 (395 SE2d 859) (1990).

Robinson requested the following charge: “[W]hen a driver of a motor vehicle is confronted with a sudden emergency caused by the negligence of another, in such an emergency he is only charged with the duty of exercising ordinary care and diligence under the circumstances and is not barred from recovery because he exercised bad judgment under the circumstances.” The requested charge was an incomplete statement of the law of sudden emergency. See Franklin, supra at 374. Therefore, it was not error for the trial court to refuse to give it. French v. Stephens, 117 Ga. App. 61, 64 (159 SE2d 484) (1967).


author: McMurray, Presiding Judge. Sognier, Judge,

text:
    A90A1204.
    GOODMAN et al. v. LIPMAN et al.
    (399 SE2d 255)
   McMurray, Presiding Judge.

Bernard Goodman and Lillian Goodman filed the action in the case sub judice against Bernard S. Lipman, M.D., a cardiologist, and his professional corporation, Atlanta Cardiologists & Internists, P.C., and numerous other defendants. We are concerned only with the Goodmans’ medical malpractice action against Dr. Lipman wherein it was alleged that Dr. Lipman failed to exercise the requisite degree of skill and care in treating Bernard Goodman’s chronic heart disease. More specifically, the Goodmans alleged that Bernard Goodman suffered a stroke in April of 1983 after Dr. Lipman improperly regulated medications (“Coumadin” and “Nembutal”) which affected the coagulatory properties of Mr. Goodman’s blood.

The Goodmans named Richard L. Ruffalo, M.D., as an expert witness. Dr. Lipman moved to exclude Dr. Ruffalo, arguing that Dr. Ruffalo is unqualified because he was not a licenced physician at the time of the alleged malpractice. In opposition, the Goodmans submitted Dr. Ruffalo’s affidavit and his deposition. The trial court granted this motion, finding “as a matter of law, that Dr. Richard Ruffalo is not competent to testify as an expert witness in this case based upon the facts [sic] that he had not [entered] medical school at the time of the alleged incident and that he did not become licensed until some five years after the alleged malpractice.” The trial court granted a certificate of immediate review and we granted an appeal. Held:

1. First, the Goodmans contend “[t]he trial court has erred as a matter of law in entering an Order which holds that due to the fact [that Dr. Ruffalo] was not a licensed physician at the time of the alleged acts of malpractice, [he] is not competent to testify as an expert witness upon the trial of this case.”

“ ‘Whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless manifestly abused. American Fire &c. Co. v. Grizzle, 108 Ga. App. 496, 498 (133 SE2d 400).’ Howard v. State Hwy. Dept., 117 Ga. App. 280, 282 (160 SE2d 204).” Oak Ridge Village v. La Siesta Mobile Home Park, 130 Ga. App. 539, 540 (1) (203 SE2d 748). In the case sub judice, the trial court did not exercise discretion in determining whether Dr. Ruffalo was qualified as an expert witness, it ex-eluded Dr. Ruffalo’s testimony because he was not a physician at the time of the alleged malpractice.

No Georgia case has been cited by the parties or found by the court which provides that a medical expert must be a physician at the time of the alleged malpractice. However, Dr. Lipman argues that Dr. RufFalo is unqualified to testify as to the applicable standard of care required of physicians at the time of the alleged malpractice because Dr. RufFalo was not then a physician. This argument is without merit.

Simply because a physician was not licenced to practice medicine at the time of an alleged incident of malpractice does not mean that the physician cannot become familiar with the applicable standard of care practiced in the medical community at the time of the alleged malpractice. “A rule which would require an expert witness to have been an expert at the time of the questioned event would prevent proof based upon knowledge of historical events. Application of standards to conduct which predates the oldest living expert would be excluded by such a ruling. . . .” Grindstaff v. Coleman, 681 F2d 740, 743 (1982).

In the case sub judice, Dr. RufFalo deposed that he is familiar with the requisite standard of care prevailing at the time of the alleged malpractice and his affidavit and deposition testimony support this statement. Consequently, the trial court erred in excluding Dr. Ruffalo’s testimony based solely on the ground that he was not a physician at the time of the alleged malpractice. The trial court must examine the evidence relevant to Dr. Ruffalo’s knowledge and expert qualifications and determine whether Dr. RufFalo possesses the requisite knowledge, skill and training to qualify him as an expert witness. Accordingly, the case is remanded and the trial court is directed to exercise its discretion before determining whether Dr. RufFalo is qualified to testify as an expert witness. See Forbro Design Corp. v. Raytheon Co., 532 F2d 758, 762 (1976).

2. Next, the Goodmans contend “[t]he trial court has erred . . . in that it has applied an incorrect ‘standard’ with regard to the knowledge which must be possessed by a physician in order to render him competent to testify upon the trial of a case.”

In its order disqualifying Dr. RufFalo as an expert witness the trial court stated: “Furthermore, the proper standard is one of ‘knowledge,’ not ‘familiarity.’ The Court must find that the proffered expert has knowledge of the prevailing standard of care based upon his experience, training and education.” Apparently, this holding was in response to Dr. Ruffalo’s affidavit statement that he is “familiar with the standards of care, skill, diligence and treatment which were possessed, practiced and employed by the medical profession generally during April of 1983. . . .”

Conclusory statements as to a witness’ “knowledge” or “familiarity” in a particular art, skill or science are not probative in determining the witness’ qualifications as an expert witness. Such determination must be based on evidence of the witness’ education, training or experience in the pertinent field of study. See Bethea v. Smith, 176 Ga. App. 467, 468 (2), 469 (336 SE2d 295). Consequently, the degree of Dr. Ruffalo’s “familiarity” or “knowledge” of the pertinent standard of care must be drawn from evidence of his education, training or experience, not from the witness’ conclusory statement that he is “familiar” with the requisite standards of care prevailing at the time of the alleged malpractice.

3. In a third enumeration, the Goodmans contend the trial court erred in excluding the testimony of William T. Sawyer, “an expert in the field of Pharmacology, . . . competent to testify with regard to the pharmacokinetics and pharmacodynamics of the drug, Coumadin.”

The Goodmans named William T. Sawyer as an expert witness. However, Dr. Lipman moved to exclude this testimony, arguing that Mr. Sawyer is a pharmacologist and is therefore not qualified to express an “opinion with regard to both the standard of care in anticoagulant therapy as to causation of [Mr. Goodman’s] injuries.” The trial court agreed and ordered “that Pharmacologist William S. Sawyer, M.S. . . . not be permitted to testify at the trial of this medical negligence action.”

“ ‘(T)he law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise. [For example, a] licensed registered nurse is qualified to testify as an expert witness within the areas of her expertise. (Cit.)’ Hyde v. State, 189 Ga. App. 727, 728 (377 SE2d 187) (1988). Whether a person possesses the ‘ “qualification as an expert witness rests entirely in the sound discretion of the judge . . . The decision of the judge will not usually be overturned” unless the witness actually lacks appropriate credentials or the judge has applied the wrong criteria.’ Hyde v. State, supra at 729.” Hunter v. State, 192 Ga. App. 675, 676 (2) (385 SE2d 764).

In the case sub judice, the Goodmans do not argue that the trial court abused its discretion in excluding Mr. Sawyer’s testimony with regard to the standard of care required of Dr. Lipman in treating Mr. Goodman. They argue that the trial court erred in excluding Mr. Sawyer as an expert “with regard to the pharmacokinetics and pharmacodynamics of the drug, Coumadin.”

“The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-9-67. See Green, Ga. Law of Evidence (3d ed.), § 111, p. 211. The record in the case sub judice demonstrates that expert testimony regarding the properties of “Coumadin,” “Nembutal” and other drugs may well be relevant to issues before the trier of fact. Consequently, the trial court erred in totally excluding Mr. Sawyer as a witness.

Decided November 19, 1990.

Robert D. Brooks, Robert C. Glustrom, for appellants.

Whitehurst & Frick, Elaine W. Whitehurst, for appellees.

Judgment reversed and case remanded with direction.

Carley, C. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur fully in the majority opinion. I write only to caution that in allowing a non-medical doctor to testify in a medical malpractice case as to matters within the expert’s own field of expertise, we are not sanctioning that expert’s testimony about other matters. Care must be taken when such a non-medical expert testifies to assure that the witness remains solidly within his sphere of expertise, and that no inferences are drawn or implications expressed regarding the standard of care or degree of skill of the defendant, which is not within such a witness’ knowledge.