author: Banke, Presiding Judge.

text:
    A90A1715.
    SPEIR v. NICHOLSON et al.
    (401 SE2d 588)
   Banke, Presiding Judge.

This is the second, though undoubtedly not the last, appearance of this case before this court. The appellant sued the two appellees, along with others who are no longer parties to the litigation, seeking to recover an indebtedness they allegedly owed him as the result of their purchase of a business of which he (the appellant) was a creditor. The trial ended with the direction of a verdict in favor of the appellees; and on August 24, 1988, the appellant filed a timely notice of appeal from the judgment entered on that ruling. On December 20, 1988, the appellees moved to dismiss the appeal on the ground that the appellant had neither caused the transcript to be filed within 30 days in accordance with OCGA § 5-6-42 nor obtained an extension of time for such filing in accordance with OCGA § 5-6-39. The transcript was ultimately filed a month later, on January 20, 1989; however, on January 25, 1989, the trial court granted the dismissal motion. Subsequently, in a decision rendered on November 8, 1989, this court reversed that dismissal and remanded the case to the trial court for a determination as to whether the four-month delay in filing the transcript had been both unreasonable and inexcusable. Speir v. Nicholson, 193 Ga. App. 444 (388 SE2d 42) (1989). In so doing, we cited Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327, 328 (375 SE2d 492) (1988), wherein this court had upheld a trial court’s determination that a four-month delay in filing a transcript was both unreasonable and inexcusable based on evidence showing that the appellant in that case had “made no effort to discover the transcript would not be timely filed so that a timely application for extension of time to file the transcript could be made.” Id. at 328.

In the present case, as in the Glen Restaurants case, no attempt was made by the appellant prior to the expiration of the 30-day filing period either to discover from the court reporter whether the transcript would be timely filed or to obtain from the trial court an extension of time for such filing. Citing Glen Restaurants, the trial court therefore dismissed the appeal again on remand, based on the following analysis: “Even assuming that the [appellant] himself was not personally at fault for the delay in filing the transcript (that he timely called the court reporter to order the transcript and paid all bills [for it]), the fact that the initial delay in the preparation of the transcript may not have been the fault of the [appellant] does not excuse the filing delay, in the absence of a proper request by [the appellant] for an extension of time.” The present appeal followed. Held:

Decided January 25, 1991.

Bannister & Black, Charles C. Black, for appellant.

Swift, Currie, McGhee & Hiers, Jane C. Barwick, James W. Dilz, for appellees.

1. Subsequent to the entry of the most recent dismissal order, the Georgia Supreme Court, in Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990), held that a delay in filing a transcript could not be characterized as unreasonable and inexcusable based merely upon the appellant’s failure to seek an extension of time for such filing but that the trial court was required to “make a specific finding that the failure to file was caused by [the appellant].” Id. at 116. In so ruling, the Supreme Court expressly cited and implicitly overruled Glen Restaurants v. Bldg. 5 Assoc., supra. It follows that the present case must again be remanded to the trial court, this time for a determination as to whether the delay in filing the transcript was actually “caused by” the appellant’s failure, upon ordering the transcript, to ascertain from the court reporter when it would be filed and/or to seek from the trial court an extension of time for such filing. See generally OCGA § 5-6-48 (c & f).

2. As we are again unable to determine from the record whether the original appeal was properly dismissed, we are again unable to reach the merits of the appeal.

Judgment vacated and case remanded with direction.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A2330.
    UNDERWOOD v. THE STATE.
    (401 SE2d 589)
   Pope, Judge.

Defendant Janice Underwood appeals her conviction of theft by taking. Each of her three enumerations of error relates to the issue of the sufficiency of the evidence, so we will address them as one.

The evidence of record shows defendant accompanied her boyfriend, Steven Saxon, to an automobile dealership in Gainesville. At the time, Mr. Saxon was residing at a diversion center as part of his sentence for car theft. They were driven to the dealership by a mutual friend, also a resident of the diversion center,, who testified he heard Saxon tell the defendant he intended to leave, meaning escape, the center. At the dealership Saxon asked a sales agent to allow him to test drive a two-seater vehicle and, with defendant in range of hearing, referred to her as his wife. Because there was no room for the sales agent to accompany the pair on the test drive, he allowed them to drive the vehicle off the lot unattended. The vehicle was not returned and the pair was arrested almost one month later in Savannah.

At the time the pair was arrested, defendant was inside a grocery store and Saxon wás in the parking lot of the store in possession of the automobile. Several items were found in defendant’s purse at the time of her arrest, including what appears to be a dealership key ring with information describing the vehicle, another card. describing the vehicle, an automobile price sticker and a handwritten document prepared to resemble an automobile title registration purporting to convey “title” of Steven C. Saxon to Janice L. Underwood, in which “crime, computers, new cars” were listed as Saxon’s hobbies.

“While mere presence at the scene of the commission of a crime is not sufficient to convict one of being a party thereto, presence, companionship, and conduct both before and after .the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). Here, the evidence shows defendant was not only present at the time the automobile was wrongfully taken, she was a continuing companion of the person who directly took the car. Before the taking she was present when her co-defendant described her as his wife, which allowed him to get possession of the car without the supervision of the sales agent, yet she did not correct the misrepresentation. After the taking defendant continued to travel with her co-defendant even though she knew he did not have rightful possession of the car. We conclude sufficient circumstantial evidence was adduced at trial to permit a rational trier of fact to find defendant guilty as a party to the crime beyond a reasonable doubt. Cf. Moore v. State, 255 Ga. 519 (1) (340 SE2d 888) (1986); Parker v. State, 155 Ga. App. 617 (2) (271 SE2d 871) (1980) (in which evidence of presence and even approval of the co-defendant’s acts were deemed insufficient circumstantial evidence to support conviction). Because we conclude there was sufficient evidence of joint liability for the co-defendant’s acts, the trial court did not err in instructing the jury on joint and constructive possession.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided January 25, 1991.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.


author: Beasley, Judge. .

text:
    A90A1734.
    SALVADOR et al. v. COPPINGER.
    (401 SE2d 590)
   Beasley, Judge. .

The application to appeal of plaintiffs Salvador was granted to consider the denial of their motion for new trial and other claimed errors in their suit arising from an automobile accident. The focus is on the amount of damages awarded.

Plaintiff Salvador was separated from her husband, a resident of Georgia, and was staying with her parents in Tennessee. She had exclusive possession of their unregistered, uninsured car.

Salvador was driving with her minor son as a passenger when they were involved in a collision with Coppinger. She was thrown through the windshield and suffered severe lacerations of her face, incurring medical expenses of $2,575.50. The child’s injuries resulted in medical expenses of $1,130.35. Damages were also sought for her lost wages and for the pain and suffering of both mother and son. Coppinger, who was not injured, counterclaimed for damages to his vehicle, contending the wreck was due to plaintiff’s sole or contributory negligence.

The jury, using an interrogatory verdict form, awarded plaintiffs a total amount equal to the exact amount of the medical expenses requested and proved, but left blank the spaces provided for pain and suffering, lost wages, other expenses, and property damage.

1. The Salvadors, in the first three enumerations, contend (1) the court erred in denying a new trial because the verdict was grossly inadequate in that no amount was given for actual damages other than medical expenses; (2) the court erred in refusing to give their requested jury instruction that pain and suffering are inferred from injury as a matter of law.

(a) For enumerations 1 and 3 we have in the record only the transcribed charge of the court and the deposition testimony of the doctor who treated Mrs. Salvador, most of which deposition was presented to the jury as evidence. The assertions of lost wages, property damage, and loss of personal articles referenced in the brief are not considered, there being no evidence of them before this court. “ ‘The burden is on him who asserts error to show it affirmatively by the record (cit.). The brief cannot be used in lieu of the record for adding evidence to support a claim of error. (Cit.)’ (Punctuation omitted.) Cantrell v. Red Wing Rollerway, 184 Ga. App. 506 (2) (361 SE2d 720) (1987).” Gurly v. Hinson, 194 Ga. App. 673, 674 (4) (391 SE2d 483) (1990). Thus, we consider only the pain and suffering aspect of damages.

Damage is ordinarily a jury question, OCGA § 51-12-12 (a), because it is an issue of fact. The law, however, does impose maximum and minimum limits, forbidding both “excessive” and “inadequate” damages. As worded in the 1987 amended version of the statute, the court is prohibited from interfering with the factfinder’s verdict “unless the damages awarded . . . are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence. . . ."

With respect to actual damages for pain and suffering, these “are determined solely by the enlightened conscience of an impartial jury,” International Assn. &c. Local 387 v. Moore, 149 Ga. App. 431, 432 (1) (254 SE2d 438) (1979), and that is what the trial court must respect. On appeal, we will not disturb an award “unless it is so flagrant [a departure from the evidence] as to ‘shock the conscience.’ ” Cullen v. Timm, 184 Ga. App. 80, 83 (2) (360 SE2d 745) (1987); Medlin v. Royston Lumber &c., 193 Ga. App. 608, 610 (3) (388 SE2d 861) (1989). Although an excessive or inadequate verdict is a mistake of fact rather than of law, Atlanta Transit System v. Robinson, 134 Ga. App. 170, 171 (1) (213 SE2d 547) (1975), the trial court would have to exercise its own judgment in measuring the damages by the statutory yardstick, when confronted with a motion for new trial on this ground.

The fact that the verdict awarded was the exact amount of medical expenses proven, which was stipulated by the parties, does not ipso facto shock the conscience of the court or prove no award was made for pain and suffering. Coker v. State Farm &c. Ins. Co., 193 Ga. App. 423, 424 (2) (388 SE2d 34) (1989). “[W]hile this may have been the exact sum claimed as special damages [medical expenses and lost wages] . . . , the jury may have reduced either or both of these items. It cannot be said as a matter of law that the jury failed to allow any amount for pain and suffering. See Johnson v. Cook, 123 Ga. App. 302, [305 (180 SE2d 591) (1971)].” Barnes v. Cornett, 134 Ga. App. 120 (3) (213 SE2d 703) (1975). See McAfee v. Fickling & Walker Dev. Co., 123 Ga. App. 647, 649 (182 SE2d 146) (1971).

In the present case, there was at the time of the decision on the motion for new trial and there is now no way to determine the weighing and analysis engaged in by the jurors. Here, even with the special interrogatory verdict form, it cannot be said that the trial court abused its discretion in concluding that the verdict was not inadequate because the jury did not designate some amount as pain and suffering damages, so as to require a new trial. St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga. App. 422 (145 SE2d 624) (1965). See Jones v. Spindel, 128 Ga. App. 88, 96 (2) (196 SE2d 22) (1973). For one thing, there was a claim of contributory negligence by Coppinger and the jury may have chosen to offset these damages, leaving the amount designated for medical expenses on the verdict form to represent the final damages awarded to plaintiffs.

Without the full transcript to consider, we must assume that the trial court’s conclusions in denying the motion for new trial on the inadequacy of the verdict were proper. McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825) (1990); Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988); In re R. L. Y., 181 Ga. App. 14, 16 (351 SE2d 243) (1986). “Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.” Cullen, supra at 83 (2).

(b) At the conclusion of the charge, which included a thorough instruction on the issue of pain and suffering, plaintiffs voiced a blanket objection to the failure to give all their requests to charge not given by the court. Plaintiffs contend in this tribunal that it was error to fail to give their request number 24: “Bodily pain and suffering are inferred from personal injury, and loss of time from the disabling effect thereof.” The charge is based on language in County of Bibb v. Ham, 110 Ga. 340, 341 (35 SE 656) (1900).

Assuming the objection properly preserved the matter for appeal, Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 860 (6) (360 SE2d 418) (1987), it was not error to refuse to give the requested charge. “In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. [Cit.] ” Medoc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983). “The mere fact that a requested charge was taken from an opinion of our appellate courts does not render its use appropriate in charging the jury. [Cits.]” Kamor v. Fireman’s Fund Ins. Co., 133 Ga. App. 234, 238 (5) (211 SE2d 179) (1974); Citizens Bank &c. v. Hooks, 173 Ga. App. 865, 867 (3) (328 SE2d 755) (1985).

The charge given fully covered pain and suffering; the refusal to give the additional charge was not error.

2. At the conclusion of the trial, the court made a finding that “the vehicle in question under the evidence as a whole should have been registered in the State of Georgia, that it was unregistered in any state, not registered anywhere.” It then wrote off $2,500 for both mother and son, based on OCGA §§ 33-34-4 & 33-34-9 (b) and Davidson v. Bradford, 245 Ga. 8 (262 SE2d 780) (1980).

Decided January 28, 1991.

Amy A. Petulla, Christopher A. Townley, for appellants.

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

The mother contends the write-off is erroneous because the car was not required to be registered in Georgia. Since we are provided no evidence upon which to contradict the court’s factual ruling, Cantrell, supra, we are bound by its finding and must conclude the write-off as to her was proper. Davidson, supra; Glover v. Grogan, 162 Ga. App. 768, 771 (5) (292 SE2d 465) (1982).

This does not apply to the passenger, who may recover to the full extent of his rights under tort law. Eidson v. Reagin, 146 Ga. App. 814, 815 (247 SE2d 486) (1978).

Judgment affirmed with direction to the court to enter a judgment in accordance with the verdict as to plaintiff Matthew Salvador by next friends Janie Sue Salvador and Steve Salvador.

Pope and Andrews, JJ., concur.

       Her husband was named as a plaintiff solely to serve as next friend of their minor son.


author: Carley, Judge.

text:
    A90A1729.
    YEARWOOD v. THE STATE.
    (401 SE2d 558)
   Carley, Judge.

Appellant was tried before a jury and found guilty of arson in the first and second degree, aggravated assault, and cruelty to dogs. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant’s enumeration of the general grounds is without merit. When construed most strongly against appellant, the evidence was sufficient to authorize a rational trior of fact reasonably to have found proof of appellant’s guilt beyond a reasonable doubt. See generally Thornton v. State, 161 Ga. App. 296, 299 (1) (287 SE2d 749) (1982).

2. After a hearing outside the presence of the jury, the trial court determined that an incriminating statement had been freely and voluntarily made by appellant after he had been given proper Miranda warnings. This ruling is enumerated as error.

“[F] actual and credibility determinations as to voluntariness of [an incriminating statement] . . . must be accepted by appellate courts unless such determinations are clearly erroneous. (Cit.)” [Cits.]’ ” Lindsey v. State, 196 Ga. App. 67 (1) (395 SE2d 328) (1990). The uncontradicted evidence supports the finding of the trial court in the instant case. Accordingly, appellant’s incriminating statement was properly admitted.

Decided January 10, 1991

Rehearing denied January 31, 1991.

Wilson B. Mitcham, Jr., for appellant.

Morris Yearwood, pro se.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

3. The trial court gave correct jury instructions on the presumption of innocence, the State’s burden of proof, reasonable doubt, and on the law regarding circumstantial evidence and the exclusion of every reasonable hypothesis save the guilt of the accused. In response to the trial court’s inquiry, appellant nevertheless objected, contending that the jury would not understand the distinction between “guilt beyond a reasonable doubt” on the one hand and a “reasonable hypothesis” excluding the guilt of the accused on the other. On appeal, appellant enumerates the trial court’s charge as error, urging that it was ambiguous for the reasons asserted below.

The charge, as given, stated general legal principles which were correct and otherwise applicable in the instant case. If appellant wished to have the jury further instructed so as to clarify the interplay between any of these legal principles, he should have made a written request for such additional instructions. No such written request was made and appellant’s contention that the charge as given was ambiguous is without merit. “The [purportedly ambiguous instructions] must be read in the context of the whole charge, [cit.], and in the context of the evidence to which [they were] to apply. [Cit.] . . . ‘Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial, are not reversible error.’ [Cit.]” Smaha v. Moore, 193 Ga. App. 23, 24 (387 SE2d 13) (1989).

Judgments affirmed.

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


author: Sognier, Chief Judge.

text:
    A90A1829.
    JAMES v. THE STATE.
    (401 SE2d 558)
   Sognier, Chief Judge.

Wendall James was convicted of DUI and speeding. He appeals on the sole basis that the trial court erred by denying his motion to suppress the results of the state-administered breath test.

We affirm. At the hearing on the motion to suppress, the arresting officer testified that he read appellant his implied consent rights. Both the arresting officer and the licensed intoximeter operator testified that appellant never requested an independent test of his blood alcohol level. Although appellant testified he did request an independent test, the credibility of the witnesses was for the trial court, as the trier of fact, see State v. Williams, 193 Ga. App. 462 (388 SE2d 55) (1989), and we find no error in the denial of appellant’s motion here. See generally id. Appellant raises numerous objections to matters discussed by the trial court in a letter to counsel which was filed in the record, but there is nothing in the record indicating that the letter in question was made a part of the order denying the motion. Furthermore, it is well established that this court will not reverse a correct decision of the trial court, regardless of the reason given therefor. See Ely v. State, 192 Ga. App. 203, 205 (4) (384 SE2d 268) (1989).

Decided January 9, 1991

Rehearing denied January 31, 1991.

Stephen N. Hollomon, for appellant.

Carl A. Veline, Jr., Solicitor, for appellee.

Judgment affirmed.

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


text:
    A90A1860.
    In the Interest of A. W. et al., children.
    (401 SE2d 560)
   Sognier, Chief Judge.

The mother of A. W., M. W., T. W., and B. W. appeals from the order of the Juvenile Court of Baldwin County terminating her parental rights. She contends the evidence was insufficient to support the juvenile court’s action.

The record reveals that appellant was arrested for shoplifting, and when the caretaker with whom appellant then arranged to leave her children did not wish to keep the children any longer and was not providing adequate care, DFCS obtained temporary custody of the children, all under ten years old. The children’s father was incarcerated as well. The children were placed in foster care, and a service agreement was formulated by DFCS with the parents stating the goals for the family, which included maintaining regular visits, establishing and maintaining a stable home with utilities, seeking and obtaining employment, providing support for the children, cooperating with the agency, and refraining from illegal activities.

At the termination hearing, testimony from DFCS caseworkers and supervisors established that none of those goals had been met. Appellant’s visits were extremely irregular and frequently emotionally disturbing to the children. Appellant and her husband do not live together and appellant has no permanent residence but has been living with various relatives and friends. She has not informed the agency of her whereabouts and at times has disappeared.

Appellant concedes that her conduct has not been exemplary, but states that she will do better in the future and argues, citing Hooks v. Baldwin County &c. Svcs., 162 Ga. App. 142 (290 SE2d 356) (1982), that lack of cooperation with the agency is not sufficient grounds for terminating her parental rights. We cannot agree with appellant that her actions indicate only hostility to the agency bureaucracy. Rather, we find that here, as in In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) (1988), “[a]ppellant has asked for an opportunity to demonstrate [her] fitness as a parent, but ‘the evidence . . . suggests no prognosis of improvement. . . . (A) plea of [more time] to improve is without force to overcome the proof of unrelieved detriment already suffered by the children for (most of their) life, where there is no indication,’ other than the [mother]’s vague promises, which the trial court found were not credible, that these conditions will be reversed. [Cit.]”

Although appellant testified she has sought employment and, in fact, found employment briefly several times, she was unemployed at the time of the hearing below, and although DFCS offered to assist appellant search for work by providing transportation, she has never accepted their offer. Moreover, appellant has never paid support for her children, even during the times she was employed. She did not attend the initial adjudicatory hearing on the deprivation petition or a later extension hearing, although she had been released from jail, and failed to attend any of the case panel reviews scheduled by DFCS. Parental power may be lost by failure to provide necessaries for one’s child. OCGA § 19-7-1 (b) (3). See In re B. D. C., 256 Ga. 511, 512 (350 SE2d 444) (1986). Failing to maintain contact with children may also result in termination of parental rights. In the Interest of J. L. Y., 184 Ga. App. 254-255 (1) (361 SE2d 246) (1987). In addition, and perhaps most importantly, in the present case appellant has not refrained from illegal activities, but she has been convicted several times for shoplifting and once for giving a false name to an officer. Her probation was revoked, and she was imprisoned for six months.

The psychotherapist and social worker treating the children testified that they had bonded well with their foster families, who wished to adopt them, and that at least two of the children did not want to return to their mother’s custody or were apprehensive about doing so. The experts’ testimony was that the children need stability for their continued well being and that this stability would not be available to them in long term foster care, which is the only alternative if appellant’s parental rights are not terminated. The severe detrimental effects of such “foster care drift” are a legitimate factor for consideration by the juvenile court. See generally In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987).

Decided January 10, 1991

Rehearing denied January 31, 1991

Waddell, Emerson, George & Buice, B. Carl Buice, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Margot M. Cairnes, J. David McRee, Philip B. Spivey, for appellee.

“The termination of parental rights is a decision of drastic significance which requires deliberate scrutiny and caution. [Cit.] ... On review of such a decision, the standard is whether after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. [Cit.]” In the Interest of J. L. Y., supra at 255 (1). Using that standard, we find the evidence in this case sufficient to support the termination order. See In the Interest of C. M., 194 Ga.. App. 503, 504 (1) (391 SE2d 26) (1990).

Judgment affirmed.

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


text:
    A90A1864.
    LITTLE v. MIDDLETON et al.
    (401 SE2d 751)
   Carley, Judge.

Appellee-defendants entered into a written agreement to provide legal representation to appellant-plaintiff “for the purpose of investigation and bringing suit against BETTY GIVENS CHAPMAN for certain damages and injuries sustained by [appellant] on July 2, 1986 as a result of BETTY GIVENS CHAPMAN running into the rear of the automobile ... in which [appellant] was a passenger. . . .” Eventually, appellant agreed to settle her tort claim for the full $25,000 policy limits of Chapman’s automobile liability insurance coverage and, in connection with this settlement, she signed a written release of “Susan Y. Chapman and Betty Chapman, their heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, . . . from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 2nd day of July, 1986 at or near [a stated location. Appellant] hereby declares that the terms of this settlement and the foregoing notice have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.” (Emphasis supplied.)

When appellant’s own insurer thereafter based its refusal to pay her claim for uninsured motorist (UM) benefits upon her execution of the release, she brought this legal malpractice action against appellees. Appellant’s complaint alleged, in material part, that appellees’ “acts and omissions ... in failing to obtain and review [her] own automobile insurance policy, ... to inform and advise [her] of the potential effect of the general release upon her anticipated claims for UM benefits, ... to file suit and obtain a judgment, ... to obtain the consent of the UM insurance carriers to any settlement, and . . . to preserve [her] ability to properly present her UM claim, all constituted the performance of legal services in a manner far below the standard of skill, care and diligence normally possessed and utilized by other attorneys who represent clients in personal injury cases under the same or similar circumstances.”

After discovery, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellees and denied appellant’s motion. Appellant appeals from the trial court’s order on the cross-motions for summary judgment.

1. The trial court did not indicate the reason for its grant of summary judgment in favor of appellees. However, appellees’ motion relied exclusively upon the holding of Berman v. Rubin, 138 Ga. App. 849, 855 (227 SE2d 802) (1976): “[W]hen the document’s meaning is plain, obvious, and requires no legal explanation, and the client is well educated, laboring under no disability, and has had the opportunity to read what he signed, no action for professional malpractice based on counsel’s alleged misrepresentation of the document will lie.” Appellant urges that Berman is distinguishable and that reliance upon its holding in granting summary judgment in favor of appellees was, therefore, erroneous.

The decision in Berman assumed the attorney’s negligence but nevertheless held that there could be no recovery since the client must read what he signs and becomes bound thereby. However, “Berman itself recognized . . . that its holding was a limited one and that the court’s ‘decision should not be read to state or imply that an attorney may not be held responsible for his negligent draftsmanship whenever the client can or does read the document. Indeed, where the document requires substantive or procedural knowledge, is ambiguous, or is of uncertain application, the attorney may well be liable for negligence, notwithstanding the fact that his client read what was drafted. . . .’ [Cits.] ... As Berman was explained and exemplified in McWhorter, Ltd. [v. Irvin], 154 Ga. App. 89 [(267 SE2d 630) (1980)], that decision was perhaps among those rare cases in which the questions of negligence and proximate cause could be removed from the jury.” Kushner v. McLarty, 165 Ga. App. 400, 402 (1) (300 SE2d 531) (1983). Accordingly, the issue to be decided is whether, assuming appellees’ negligence, “the meaning and legal effect of the disputed portions of the agreement in the instant case are[, as a matter of law, as] . . . obvious as in Berman.” Kushner v. McLarty, supra at 402 (1).

The attorney’s alleged negligence in Berman related only to a factual issue. Despite the fact that the agreement that the client read and signed clearly and unambiguously provided that he had a specific financial obligation to each of his children and to his wife, he maintained that the extent of his financial obligations had been misrepresented to him by his attorney. Unlike Berman, the alleged negligence attributed to appellees in the instant case does not relate so much to a factual issue as it does to the legal effect of the release that appellant signed. Appellant maintains that appellees were negligent in their representation because the release inured to the benefit of her UM carrier. There are perhaps few areas of Georgia law in which legal expertise and precision are more crucial than in the negotiation and execution of releases. See generally Posey v. Medical Center-West, 257 Ga. 55 (354 SE2d 417) (1987); Williams v. Physicians &c. Hosp., 249 Ga. 588 (292 SE2d 705) (1982). Unlike the agreement in Berman, the document that was signed by appellant did not specify the release of her UM carrier and, if it does serve to release that otherwise unnamed carrier, it is solely because of the legal effect of the general wording that was employed therein. Under these circumstances, it cannot be said that, as a matter of law, the legal effect of the release did not pose “to appellant a legal technicality that [she] was unequipped to appreciate as a non-lawyer.” Kushner v. McLarty, supra at 403 (1). “Reasonable minds could disagree as to whether [the release] in the instant case did require a legal knowledge or explanation to become clear to a layman . . . and whether the attorney’s [failure to inform appellant fully] as to the [purported] effect of [the release] constituted the proximate cause of appellant’s injury. [Cit.] As these were factual questions proper for jury resolution, we cannot hold as a matter of law, that the appellant’s failure to detect the [purported] legal defects in [the release] was the proximate cause of [her] injury.” Kushner v. McLarty, supra at 403 (1). Compare De La Maria v. Powell, Goldstein, Frazer & Murphy, 612 FSupp. 1507, 1517-1518 (N.D. Ga. 1985).

Decided January 14, 1991

Rehearing denied January 31, 1991

Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, David N. Lefkowitz, for appellant.

Arnall, Golden & Gregory, Karen B. Bragman, Jeffrey M. Smith, Frank N. White, for appellees.

2. Appellees’ further contention that their motion for summary judgment was properly granted because, pursuant to the terms of the retainer agreement, they undertook to represent appellant only as to her claim against Chapman and not as to her claim for UM benefits is without merit. Appellees contracted to investigate and to bring suit against Chapman. Appellant’s own UM coverage was a potential source of satisfaction of any recovery by her against Chapman. A determination of the potential sources of satisfaction in a given case may require, and indeed often does require, the professional services of an attorney. A layman, even though aware of his tort remedy, may not have the requisite legal knowledge as to his contractual rights and thus may be unable to appreciate the full range of the possible adverse consequences of executing a general settlement agreement with the tortfeasor. In the instant case, appellant’s expert has averred that the applicable standard of care required that appellees inquire into and then pursue alternate sources of satisfaction of appellant’s potential recovery against Chapman, specifically appellant’s entitlement to UM benefits, and that appellees’ failure to do so was legal malpractice. The essence of appellees’ contention is that the terms of their retainer agreement relieve them from liability for that alleged negligence. An attorney may not relieve himself by contract of the duty to exercise reasonable care and an attempt to do so is void as against public policy. See Emory Univ. v. Porubiansky, 248 Ga. 391, 394 (282 SE2d 903) (1981).

3. As previously noted, “[Reasonable minds could disagree as to whether [the release] in the instant case did require a legal knowledge or explanation to become clear to a layman . . . and whether the attorney’s [failure to inform appellant fully] as to the effect of [the release] constituted the proximate cause of appellant’s injury. [Cit.]” Kushner v. McLarty, supra at 403 (1). It follows that the trial court erroneously granted summary judgment in favor of appellees but correctly denied appellant’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge.

text:
    A90A1993.
    GUERRERO v. THE STATE.
    (401 SE2d 749)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of trafficking in cocaine. Following the imposition of sentence, defendant moved for a new trial. The new trial motion was denied and defendant appeals. Held:

1. Defendant enumerates error upon the denial of a motion to suppress evidence. In this connection, he argues that (1) the investigatory stop of the vehicle driven by defendant was unreasonably pretextual and that (2) the search of the vehicle exceeded the scope of defendant’s consent.

The arresting officer testified that he observed defendant “weaving” three times as he was traveling north on the interstate highway and that he stopped defendant to see if he was “tired.” In this regard, the officer testified that some policemen stop drivers who weave two times; but that it is his practice to permit a weaving driver to continue driving unless he weaves three times. The officer acknowledged that prior to stopping defendant he observed a temporary Florida license tag on defendant’s vehicle.

The officer asked defendant if he was tired. Defendant responded that he was and added that he was not familiar with power steering. Thereupon, the officer told defendant that he was going to issue him a written warning.

The officer testified that most drivers are nervous when they are stopped by the police; but once they realize why they are stopped, most drivers regain their composure. Even after being told that he would only be given a written warning, however, defendant remained extremely nervous. Believing that something was amiss, the officer asked defendant for permission to “look inside” the vehicle. Defendant orally granted the officer permission.

In a compartment in the rear of the vehicle, the officer discovered a large white bag. Looking in the bag, the officer found two smaller bags containing cocaine. At that point, defendant was placed under arrest for violating the Georgia Controlled Substances Act.

“ ‘[I]n determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.’ [Cit.]” Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63). We have no hesitation in concluding that a reasonable officer would have stopped defendant after observing him weave three times on the interstate highway. The trial court did not err in denying the motion to suppress on the ground that the stop was unreasonably pretextual.

Defendant contends the search of the vehicle exceeded the scope of consent since the officer only asked for permission to “look inside” the vehicle, not to search for contraband. “The question of whether or not a defendant freely consented to a search is determined by reference to the totality of the circumstances. . . . Moreover, in reviewing the denial of a motion to suppress, ‘this court can consider all relevant evidence introduced at a pretrial hearing, an appropriate post-trial hearing, or at trial.’ [Cits.]” Bruce v. State, 191 Ga. App. 580, 581 (2) (382 SE2d 367).

At trial, defendant testified that he purchased the vehicle less than 48 hours before he was stopped; that he never looked in the back compartment of the vehicle; and that, therefore, when the officer “asked, could I search the car? I said, no problem; fine, you know, I didn’t have anything to hide.”

In view of defendant’s trial testimony, it cannot be said that the search of the vehicle exceeded the scope of defendant’s consent. Compare Bruce v. State, 191 Ga. App. 580, 581 (2), supra, with State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195). The trial court did not err in denying the motion to suppress on the ground that defendant did not consent to a full search of the vehicle.

2. The indictment charged that defendant did “knowingly possess more than 400 grams of cocaine, a controlled substance, in violation of the Georgia Controlled Substances Act. . . .” Relying upon Steele v. State, 154 Ga. App. 59 (267 SE2d 500), defendant contends his conviction must be reversed because the indictment failed to allege an essential element of the crime, to wit: the possession of “any mixture with a purity of 10 percent or more of cocaine. . . .” We disagree. Trafficking in cocaine can be committed by a person who possesses 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine. See OCGA § 16-13-31 (a) (1). The indictment sufficiently charged defendant with trafficking in cocaine by possessing more than 400 grams of cocaine (28 grams of cocaine being the minimum amount required to constitute the offense of trafficking in cocaine). The evidence in the case sub judice disclosed that the amount was 523 grams of cocaine of 80 percent purity. See generally Nichols v. State, 186 Ga. App. 314, 317 (367 SE2d 266).

3. Defendant contends the trial court erred in failing to give a requested charge on the law of equal access. This contention is without merit. Taken as a whole, the trial court’s charge adequately covered the principles set forth in the requested charge. See Estep v. State, 181 Ga. App. 842, 843 (2), 844 (353 SE2d 913).

Judgment affirmed.

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

Decided January 8, 1991

Rehearing denied January 31, 1991

Sonya J. Calhoun, for appellant.

Edward D. Lukemire, District Attorney, Robert E. Turner, Assistant District Attorney, for appellee.


text:
    A90A0061.
    FUSSELL et al. v. JONES et al.
    (401 SE2d 593)
   Sognier, Chief Judge.

John W. and Irby Lou Fussell brought suit against Carl E. Jones, Winterchase Townhomes, Inc., Carlsgate Properties, Inc., and Carl E. Jones Development, Inc., alleging claims for fraud, negligent construction, and breach of warranty arising from their purchase of a newly constructed townhouse. The trial court granted Jones’ motion for summary judgment on all claims, granted the defendants’ motion for summary judgment against Irby Lou Fussell on the ground she was not a proper party plaintiff, and denied the Fussells’ summary judgment motion. Appeal is taken from the rulings affecting John Fussell.

On February 5, 1985, appellant, as purchaser, entered into a contract with Winterchase Townhomes, Inc. (“Winterchase”), as seller, and Carlsgate Properties, Inc. (“Carlsgate”), as broker, for the purchase of a townhome under construction by Carl E. Jones Development, Inc. (“Jones Development”). At all material times Carl Jones was president of Winterchase, Carlsgate, and Jones Development, and he signed the sales contract in his capacity as president of Winterchase. After the sale was concluded and appellant and his wife took possession of the property, they made several demands on Winterchase for correction of certain construction defects. When Winterchase failed to complete the repairs to their satisfaction, appellant made a demand for rescission of the contract, which was refused, and then filed this action against Jones, Winterchase, Carlsgate, and Jones Development.

1. Appellant first enumerates as error the trial court’s acceptance of Jones’ argument that he was not individually liable for any of the claims. Appellant contends a material fact question remains regarding whether Jones participated in commission of tortious acts by the corporate defendants.

“The mere operation of corporate business does not render [a corporate officer] personally liable for corporate acts. [Cit.]” Earnest v. Merck, 183 Ga. App. 271, 273 (358 SE2d 661) (1987). A corporate officer “who takes part in the commission of a tort by the corporation is personally liable therefor, but an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein [or if he disregarded the corporate form so as to authorize piercing of the corporate veil].” (Citations and punctuation omitted.) Smith v. Hawks, 182 Ga. App. 379, 385 (355 SE2d 669) (1987).

It is undisputed that Jones executed the sales contract in his capacity as president of Winterchase. Although appellant alleges in his amended complaint that Jones made oral misrepresentations in his individual capacity, Jones testified by affidavit that during his dealings with appellant and his wife he “acted strictly and entirely in [his] representative capacity as an officer and authorized agent of the several corporations,” and that he never disregarded these corporate entities. Further, in his affidavit Jones specifically denied having participated in any fraudulent acts or having made any fraudulent misrepresentations. Appellant presented no evidence to rebut or controvert this testimony. There is no evidence in the record that Jones personally committed or specifically directed the commission of any tortious acts. See id. Accordingly, Jones having pierced appellant’s allegations against him and appellant having failed to present any rebuttal evidence raising a genuine issue of material fact concerning his personal liability, we hold the trial court properly granted summary judgment to Jones. See Buice Grading &c. v. Bales, 187 Ga. App. 263, 265 (370 SE2d 26) (1988).

2. In his remaining enumerations appellant contends the trial court erred by denying summary judgment to him against all defendants on the issues of liability for negligent construction and fraud. We do not agree. Since we have upheld the grant of summary judgment to Jones, these enumerations are moot as to him. With regard to Winterchase, Carlsgate, and Jones Development, the evidence presented by appellant and his wife in support of their motion for summary judgment consisted of appellant’s affidavit testimony concerning the presence of certain defects in the townhouse and the testimony of four expert witnesses stating their opinions that certain aspects of the construction were defective and not in accordance with applicable building codes. In response, appellees presented the testimony of Jones that the townhouse had been built in a good and workmanlike manner in accordance with industry standards and building codes. The conflicting testimony of appellant and Jones raises questions of material fact. Regardless of whether Jones’ testimony was offered as expert testimony, these factual disputes cannot be overcome on summary judgment by the opinion testimony of appellant’s experts because opinion evidence can never be the basis for the grant of summary judgment in favor of a plaintiff even when, as here, the claim is one requiring the presentation of expert testimony by the plaintiff as a prerequisite to recovery. See Howard v. Walker, 242 Ga. 406, 407 (249 SE2d 45) (1978). Accordingly, we find the trial court properly denied appellant’s motion for summary judgment.

Decided January 31, 1991.

Anthony Kirkland, for appellants.

Steve F. Carley, for appellees.

Judgment affirmed.

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


text:
    A90A1568.
    SKALAR/SEAMARK, INC. v. SKALAR USA, INC.
    (401 SE2d 595)
   Pope, Judge.

Skalar USA, Inc., entered into a written agreement with Skalar/ Seamark, Inc. (“Seamark”) whereby Seamark was granted the exclusive right to market Skalar’s products in the United States. On December 19, 1989, Skalar notified Seamark of its intention to terminate the contract on March 30, 1990. When a controversy arose between the two parties concerning whether Skalar had a right under the contract to terminate, Seamark filed a complaint against Skalar for breach of contract and a motion for a temporary restraining order. Three days later, on February 19, 1990, Skalar filed an action for declaratory judgment and injunctive relief requesting the court to declare it had a right to terminate the contract and to enjoin Seamark from further use of Skalar’s name. The declaratory judgment action was served on Seamark’s agent on February 20, 1990.

Skalar also filed a motion for preliminary injunction and a hearing date for the motion was set for March 6. The record shows the trial court combined thé two cases for a hearing on Skalar’s motion for preliminary injunction and Seamark’s motion for temporary restraining order. After the hearing the trial court issued a final order in the declaratory judgment case finding Skalar had a right to terminate the contract and granting judgment to Skalar. We agree that the trial court violated OCGA § 9-4-5 by treating the hearing on the preliminary motions as a trial on the substance of the declaratory judgment complaint and ordering final judgment in the action. According to that statute, a declaratory judgment action may not be tried earlier than 20 days after service is perfected unless the parties consent in writing to an earlier trial date. In this case, the hearing on the preliminary motions was held only 14 days after service of the declaratory judgment action and no consent to early trial is contained in the record.

Decided January 31, 1991.

Webb, Fowler & Tanner, Anthony O. L. Powell, for appellant.

Davidson & Fuller, Stephen P. Fuller, for appellee.

1. We disagree with Skalar’s argument that the issues to be decided in the preliminary motions were identical to those at issue in the declaratory judgment action so that Seamark is estopped to further contest the issues. The motion for temporary restraining order filed in Seamark’s related breach of contract claim is not in the record on appeal and thus we have no record of the issues presented by that motion. However, the motion for preliminary injunction filed in Skalar’s declaratory judgment action relates only to the issue of whether Seamark should be enjoined from using Skalar’s trade name until the final adjudication of the case. To rule on this motion it was unnecessary to adjudicate the merits of the declaratory judgment action. The issue raised in Skalar’s motion does not require a finding of whether Skalar rightly or wrongly terminated the contract because the contract contains a clause requiring Seamark to cease using Skalar’s name immediately upon termination regardless of whether termination is justified and regardless of any claim by Seamark for wrongful termination or breach.

We also reject Skalar’s argument that the declaratory judgment action it brought is moot and the judgment entered in the action is not appealable because it presents identical issues to those raised in the related claim for breach of contract filed by Seamark. Although the trial court could have dismissed the declaratory judgment action on the ground that the issues raised were determinable in a pending action between the same parties (see Fortson v. Kiser, 188 Ga. App. 660 (373 SE2d 842) (1988)), it was not required to do so. See OCGA § 9-4-2 (c).

2. We reverse the trial court’s order holding that the agreement could be terminated without cause because, as indicated in Division 1, a separate trial on the merits of the declaratory judgment action must be held.

Judgment reversed.

Beasley and Andrews, JJ., concur.


text:
    A90A1581.
    MAYS v. THE STATE.
    (401 SE2d 597)
   Pope, Judge.

Defendant James Edward Mays was tried and convicted of two counts of armed robbery for the hold-up of two convenience stores on the evening of May 21, 1989. We affirm.

1. Defendant argues he was entitled to directed verdict of acquittal in regard to one of the counts because the evidence was insufficient to show he committed the crime by use of an offensive weapon. No pistol was found on defendant or in the automobile from which he fled before he was arrested. Instead, a toy gun was found on the floor of the car. Although the store clerk who was the victim of the crime testified it was her first impression that the gun defendant brandished was not real, she was not positive. The offense of armed robbery is committed “by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). We hold the evidence created an issue for the jury to determine whether defendant was guilty under the armed robbery statute.

2. Defendant was tried jointly with his accomplice and argues the trial court erred in denying his motion to sever. “The defendant seeking severance must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” Murphy v. State, 246 Ga. 626, 629 (2) (273 SE2d 2) (1980). Defendant and his co-defendant shared the same last name and were both black males, but the record shows the two men and the evidence relating to each was carefully distinguished throughout the trial.

Neither was the defendant denied due process by the admission of the co-defendant’s confession. The trial court properly instructed the jury that the confession could be considered only in connection with the case against the co-defendant and not the case against defendant. During the reading of the written confession the word “blank” was substituted for all references to the confessor’s accomplice. The editing process adequately protected defendant’s constitutional rights. See Depree v. State, 246 Ga. 240 (1) (271 SE2d 155) (1980); Brooks v. State, 169 Ga. App. 543 (5) (314 SE2d 115) (1984); Brown v. State, 164 Ga. App. 505 (2) (296 SE2d 215) (1982). The trial court did not err in denying defendant’s motion to sever.

3. Finally, defendant challenges the sufficiency of the evidence. The victims did not identify defendant as the robber because both men who robbed the two stores were wearing stocking masks. However, the evidence shows the suspects for the robberies were travelling in an old model, light colored automobile. An automobile which matched the description was spotted immediately after the second robbery was reported and when a police officer commenced to chase the vehicle the driver took evasive action. When the automobile finally stopped and the officer pulled up beside it he observed the defendant exit the passenger side and run toward a nearby shopping center. Defendant was apprehended under an automobile in a nearby grocery store parking lot.

Decided January 31, 1991.

Culuerhouse & Deems, Daniel R. Deems, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Upon searching the defendant, officers discovered bills, wadded up in defendant’s pants, in the denominations stolen from the two stores. A toy gun was found in the floor of the passenger side of the automobile. At both stores, the victims heard one of the robbers call the other “James.” The circumstantial evidence against defendant was sufficient to enable a rational trier of fact to find defendant guilty of both counts of armed robbery beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A90A1667.
    BANGS v. THE STATE.
    (401 SE2d 599)
   Carley, Judge.

Although appellant was indicted for murder, he was tried before a jury and found guilty of voluntary manslaughter. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The trial court’s giving of a charge on mutual combat is enumerated as error.

“ ‘Mutual combat. . . generally involves deadly weapons and the mutual intention of using them. [Cit.]’ [Cit.] A mutual combat situation arises when ‘both parties are at fault and are willing to fight because of a sudden quarrel.’ [Cit.] The mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties. [Cits.]” Simmons v. State, 172 Ga. App. 695, 696 (1) (324 SE2d 546) (1984). The evidence in the instant case showed that appellant and the victim exchanged words in a bar. According to appellant, he believed that he had offended the victim. When the victim left the bar, appellant immediately followed and approached the victim. A struggle ensued, during which appellant was cut with a knife and the victim was shot with appellant’s gun. “ ‘It is well established that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. (Cit.)’ [Cit.] The evidence necessary to justify a jury charge need only be enough to enable one to carry on a legitimate process of reasoning. [Cits.] While it is true that mutual combat and self-defense are mutually exclusive by definition, where there is evidence of both the jury, as trier of fact, must select between the two propositions. [Cits.]” Simmons v. State, supra at 696 (1). “Hence, it was not error to give these charges.” Shy v. State, 190 Ga. App. 370, 372 (5) (378 SE2d 920) (1989).

2. The trial court’s refusal to give appellant’s requested charge on involuntary manslaughter is enumerated as error.

At trial, appellant relied upon the theory of accidental discharge of his gun while defending himself against the victim. Contrary to appellant’s contention, his testimony that the weapon was accidentally discharged during the struggle “did not require a charge on unlawful act-involuntary manslaughter. [Cit.]” Buie v. State, 254 Ga. 167, 168 (2) (326 SE2d 458) (1985). See also Bright v. State, 191 Ga. App. 655, 658 (7) (382 SE2d 426) (1989). Under the evidence, appellant either shot the victim intentionally — in which case he was either guilty of murder or voluntary manslaughter or not guilty by reason of lawful self-defense — or he shot the victim unintentionally while acting in lawful self-defense — in which case he was not guilty of any criminal homicide by reason of accident. There is no evidence that appellant unintentionally shot the victim by commission of an unlawful act other than a felony so as to be guilty of involuntary manslaughter under OCGA § 16-5-3 (a). “The case of Kerbo v. State, 230 Ga. 241 (196 SE2d 424) (1973), relied on by [appellant], ... is inapplicable here because in Kerbo there was evidence that the defendant had[, without any claim of legal justification,] intentionally pointed the pistol at the deceased. . . .” (Emphasis supplied.) Raines v. State, 247 Ga. 504, 507 (fn. 4) (277 SE2d 47) (1981).

Appellant further urges that, having charged the jury on self-defense, the trial court should also have given a requested instruction on involuntary manslaughter in the performance of a lawful act in an unlawful manner, that is, self-defense with excessive force through use of a gun. This contention has been rejected by the Supreme Court. “The appellant argues that the use of excessive force in self-defense constitutes the commission of a ‘lawful act in an unlawful manner,’ within the meaning of [OCGA] § 16-5-3 (b), thereby authorizing the jury to have convicted the appellant of involuntary manslaughter under the foregoing statutory provision. We disagree.” (Emphasis supplied.) Pullin v. State, 257 Ga. 815, 817 (4) (364 SE2d 848) (1988). “[T]he use of [any deadly implement] negates any argument that the death occurred during the commission of a lawful act in an unlawful manner because if it is self-defense it is no crime at all, and if it is not self-defense it is reckless conduct, which is a crime rather than a lawful act. . . . [S]ince the court charged the jury as to self-defense and accident, the court’s refusal to charge involuntary manslaughter was not error.” (Emphasis supplied.) Willis v. State, 258 Ga. 477-478 (1) (371 SE2d 376) (1988). It follows that any decision of this court which is inconsistent with this controlling Supreme Court authority will not be followed and is hereby overruled. A representative but non-inclusive list of such overruled cases includes the following: Jackson v. State, 143 Ga. App. 734, 736 (3) (240 SE2d 180) (1977); Spradlin v. State, 151 Ga. App. 585 (1) (260 SE2d 517) (1979); Hodge v. State, 153 Ga. App. 553 (265 SE2d 878) (1980); Mullins v. State, 157 Ga. App. 204, 205 (1) (276 SE2d 877) (1981); Benford v. State, 158 Ga. App. 43 (279 SE2d 236) (1981); Neal v. State, 160 Ga. App. 498 (4) (287 SE2d 399) (1981); Billings v. State, 161 Ga. App. 500, 502 (4) (288 SE2d 622) (1982).

Decided January 31, 1991

David L. Roberts, for appellant.

Douglas C. Pullen, District Attorney, J. Gray Conger, Edward F. Berry, Assistant District Attorneys, for appellee.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur.


author: Beasley, Judge.

text:
    A90A1683.
    PEACOCK v. STRICKLAND.
    (401 SE2d 601)
   Beasley, Judge.

Plaintiff Peacock appeals from a jury verdict for defendant Strickland. Plaintiff had sought recovery for damages she sustained as a result of an automobile collision with a vehicle driven by Strickland.

1. She contends that because defendant pleaded guilty to the criminal charge of failing to yield the right-of-way, a verdict in her favor on the issue of liability was demanded. She relies upon Glenn v. Hutcheson, 194 Ga. App. 12 (389 SE2d 523) (1990), which held: “By pleading guilty to the charge of vehicular homicide in addition to the charge of driving too fast for conditions, the appellee admitted not merely that he had been driving in a negligent manner at the time of the accident but also that this negligence had been the proximate cause of the decedent’s death.” That decision is physical precedent only. The court contrasted its decision with other cases in which the guilty plea did not have such a conclusive effect. See Martini v. Nixon, 185 Ga. App. 328 (1) (364 SE2d 49) (1987); Williams v. Calhoun, 175 Ga. App. 332, 334 (333 SE2d 408) (1985); Thompson v. Hill, 143 Ga. App. 272, 275 (3) (238 SE2d 271) (1977).

Those latter cases control here. Although a guilty plea is an admission against interest and prima facie evidence of the facts admitted, State Farm &c. Ins. Co. v. Godfrey, 120 Ga. App. 560, 563 (171 SE2d 735) (1969), “it is not conclusive that defendant was negligent as it is only a circumstance to be considered along with the other evidence in the civil action for damages.” Roesler v. Etheridge, 125 Ga. App. 358, 359 (1) (187 SE2d 572) (1972). See also Williams v. Calhoun, supra, cited by appellant but leaving the issue of proximate cause to a jury despite a failure-to-yield guilty plea. Strickland’s guilty plea did not establish as a matter of law that he was negligent. The issue of liability was correctly submitted to the factfinder.

Decided January 31, 1991.

David S. Walker, Jr., for appellant.

Dennis, Corry, Porter, Thornton & McGlamry, William E. Gray II, Grant B. Smith, for appellee.

2. The trial court excluded evidence of plaintiff’s hardships stemming from injuries suffered in the collision. Any error that might have occurred was harmless because the jury found for defendant. The exclusion of evidence which is relevant only to the measure of damages is not a ground for reversal where the jury rejected plaintiff’s contentions of liability. Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 314 (4) (271 SE2d 227) (1980); Foy v. Edwards, 118 Ga. App. 665, 667 (3) (165 SE2d 176) (1968). See cases cited in Maloy v. Dixon, 127 Ga. App. 151, 156 (193 SE2d 19) (fn. 2) (1972).

Judgment affirmed.

Pope and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A90A1694.
    GOODEN et al. v. GEORGIA BAPTIST HOSPITAL & MEDICAL CENTER.
    (401 SE2d 602)
   Cooper, Judge.

This case involves a medical malpractice complaint against appellee as a result of the death of appellants’ child at birth. Appellants’ original complaint was dismissed for want of prosecution, and the second action filed by appellants was voluntarily dismissed by appellants while appellee’s motion for summary judgment was under consideration by the trial court. Several months before the dismissal of the second complaint, the statute of limitation on appellants’ cause of action expired. Within six months of the dismissal of the second complaint, appellants filed a third complaint pursuant to the renewal provisions of OCGA § 9-2-61 (a). Appellants allege that they filed the requisite expert’s affidavit under OCGA § 9-11-9.1 along with the third complaint, although there is evidence in the record to indicate that the two affidavits filed may not have been filed until several days after the complaint was filed. In any event, the affidavits that were in fact filed were not originals, but were photocopies, and no original, signed affidavits have been filed in connection with any of the complaints. Further, although the affidavits recite, refer to and rely on, certain medical records to be attached as exhibits, no such exhibits have ever been provided to the court. The trial court granted appellee’s motions to strike the affidavits and to dismiss appellants’ complaint, and from this order, appellants appeal.

1. Appellants first enumerate that the court erred in granting the motion to strike the affidavits. Specifically, appellants argue that the court erred in applying the rationale of Smith v. Feliciano, 187 Ga. App. 86 (369 SE2d 346) (1988) to the instant case. In Smith, the court, while considering a motion for summary judgment, ruled that affidavits which relied on material not contained in the record did not set forth admissible facts and must be disregarded. Appellants argue that by relying on Smith the trial court was considering the sufficiency of the affidavits as on a motion for summary judgment, rather than determining whether the complaint was properly filed pursuant to OCGA § 9-11-9.1. “[W]hen the Legislature enacted OCGA § 9-11-9.1, it established ‘an “exception to the general liberality of pleading permitted under (the Civil Practice Act, OCGA § 9-11-1 et seq.),” by requiring when a malpractice suit is instituted that along with the complaint an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant.’ [Cit.]” Brake v. Mintz, 193 Ga. App. 662, 666 (388 SE2d 715) (1989). The statute also requires that the affidavit set forth the factual basis for the claim of each negligent act. OCGA § 9-11-9.1 (a). In 0-1 Drs. &c. Co. v. Moore, 190 Ga. App. 286 (1) (378 SE2d 708) (1989), we held that OCGA § 9-11-9.1 did not incorporate the evidentiary standards applicable to evidence supporting a motion for summary judgment, and we refused to disregard an affidavit that failed to set forth the standard of care' required to withstand a summary judgment motion supported by an opposing affidavit. However, the court in Moore specified that the affidavit at issue attached as exhibits all the material referenced and relied upon by the affiant. Further, although the Moore court did not specify that the affidavit involved was an original, the court did state that it was properly signed and notarized, thereby leading us to conclude that an original was in fact filed.

As stated by the trial court, even though appellants were on notice of the problems with their affidavits from the motions filed in connection with the first two complaints, they nevertheless filed identical affidavits with the third complaint. No originals were filed and despite the clear reference to attached exhibits of the medical records in the affidavits, no exhibits were ever filed. We determine that these defects, which appear on the face of the affidavits, bear directly on the determination of whether the requirements of OCGA § 9-11-9.1 were satisfied; the trial court was not required to consider the sufficiency of the affidavits or their evidentiary content to make such determination. Considering the obvious defects in the affidavits submitted by appellants and the prior notice to appellants, the trial court did not err in striking the affidavits. Although Smith, supra, involved a summary judgment motion, we find that the trial court did not err in relying on the reasoning therein with respect to defective affidavits to grant the motion to strike.

Decided January 31, 1991.

Repasky & Bates, Alexander J. Repasky, Fred R. White, for appellants.

Duvall, McCumber & Doverspike, Thomas 0. Duvall, Jr., Jerry D. McCumber, S. David McLean, Jr., for appellee.

2. Appellant next contends that the court erred in granting appellee’s motion to dismiss the complaint. OCGA § 9-11-9.1 (f) states: “If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” We have already determined that the affidavits filed with the complaint are defective and should have been stricken. We therefore agree with the trial court’s determination that, considering the prior notice to appellants of the defects in the affidavits, the appellants did not have the requisite expert affidavit at the time of filing the renewed complaint. Further, there is no evidence in the record to indicate that the failure to file a satisfactory affidavit was the result of a mistake. The affidavit appended to appellants’ brief is not properly a part of the record and we will not consider it. See Georgia Power Co. v. Redman, 137 Ga. App. 427 (4) (224 SE2d 477) (1976). The trial court did not err in granting the motion to dismiss appellants’ complaint.

Judgment affirmed.

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


text:
    A89A1802.
    EASON v. THE STATE.
    (402 SE2d 555)
    Decided January 31, 1991.

      Larsen & Larsen, William W. Larsen, Jr., Celia Larsen, for appellant.

      James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.
   Carley, Judge.

This court, relying upon Dye v. State, 177 Ga. App. 813, 815 (3) (341 SE2d 469) (1986) affirmed the judgment of conviction. Eason v. State, 194 Ga. App. 678 (391 SE2d 427) (1990). On certiorari, the Supreme Court of Georgia overruled Dye v. State, supra, and reversed the judgment of this court. Accordingly, our original judgment of affirmance in the instant case is hereby vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt is, therefore, reversed.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur.


text:
    A90A1831.
    ANDERSON et al. v. SANFORD et al.
    (401 SE2d 604)
   Cooper, Judge.

We granted this interlocutory appeal to consider whether OCGA § 19-7-3 (c) bars the filing of a petition for visitation rights by grandparents who have, in the same year, intervened in a deprivation proceeding brought by the Department of Family & Children Services.

Appellant Staci Anderson is the natural mother of two minor children, Megan and Justin, and appellant Kenneth Anderson is her husband and the natural father of Justin. Appellees are the maternal grandparents of both children. On August 21, 1989, a caseworker with the Department of Family & Children Services (“Department”) filed a petition of deprivation alleging that Megan had been abused and was being taken into custody pursuant to OCGA § 15-11-17 (a) (4). On August 23, 1989, appellees filed a motion to intervene in the deprivation proceedings, and the trial court granted their motion. On August 28, 1989, the juvenile court entered a detention order placing temporary legal custody of the child with the Department. On November 14, 1989, after legal custody of Megan had been returned to appellants, appellees filed a petition for grandparents’ visitation rights, seeking reasonable visitation rights with both of the minor children. Appellants filed a motion to dismiss appellees’ petition for visitation on the ground that the petition was barred because it was filed within one year of the motion to intervene in the deprivation proceedings brought by the Department on behalf of Megan. On April 19, 1990, the trial court entered a temporary order granting appellees reasonable visitation with Megan. The trial court subsequently denied appellants’ motion to reconsider their motion to dismiss appellees’ petition for visitation and this appeal followed.

Decided January 31, 1991.

Lane, Tucker & Crowe, Robert L. Crowe, for appellants.

OCGA § 19-7-3 (b) provides: “Any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child. . . .” Subsection (c) of that Code section provides that “[a]n original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child.” (Emphasis supplied.) Appellants contend that the trial court erred in denying their motion to dismiss appellees’ petition for visitation because the deprivation proceeding was “another custody action” within the meaning of OCGA § 19-7-3 (c). We disagree with appellants. A deprivation proceeding is to determine whether the child is a deprived child. OCGA § 15-11-33 (a). If the child is found to be deprived, the court is authorized to allow the child to remain with his parents, or other custodian, or transfer temporary legal custody to another individual or agency. OCGA § 15-11-34 (a). Although the juvenile court is authorized to determine who will exercise custody over a “deprived” child, the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters concerning the child. We agree with appellants that the General Assembly, by the enactment of OCGA § 19-7-3 (c) has sought to limit the number of original actions for visitation which grandparents may file. However, in the case sub judice, there has been no previous adjudication of appellees’ right to visitation; nor have appellees brought any other action seeking visitation with their grandchildren. We do not find that their intervention in a proceeding to determine deprivation bars their subsequent petition for visitation rights. Accordingly, we find no error in the trial court’s denial of appellants’ motion to dismiss.

Judgment affirmed.

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

Stein & Cauthen, James E. Stein, for appellees.


text:
    A90A1832.
    TOWNSEND v. THE STATE.
    (401 SE2d 629)
    Decided January 31, 1991.

      Jeffrey S. Bowman, for appellant.

      Michael C. Eubanks, District Attorney, G. Barksdale Boyd, Richard E. Thomas, Assistant District Attorneys, for appellee.
   Cooper, Judge.

Appellant was convicted on July 19, 1989, and on December 2, 1989, he filed, pro se, a motion for out-of-time appeal. On February 14, 1990, the trial court entered an order which granted appellant’s motion for out-of-time appeal, allowed him until March 15, 1990, to file a motion for new trial and/or a notice of appeal and appointed new counsel to represent him. Appellate counsel filed a direct appeal to this court, the sole enumeration of error being that appellant was denied effective assistance of counsel in violation of the Georgia Constitution and the United States Constitution.

Appellant did not raise the issue of ineffective counsel in his motion for out-of-time appeal; nor did his appointed appellate counsel raise the issue in the trial court before bringing the present appeal. “[The] Supreme Court has declined to address the merits of an ineffectiveness claim where the issue was raised neither in the defendant’s original request for an out-of-time appeal nor in the trial court after the request had been granted. Bell v. State, 259 Ga. 272 (381 SE2d 514). [Cit.]” Willis v. State, 193 Ga. App. 135 (3) (387 SE2d 7) (1989). We find this case to be controlled by Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989), and hold that appellant has waived the right to raise the ineffectiveness claim.

Judgment affirmed.

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


text:
    A90A1918, A90A1919.
    STEVENS v. McCARTY et al.; and vice versa.
    (401 SE2d 605)
   Cooper, Judge.

This case arises out of the appellees’ purchase of a cosmetology business from the Wons, who had previously purchased the business from appellant. Appellant was also a party to the contract of purchase by appellees from the Wons. On November 9, 1989, appellees brought an action against appellant for an alleged breach of the contract and against a longtime associate of appellant for tortious interference with contract. Appellant’s associate was subsequently dismissed from the lawsuit and is not a party to this appeal.

Following the filing of the complaint, the parties entered into settlement negotiations, and appellees granted two 30-day extensions of time to file an answer to facilitate those negotiations. On January 24, 1990, appellees’ attorney sent a letter to appellant’s attorney confirming settlement of the lawsuit and outlining the agreement reached. The letter provided in part: “My clients will vacate the premises . . . on February 1, 1990. On said date Mr. Stevens will take over the business. All good will, supplies and fixtures will become his sole and exclusive property. He will assume all liability as to the business. All exclusive rights to the leasehold will be transferred to him, as well as any liability thereon.” Appellees’ attorney indicated in the letter that she would draft an agreement reflecting the settlement. Appellant’s attorney did not respond to the letter, and on or about January 26, 1990, appellees’ attorney sent a settlement agreement and release to appellant’s attorney. On February 9, 1990, appellant’s attorney telephoned appellees’ attorney and informed her that appellant would not sign the agreement. Appellees filed a motion to enforce the settlement agreement, and the main appeal follows the trial court’s grant of that motion. Appellees’ purported cross-appeal seeks only to address the merit of appellant’s appeal.

1. In six enumerations of error, appellant alleges that the trial court erred in enforcing the settlement agreement. Appellant contends that he did not know that there were past due amounts owed by appellees under the lease for the premises; that he believed all the lease payments were current; that it was only his intention to assume all future liabilities of appellees and relieve them of their obligations under the promissory note and security agreement executed in favor of the Wons; and that after discovering the pást due rent, he decided not to sign the agreement. The trial court found that on February 5 and 6, 1990, the attorneys for both parties talked by telephone regarding the agreement, and during the conversation, appellant’s attorney asked about the status of accounts payable for such items as supplies but no inquiry was made by appellant’s attorney about whether any payments were due under the lease agreement. The trial court found that the letter dated January 24, 1990, was clear and unambiguous and that the words “any liability thereon” encompassed past as well as future liability under the lease agreement. “Agreements made by an attorney pertaining to his client’s cause of action are binding upon the client, absent fraud, collusion, or express prohibition of such an agreement. [Cits.]” White v. Owens, 172 Ga. App. 373, 374 (323 SE2d 167) (1984). The letter of January 24, 1990, concluded by advising appellant’s attorney that if the terms of the settlement were contrary to his understanding, he should contact appellees’ attorney immediately. “ ‘Where one under a duty to speak fails to do so, he is thereafter estopped to deny what his silence imports.’ [Cit.]” Cheek v. J. Allen Couch &c. Funeral Home, 125 Ga. App. 438,- 447 (7) (187 SE2d 907) (1972). “Ordinarily, for an attorney to bind his client to a settlement agreement where there is a dispute as to terms, the agreement must be in writing. [Cit.]” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (2) (308 SE2d 544) (1983). “The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.” Id. at 676. Appellant does not argue that his attorney did not have authority to enter into the agreement or that a settlement agreement was not reached. Rather, his argument amounts to an acknowledgment that he did not understand that he was agreeing to be liable for any past due liability on the property. We agree with the trial court that the language in the letter of January 24, 1990, was clear and unambiguous, and we conclude that appellant’s misunderstanding about the meaning of that language provides no basis for refusing to enforce an agreement which his attorney had authority to enter into. See Davis v. Davis, 245 Ga. 233 (2) (264 SE2d 177) (1980). Accordingly, we find each of appellant’s six enumerations of error to be without merit.

Decided January 31, 1991.

Robert J. Calcagno, for appellant. Joyce D. Colmar, for appellees.

2. In Case No. A90A1919, appellees/cross-appellants’ two enumerations of error are that the appeal was filed only for delay and that the appeal was frivolous and appellant/cross-appellee should be assessed penalties. OCGA § 5-6-38 allows an appellee to institute a cross-appeal and present for adjudication all errors or rulings adversely affecting him. Inasmuch as appellees’ cross-appeal does not enumerate any error in the trial court’s order adversely affecting them, it is dismissed. However, we will consider appellee’s cross-appeal as a request for an assessment of penalties pursuant to OCGA § 5-6-6 and deny the same. See Nabisco Brands v. Huggins, 190 Ga. App. 664 (3) (379 SE2d 630) (1989).

Judgment affirmed in Case No. A90A1918. Appeal dismissed in Case No. A90A1919.

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


author: Birdsong, Presiding Judge.

text:
    A90A1929.
    CHERRY v. THE STATE.
    (401 SE2d 607)
   Birdsong, Presiding Judge.

Anthony Wayne Cherry was convicted of three counts of armed robbery, four counts of possession of a firearm, one count of attempted armed robbery and one count of theft by receiving stolen property in another state, all arising from the armed robbery of a Winn-Dixie store in Colquitt County and his subsequent apprehension in the identified getaway vehicle which had been stolen in Madison, Florida.

On appeal, Cherry contends only that the evidence was insufficient to support a guilty verdict as to the count of receiving stolen property in another state, because there was no evidence he knew or should have known the vehicle was stolen. See OCGA § 16-8-8. Cherry maintained that he wound up in possession of the automobile after another individual picked him up hitchhiking, and that this other individual abandoned the vehicle to him after the robbery of the Winn-Dixie; that he did not know it was stolen and there was no evidence connecting Cherry with the theft of the vehicle. Held:

Reviewing the evidence in the light most favorable to the verdict, we find there is ample evidence from which a rational trier of fact could find proof of appellant’s guilt of receiving property stolen in another state, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Rios v. State, 193 Ga. App. 485, 486 (388 SE2d 527).

The evidence showed the car, a 1979 Ford LTD, was stolen from its owner in Madison, Florida; appellant was originally from Madison, Florida, and had been in Madison just prior to coming to Georgia. He testified he offered to pay the man driving the car to drive him to Madison, and he gave a Madison, Florida, address to law enforcement officers. The testimony concerning the robbery is relevant to the charge for receiving the vehicle stolen in another state; a Winn-Dixie employee testified he saw a man leave the store and get into the 1979 Ford LTD, and wrote down the tag number. He saw only one man leave in the car. Robbery victims identified appellant as the man who robbed them. In this light of the evidence, the jury could conclude there was no other individual in the car at least as of the time of the Winn-Dixie robbery, but this does not, as appellant inarticulately suggests, require an either/or conclusion that appellant either stole the vehicle himself (i.e., that he did not “receive” it) or that appellant’s version of events is true (i.e., that the vehicle was abandoned to him after the other individual robbed the Winn-Dixie). Particularly since appellant gave yet another contradictory version at trial as to how he came to be in the stolen vehicle, the evidence is such that the jury could conclude beyond a reasonable doubt that in any case, and under all the circumstances, appellant knew or should have known the vehicle was stolen. As appellant points out, while unexplained possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge, it will not, standing alone, authorize a conviction. Higginbotham v. State, 124 Ga. App. 489 (184 SE2d 231). The jury could find that appellant’s recent possession was unexplained and, in the midst of the other incriminating circumstances, including the criminal act of armed robbery which was connected directly to appellant and to the car, the jury could infer guilty knowledge that the car was stolen, beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided January 31, 1991.

Short & Fowler, Larkin M. Fowler, Jr., for appellant.

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

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1933.
    PRICE v. THE STATE.
    (401 SE2d 609)
   Cooper, Judge.

Appellant raises the general grounds in this appeal from the judgment of conviction and sentence entered on the jury’s verdict of guilty of the offense of possession of cocaine with the intent to distribute.

The facts as adduced at trial reveal that a police officer observed appellant’s truck during the early morning hours in an intersection with the flashers on and the engine running. At first, the officer did not observe anyone in the vehicle but upon looking into the driver’s window, the officer saw appellant lying on his side across the seat of the truck. The officer spoke to appellant, turned off the engine and got appellant out of the truck. Upon talking to appellant, the officer noticed a strong odor of alcohol and the slurred speech and unsteadiness of appellant. The officer placed appellant under arrest, took appellant back to the patrol car and radioed to a back-up unit. The officer then returned to the truck to look for intoxicants and was able to glance into the truck “for a second” before the two back-up officers arrived. Appellant went to the station with one back-up officer, and the other back-up officer stayed to inventory the truck. The arresting officer went back to the station in his car, but before he arrived, Smith, the officer who was taking the inventory of the truck, radioed him to return to the scene. Smith had discovered approximately 17 grams of cocaine packaged in ten clear plastic bags wrapped in a paper towel in the seat of the truck. The arresting officer testified that when he glanced into the truck for just a second, he did not see the paper towel in the seat. Smith testified that the paper towel was in clear view on the seat of the truck. Appellant testified at trial and denied any knowledge of the cocaine. Appellant stated that he had given some strangers a ride in his truck the previous evening and that he did not notice anything in the seat of his truck when they got out.

Decided January 31, 1991.

Knight & Marlowe, Johnny W. Knight, Terry J. Marlowe, for appellant.

Britt R. Priddy, District Attorney, for appellee.

“ Tn passing upon the general grounds, this court reviews not the weight but the sufficiency of the evidence to support the verdict. . . . So long as there is “any evidence” to support the jury’s verdict, it will not be disturbed on appeal. [Cit.]”’ Zackery v. State, 194 Ga. App. 434 (2) (391 SE2d 15) (1990). Appellant contends that the standard for basing a verdict upon circumstantial evidence was not met in the instant case. “ ‘ “To 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.” [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. [Cits.]’” Groom v. State, 187 Ga. App. 398 (2) (370 SE2d 643) (1988). We have reviewed the transcript in a light most favorable to the verdict. Appellant does not even propose a reasonable hypothesis of what occurred; we will not change thé jury’s determination. There is “ ‘ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that [appellant] was guilty of the [offense] charged.’ Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Zackery, supra at 434.

Judgment affirmed.

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


text:
    A90A1967.
    BEASLEY v. THE STATE.
    (401 SE2d 610)
   Beasley, Judge.

Kenneth Beasley’s conviction of two counts of sale of cocaine, challenged only with respect to the court’s failure to give one of his requested charges, is affirmed.

The evidence showed that a special task force comprised of the GBI and local law enforcement agencies was investigating the sale of crack cocaine in southeastern Georgia. The Wagon Wheel Club in Claxton was under surveillance. On May 12, 1989, appellant approached the vehicles of undercover agents when they were in the vicinity of the Wagon Wheel, and they purchased crack cocaine from him on several occasions during the course of that day. A local police officer observed appellant selling what appeared to be drugs to people in passing vehicles throughout the day.

The jury charge which appellant sought was a cautionary instruction that the jury should not be influenced by public opinion or the attitude of the public in rendering its verdict. He relied on McTyier v. State, 91 Ga. 254, 255, 258 (6) (18 SE 140) (1892), which merely held that it was not error to give such a charge.

During voir dire examination, defense counsel informed prospective jurors that he wanted to question them concerning “the news coverage of the events. I know that Mr. Beasley was on television on the Operation Crackdown film that came out on the news. Did any of you see that film? Did you see Mr. Beasley on TV? If you did, would you please raise your hand.” The transcript records that approximately one-half of the prospective jurors raised their hands. Neither evidence nor argument concerning publicity or media coverage relating to Operation Crackdown was otherwise introduced or presented at trial. Nor is it shown whether any of those who raised their hands actually served on the trial jury.

It is a “fixed rule” that the determination of whether a cautionary instruction is to be given “generally address [es itself] to the sound discretion of the trial judge.” Emory Univ. v. Lee, 97 Ga. App. 680, 698 (4) (104 SE2d 234) (1958).

“Where nothing in the record indicates that any improper circumstance was injected into the case, and the charge of the court fully and accurately instructed the jury on the issues involved, a new trial will not be granted because of the refusal of the court to give a cautionary request. . . .” Johnson v. State, 128 Ga. 102 (2) (57 SE 353) (1907); Emory Univ. v. Lee, supra.

“Though it may be proper to give a cautionary instruction in an appropriate case, the judge is not bound to do so. ... A prophylactic instruction has no tendency to elucidate the issue; it only sounds a note of warning that the jury must not be influenced in their deliberations because of the character of the particular crime, or the bias of popular opinion, or because of other foreign and extraneous matters.” Johnson v. State, supra, 104-105 (2).

Decided January 31, 1991.

Hal T. Peel, for appellant.

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

The trial court did not abuse its discretion.

In addition, appellant complains that various statements made by the prosecutor in closing argument to the jury entitled him to the charge. These statements were either responsive to remarks made by defense counsel in closing argument, or constituted comments on the evidence or reasonable deductions therefrom. See Perry v. State, 191 Ga. App. 589, 590-591 (2) (382 SE2d 402) (1989); Conner v. State, 251 Ga. 113, 122-123 (6) (303 SE2d 266) (1983). What the law condemns is the injection of extraneous and prejudical matters which have no basis in the evidence. Robinson v. State, 257 Ga. 194, 196 (4) (357 SE2d 74) (1987). That did not occur.

Judgment affirmed.

Pope and Andrews, JJ., concur.


text:
    A90A1978.
    SOUDER v. WEBB et al.
    (401 SE2d 630)
   Cooper, Judge.

Appellant appeals an order of the trial court dismissing his case and assessing attorney fees against him pursuant to OCGA § 9-15-14. Appellant is an inmate who filed suit in forma pauperis pursuant to 42 USCA § 1983, asserting a violation of his constitutional rights against cruel and unusual punishment. Appellant contended that the alleged constitutional violations occurred on three separate occasions several years ago when he was required to (1) stand up on a bus en route to a work detail, (2) wear tennis shoes on a work detail and (3) wear rubber boots on a work detail which resulted in injury to his toenail. Appellant sought $250,000 in damages. Appellant has previously raised these exact issues in federal court where they were dismissed as legally frivolous under 28 USCA § 1915 (d). The trial court concluded, as did the federal court, that appellant’s claims were frivolous and further determined that there existed a complete absence of any justiciable issue of law and fact and that the lawsuit was brought to harass appellees. Consequently, $108 in costs and $150 in attorney fees were assessed against appellant. For the reasons stated below, we affirm.

Decided January 31, 1991.

Harold Souder, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, John C. Jones, Senior Assistant Attorneys General, for appellees.

Pursuant to Brown v. Diaz, 184 Ga. App. 409 (3) (361 SE2d 490) (1987), appellant’s federal cause of action brought in forma pauperis under 42 USCA § 1983 is controlled by federal law. “Under 28 USCA § 1915 (d), a trial court may dismiss a case if it is ‘satisfied that the action is frivolous or malicious.’ ” Id. Upon a review of the record and a consideration of the types of violations asserted by appellant, “we are in agreement with the trial court that appellant’s claim of injury was insufficient to amount to a constitutional deprivation and was properly dismissed as frivolous.” Id. See Harris v. Menendez, 817 F2d 737 (11th Cir. 1987).

We also agree with the trial court’s decision to assess attorney fees against appellant under OCGA § 9-15-14. A federal court had already determined these issues to be frivolous. The record supports the court’s determinations that there was no justiciable issue of law and fact and that the suit was brought to harass appellees. Despite appellant’s indigent status, the award was proper. Newsome v. Graham, 254 Ga. 711, 712 (334 SE2d 183) (1985).

Judgment affirmed.

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