author: Andrews, Judge.

text:
    A94A1480, A94A1481.
    COBB COUNTY SCHOOL DISTRICT v. MAT FACTORY, INC. et al. (two cases).
    (452 SE2d 140)
   Andrews, Judge.

Cobb County School District (CCSD), plaintiff below, appeals from the grant of summary judgment to defendants MAT Factory, Inc., its president Maloney, and Leisure Lines, Inc. in Case No. A94A1480 and from the grant of attorney fees and expenses under OCGA § 9-15-14 to the defendants in Case No. A94A1481. They are considered together.

Case No. A94A1480

1. CCSD alleged breach of contract, fraud, and breach of warranties against Leisure Lines, Inc., MAT Factory, Inc., and Maloney, MAT’s president. Summary judgment was granted to all defendants on all claims.

“To prevail at summary judgment under OCGA § 9-11-56 (c), the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewing the evidence, it was that, on June 6, 1991, CCSD and Leisure Lines, Inc. signed a contract obligating Leisure Lines to complete a playground resurfacing of Blackwell Elementary School, for which CCSD would pay $24,990.

Article 6 of the AIA Agreement used for this contract provides that “The contract documents, which constitute the entire agreement between the [parties], are enumerated. . . .” In addition to the agreement and general conditions, the contract documents included “Specifications for Project No. 90/2040/1244, dated March 20, 1991.” The only specifications which were produced during discovery by CCSD were for the Blackwell Elementary School Playground Surfacing and bore the correct number, but were dated January 30, 1991. All parties below and here considered these the operative specifications. Subsection 02540 was headed “Playground Surfacing (Fibar System or Equal)” and provided that the bidder would provide “all materials . . . necessary for complete installation of the Fibar System as patented and licensed for production by Robert Godfrey, Ltd., ... or wood carpet by Zeager Bros. Inc, ... or equal.” The two specified products were playground coverings composed of wood fiber or chips. The specifications also required that the bidder “certify that the surface depth shown meets U. S. Consumer Products Safety Commission Technical Guidelines for surfacing as follows: Recommendations — when tested in accordance with suggested test methods of the U. S. Consumer Products Safety Commission’s Technical Guidelines for Surfacing, paragraph 12.3, a surface should not impact a peak acceleration in excess of 200 Gs to an instrumented ANSI head form dropped on the surface from a maximum estimated fall height.” Under the “Building Code and Permits” section 01061, it identifies ASTM and ANSI.

Leisure Lines contacted MAT, a distributor of a plastic-type product called “Safety Deck” which was manufactured in New Zealand by Versatile Plastic Recyclers. Frank Ferris Company imported the product into the United States and MAT was one of its sub-distributors. MAT provided the product to Leisure Lines, whose personnel installed the product on the project. It is not disputed that, with the knowledge and consent of CCSD, Leisure Lines installed the Safety Deck provided by MAT on the Blackwell project and that this installation was accepted by CCSD.

Thereafter, on July 15, 1991, the CCSD Director of Planning sent a memo to the Director of Support Services. To it he attached a copy of “ASTM Designation F 1292-91,” the standard specification for impact attenuation of surface systems for playground equipment. The memo further attached a copy of June 18, 1990 test results on Safety Deck performed by Schefsky of Northwest Laboratories. The test had been conducted on a volleyball court in California and stated that impact attenuation was measured “in accordance with the proposed ASTM Standard F8-52.” Copies of this test and other MAT promotional literature on the product had been provided to CCSD by Leisure Lines on November 9, 1990 for consideration in deciding which playground covering to purchase for CCSD schools. This was months before the first contract to provide any coverings had been signed by Leisure Lines and CCSD.

The July 15, 1991 memo states that “[b]ecause these test results were conducted in 1990, the ‘Test Description’ states that the ‘Safety Deck’ material was tested and measured in accordance with the ‘proposed ASTM Standard F8-52.’ By copy of this ... I am requesting that [Leisure Lines] furnish me with updated test results in compliance with the ASTM Designation F 1292-91. If the Safety Deck material has not been tested with this new ASTM, I recommend that no further purchases of this material be made until the test results are received.” (Emphasis supplied.)

Leisure Lines forwarded the memo to MAT for response. In response, on July 23, 1991, Maloney, as president of MAT, wrote to the Director of the Planning Department acknowledging receipt of the memo and stating “[i]n way of clarification, F8-52, that is referred to in the . . . Report is actually the ASTM name for the committee that proposed the ASTM specification designation F1292-91, (see footnote #1, page 1 of the specifications). The tests that were performed under the F8-52 proposed standards are in fact in compliance with the standard specification carrying the permanent designation of F1292-91. I trust this answers your questions.”

This contact by Maloney with CCSD is the premise for the warranty and fraud claims against MAT and Maloney. After receiving this letter, on August 8, 1991, the Director of Planning sent a memo to the Director of Support Services referring to Maloney’s letter stating that “the tests performed is [sic] in fact in compliance with the . . . ASTM spec.” He withdrew any opposition to making additional purchases of Safetytred. The evidence is unrefuted that, in fact, the designation F8-52 was the committee designation and was used for the proposed standard, which, when finalized, was designated F129291. The only difference in the two was the inclusion in the proposal of temperature requirements for in-laboratory testing, not site testing as done here.

On December 3, 1991, a letter contract was issued by CCSD to Leisure Lines pursuant to which Leisure Lines would, for $194,415, “provide ‘Safetytred’ playground surfacing for nine schools [in addition to Blackwell Elementary School], in accordance with your proposal dated October 16, 1991. . . . [T]his letter will constitute an Order for supplying the materials in the amounts . . . below, all subject to the terms and conditions set forth hereinafter.” Other than the designation “Safetytred,” there are no performance specifications included or alluded to in this contract document. The final paragraph provided that, upon delivery and signing of a receipt for the materials by CCSD, Leisure Lines was to “grant title of this material” to CCSD. The order was accepted by Leisure Lines on January 6, 1992. Installation was to be done by CCSD employees.

For this contract, Leisure Lines initially placed an order with MAT on January 6, 1992, but later cancelled it on January 17 and purchased “Gras-gard” from Pawling Corporation of New York instead. MAT’s delivery was going to take 60 days because the product would have to be shipped by Versatile from New Zealand. Because CCSD insisted on 30-day delivery, Leisure Lines cancelled MAT’s order and placed it with Pawling, who shipped the Gras-Gard from its New York warehouse to CCSD’s warehouse on February 18, 1992. The delivery was accepted by CCSD and nothing was heard by Leisure Lines until September 24, 1992 when Leisure Lines received a letter from the attorney for CCSD indicating the product was “nonconforming” and stating it was no longer wanted. On September 11, 1992, CCSD had Schefsky of Northwest Laboratories conduct a drop test on the Blackwell Elementary School installation of Safety Deck.

2. The crux of CCSD’s fraud and warranty contentions is found by comparing the 1990 test results provided by MAT to Leisure Lines and then to CCSD and the test results of the 1992 test on the Blackwell site, conducted by the same person at the request of CCSD. The 1990 California report reflected a “safe fall” height of 7.45 feet on the first test and 8.5 feet on the second test. The 1992 Georgia report shows averages of from four to six feet.

While both reports reflect on their face what is without question correct information on the raw data of the tests, including the condition of the underlying ground, CCSD contends it was somehow misled by the safe fall height, apparently based on the following statement contained in a flyer prepared by MAT from the 1990 test information: “Safety Deck’s high test results (safe fall from almost 9 feet!) gives the children, their concerned parents, private schools and cities, the assurance that risks are minimized.” Even assuming, for purposes of summary judgment, that the information was somehow deficient, this does not give CCSD a cause of action for fraud, breach of contract, or breach of warranty.

(a) “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. [Cit.] For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989).

We consider only the element of justifiable reliance and, so doing, CCSD’s “claim tumbles like a house of cards.”

Here, the test results were available to all parties involved in the transaction before either contract was signed. CCSD was free to repeat the test where and when it chose, if it so desired, pursuant to any standard it chose, including setting a required safe fall height. It did nothing until 1992, after having entered into the two contracts. “The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations. Under the circumstances in the case at bar, the trial court did not err in concluding as a matter of law that plaintiffs failed to exercise proper diligence in protecting themselves from defendants’ alleged fraudulent concealment.” (Citations and punctuation omitted.) Miller v. Clabby, 178 Ga. App. 821, 823 (344 SE2d 751) (1986) (alleged concealment of land’s location in flood plain). See, e.g., Copeland v. Home Savings &c., 209 Ga. App. 173, 174 (433 SE2d 327) (1993) (alleged misrepresentation of land’s flood hazard status); Condon v. Kunse, 208 Ga. App. 856 (432 SE2d 266) (1993) (plaintiffs failed to have fescue grass tested on cattle farm before purchase, grass infected with fungus).

CCSD having failed to show justifiable reliance, the grant of summary judgment to defendants on the fraud claims was appropriate.

(b) As to the breach of contract claim made against Leisure Lines, the first contract was prepared by CCSD, using an AIA form agreement.

That document contains an “entire agreement” clause. GRO Assoc. v. Kerr, 208 Ga. App. 313, 315 (2) (430 SE2d 647) (1993); Great American Bldrs. v. Howard, 207 Ga. App. 236, 239 (1) (427 SE2d 588) (1993) ; Rucker v. Wynn, 212 Ga. App. 69, 71 (2) (441 SE2d 417) (1994) . Therefore, since the contract documents contain no reference to the 1990 California test, CCSD may not rely upon those test results for any fraud in the inducement claim. Id.

Further, .a review of the contract documents does not reveal any mandatory safe fall height which any ground covering had to meet in order to comply with the contract terms. Therefore, having supplied and installed a mutually agreed upon product, Safetytred, as an “equal” to Fibar, the specified product, Leisure Lines fully complied with the first contract.

Likewise, the second contract specified Safetytred, which was delivered by Leisure Lines to CCSD and accepted. CCSD has made no factual showing, in face of the evidence produced by defendants, that Gras-gard was not in fact Pawling’s trade name for Safetytred. This second contract contains no performance specifications and, upon delivery to CCSD’s warehouse, Leisure Lines had fully performed.

The grant of summary judgment to Leisure Lines on the breach of contract claim was proper.

(c) The remaining claims were premised on breach of warranty by Leisure Lines and MAT.

As far as Maloney individually is concerned, there was nothing to indicate that he, in preparing the letter concerning the ASTM numbering system, acted as anything other than the president of his corporation. Therefore, no individual liability was possible. Caton v. Haynes, 260 Ga. 204, 205 (391 SE2d 107) (1990).

Regarding MAT and express and implied warranties of merchantability, OCGA §§ 11-2-314 and 11-2-315, ‘“[a]s this warranty clearly arises out of a contract of sale of goods, it can only run to a buyer who is in privity of contract with the seller. (Cit.)’ [Cit.] . . . ‘(I)f a defendant is not the seller to the plaintiff-purchaser, the plaintiff as the ultimate purchaser cannot recover on the implied or express warranty, if any, arising out of the prior sale by the defendant to the original purchaser, such as distributor or retailer from whom plaintiff purchased the product. (Cit.)’ (Punctuation omitted.) [Cit.] There being no privity between appellee [MAT] and appellant, the trial court’s grant of summary judgment was proper.” Lamb v. Ga.-Pacific, 194 Ga. App. 848, 850 (4) (392 SE2d 307) (1990).

Even assuming, without deciding, that there was some breach of express or implied warranty by Leisure Lines regarding the performance of Safetytred under the claimed performance criteria of the first contract, there is no contention that there was any notice by CCSD of this claimed deficiency until September 1992, after installation at the Blackwell site in June 1991 and the signing of the second contract in December 1991 and shipment of the goods.

“OCGA § 11-2-714 (1) states: ‘Where the buyer has accepted goods and given notification (subsection (3) of Code Section 11-2-607) he may recover . . . damages for . . . the seller’s breach. . . .’ OCGA § 11-2-607 (3) requires a buyer who has accepted goods to notify the seller within a reasonable time after he discovered or should have discovered any breach, or be barred from any remedy. A buyer ‘accepts’ goods when, after having had a reasonable opportunity to inspect them, he fails to make an effective rejection. OCGA § 11-2-606 (1) (b). ‘Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.’ OCGA § 11-2-602 (1).” Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga. App. 306, 307-308 (2) (358 SE2d 884) (1987); Intl. Multifoods Corp. v. Nat. Egg Prods. &c., 202 Ga. App. 263, 266 (4) (414 SE2d 253) (1991). We have no trouble concluding, as apparently did the trial court, that rejection here did not occur within a reasonable time. Id.

Therefore, the grant of summary judgment to Leisure Lines was correct.

3. We direct the trial court to assess a penalty of $500 upon receipt of the remittitur in the trial court in accordance with Court of Appeals Rule 26 (b).

Case No. A94A1481

4. In this case, CCSD appeals from the trial court’s orders granting defendants’ motions for imposition of attorney fees and expenses.

MAT and Maloney’s motion for fees and expenses sought recovery of over $32,522.23 in attorney fees and $3,198.45 in expenses. The court awarded $5,000 in fees and expenses against CCSD and its attorneys pursuant to OCGA § 9-15-14 (b).

“Subsection (b) . . . provides that ‘the court may assess reasonable and necessary attorney’s fees and expenses of litigation ... if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. ... As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.’ Claims asserted pursuant to . . . subsection ...(b) are to be adjudicated by the trial court without a jury. [Cits.] The standard of review . . . for motions under OCGA § 9-15-14 (b) is the ‘abuse of discretion’ rule. [Cit.]” Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 778 (3) (406 SE2d 121) (1991).

Decided November 28, 1994

Reconsideration denied December 19, 1994

Brock & Clay, D. Glenn Brock, E. Linwood Gunn IV, Richard W. Calhoun, for appellant.

Dennis, Corry, Porter & Gray, William E. Gray II, Stephanie F. Goff, Steven H. Ballard, for appellees.

Here, because, as discussed in Divisions 1 through 3, supra, there was no cognizable claim against Maloney or MAT, and because there was sufficient proof before the court of the amount of fees and expenses, we cannot say that the court abused its discretion in awarding MAT and Maloney the $5,000 in fees and expenses. Campbell v. Bausch, 195 Ga. App. 791, 792 (2) (395 SE2d 267) (1990).

5. As to Leisure Lines, however, the record provides no factual basis for the amount or reasonableness of the attorney fees or expenses incurred in defending the suit, although there is a sufficient finding that the suit pursued against it was substantially groundless. Therefore, the award of fees and expenses to Leisure Lines is vacated and the case remanded for consideration of the amount of fees and expenses incurred. Duncan v. Cropsey, 210 Ga. App. 814, 816 (2) (437 SE2d 787) (1993).

Judgment affirmed in Case No. A94A1480.

Beasley, P. J., and Johnson, J., concur. Judgment affirmed in part and reversed in part in Case No. A94A1481. Beasley, P. J., and Johnson, J., concur.

       ASTM is the American Society for Testing and Materials and ANSI is the American National Standards Institute.

       “Safetytred” was the name given to the product by Versatile. MAT registered that name as well as “Safety Deck” with the patent and trademark office for marketing purposes. It is the same product.

       “Gras-gard” was the trade name under which Pawling marketed Safetytred, apparently without the knowledge of Ferris, the California importer of Safetytred.

       The California site had “natural bermuda grass growing through it. . . . The depth of the grasses above the safety deck was approximately two inches. The court was in a very wet condition because it had recently been irrigated. There was standing water just below the top surface of the grasses in some locations. The test data was taken from the driest portion of the court. Because the surface was wet the headform would penetrate deeper into the surface with each successive drop. Therefore, the impact velocity [used to compute safe fall height] could not be controlled with the same precision as normal. However, the impact velocities that were measured were accurate.” (Emphasis supplied.)
      In contrast, the Georgia Blackwell Elementary site was on red clay, and “[m]ost of the grass was completely worn away in those areas of the playground around the play equipment. These are the areas upon which a child would land when falling from the play equipment. The test was performed at the center of a bare pad adjacent to the high slide.”

       Even assuming the Safetytred could not be said, as a matter of law, to be “equal” to Fibar, it can be said, as a matter of law, that CCSD and Leisure Lines jointly departed from this contract term. See Cho v. South Atlanta Assoc., Ltd., 200 Ga. App. 737, 739 (2) (409 SE2d 674) (1991).

       This matter is properly considered without the necessity of an application under OCGA § 5-6-35 (a) (10). Haggard v. Bd. of Regents &c., 257 Ga. 524, 527 (4c) (360 SE2d 566) (1987).


source: Caselaw Access Project

author: McMurray, Presiding Judge. Smith, Judge,

license: Public Domain

text:
    A94A1501.
    WHITT v. THE STATE.
    (452 SE2d 125)
   McMurray, Presiding Judge.

Defendant was charged, along with co-defendant Veasey, with the offense of theft by shoplifting and with being a recidivist. The evidence adduced at a jury trial reveals the following:

During the afternoon of February 2, 1993, defendant and co-defendant Veasey entered a retail establishment known as “Linens ‘N Things,” seeking to exchange merchandise allegedly purchased at another “Linens ‘N Things” store. After defendant and co-defendant Veasey browsed the store for about 30 minutes, Assistant Manager Elizabeth Wilkes observed defendant holding two “black scarf valances” and she decided to offer assistance. However, as Ms. Wilkes approached defendant, he “moved very quickly down the aisle [and co-defendant] Veasey moved in front of [defendant] facing him.” Ms. Wilkes then observed defendant’s jacket “moving up” and noticed that defendant was no longer holding the “black scarf valances.” Defendant and co-defendant Veasey refused Ms. Wilkes’ offer of assistance and “walked a straight line up to the front register area. . . .” Ms. Wilkes did not see the “black scarf valances” in the area where defendant and co-defendant Veasey had been standing so she “followed them [and] watched their whole exchange transaction.”

Ms. Wilkes noted that neither defendant nor co-defendant Veasey presented the “black scarf valances” for exchange and observed “a noticeable bulge in the back of [defendant’s] jacket.” Sheila Mitchell, another store employee, also observed the unusual bulge so she surreptitiously brushed defendant’s back to investigate. Ms. Mitchell noticed that the bulge seemed to be something other than a part of defendant’s body and concluded that defendant may be concealing stolen merchandise.

After defendant and co-defendant Veasey left the store, a cashier at the “Linens ‘N Things” store contacted the police and reported the apparent crime. Later that afternoon, the police apprehended the defendant and co-defendant Veasey .in their get-away car and found two “black scarf valances” under a seat in the vehicle. In the meantime, Ms. Mitchell checked the store’s inventory records and confirmed that two “black scarf valances” were missing. The police summoned Ms. Mitchell to the scene (the roadside where defendant and co-defendant Veasey were apprehended) and she identified the suspects and the stolen merchandise.

The jury found defendant and co-defendant Veasey guilty of the crime charged. Defendant filed this appeal after the denial of his motion for new trial. Held:

1. Defendant contends in his first enumeration that the jury selection process was tainted because the jury panels heard the trial court instruct the sheriff to “ ‘bring the people up’ ” while he was in the courthouse jail and while his attorney was in the rest room. Defendant reasons that this utterance amounted to an improper reference to his incarceration at the time of trial. This argument is not supported by the record.

Defense counsel challenged the jury panels before a jury was sworn, alleging that an attorney (“Mr. Morgan”) informed him that the jury panels heard (while defense counsel was outside the courtroom) the trial judge instruct the sheriff “something to the effect that, well, tell the — the Deputy Sheriff needs to be told to bring the people up. ...” The trial court assured defense counsel that Mr. Morgan’s alleged report was inaccurate and invited defense counsel to proffer evidence to the contrary. Defense counsel stated that Mr. Morgan was not available, but informed the trial court that he would “hopefully preserve this and have Mr. Morgan file an affidavit when I appealed.” The trial judge later explained: “What I said to the jury was, the Sheriff informed me that it was going to be about fifteen to twenty minutes before we can begin. Let’s take a short recess. That’s what I said to the jury.”

“We have consistently warned counsel that this court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record. See Coweta Bonding Co. v. Carter, 230 Ga. 585 (1) (198 SE2d 281); Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438).” Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635). In the case sub judice, there is no evidence supporting defendant’s claim that the jury panels heard the trial court instruct the sheriff that “the Deputy Sheriff needs to be told to bring the people up. . . .” In fact, there is no evidence refuting the trial court’s assurance that such a directive was not uttered while defense counsel was outside the courtroom. However, defendant questions the trial court’s veracity in his brief on appeal, stating that defendant “is a little confused that the [trial] court would not acknowledge the truth [and that the] only reason [he] hasn’t any more support [for his contention] is that the trial court would not allow [him] to call [co-defendant] Veasey or [co-defendant Veasey’s trial attorney,] Mr. Koman[, at the hearing on his motion for new trial].”

We have examined the entire transcript of the hearing on defendant’s motion for new trial and find that defense counsel offered Mr. Roman’s testimony as proof of unrecorded events which allegedly transpired during closing argument. Defense counsel never offered the testimony of co-defendant Veasey or Mr. Roman in support of defendant’s claim that the trial court instructed the sheriff that “the Deputy Sheriff needs to be told to bring the people up. . . .” The only evidence offered supporting this allegation may be found in the following statement asserted by defense counsel at the hearing on defendant’s motion for new trial: “Okay. So we also contend that what happened was that co-defendant Veasey was brought up from the jail and my client[, defendant,] was erroneously or mistakenly left down at the jail and the Court made some reference to, that the Sheriff told me that it’s going to be fifteen to twenty minutes to bring the people up, and that based on talking with several attorneys and also another Defendant in the courtroom the prospective jurors could well have gotten the idea that my client was already incarcerated, which we contend detracted from his right to an impartial jury because if they knew that he was already incarcerated his presumption of innocence would be impaired.” However, the trial court then asked defense counsel for proof supporting his allegations (i.e., “Do you have affidavits from any of those attorneys to that effect?”) and defense counsel responded, “I do not have affidavits at this point.” These circumstances not only reveal that the trial court did not block defendant’s attempt to perfect the record with regard to events which transpired in the presence of the jury panels, they reveal that the trial court gave defense counsel ample opportunity to present evidence supporting his view that the trial court’s recollection is blurred. It appears that defense counsel simply could not (or would not) present evidence supporting defendant’s claim that the jury panels were tainted by the trial court’s directives while defense counsel was outside the courtroom. In any event, the decision of the trial judge as to unrecorded events which transpired at trial is final and is not subject to review. OCGA § 5-6-41 (g). Consequently, we are bound by the trial court’s recollection of events which transpired while defense counsel was outside the court. See Pahnke v. State, 203 Ga. App. 88 (416 SE2d 324). It is from this perspective that we find the trial court’s directive for a recess in response to the sheriff’s remark, “it was going to be about fifteen to twenty minutes before we can begin,” cannot reasonably be construed as a reference to defendant’s incarceration at the time of trial. Consequently, the argument raised in this portion of defendant’s first enumeration provides no basis for reversal.

2. Defendant urges in support of his first enumeration that the trial court erred in hearing another defendant’s plea of guilty in an unrelated case in the presence of the jury panels. This argument was raised and rejected in Williamson v. State, 194 Ga. App. 439 (390 SE2d 658). We follow Williamson and affirm the denial of defendant’s motion for new trial on this ground.

3. In his second enumeration, defendant contends the trial court erred in sustaining the State’s objection to defense counsel’s closing argument, alleging the trial court unduly restricted argument as to his sole defense. The State argues that this enumeration presents nothing for review since a transcript of closing argument is not included in the record.

“Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41. Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779); Shaw v. State, 201 Ga. App. 438, 439 (1) (411 SE2d 534).” Thomas v. State, 208 Ga. App. 367 (1) (430 SE2d 768). In the case sub judice, the closing argument was taken down by the court reporter, but defendant did not request transcription of the relevant portion of closing argument as is his right under OCGA § 5-6-41 (d). Defense counsel excuses this omission, explaining that he did not wish to be responsible for paying the court reporter.

“OCGA § 17-8-5 (a) requires the trial judge to ensure that the testimony in all felony trials is taken down. ‘In the event of a felony conviction, it is the duty of the state, at its own expense and through the agency of the presiding judge, to request the court reporter to transcribe the reported testimony. (Cit.)’ State v. Hart, 246 Ga. 212, 213 (271 SE2d 133) (1980). Pursuant to OCGA § 5-6-41 (d), preliminary motions [and all other proceedings which may be called into question on appeal] would be included in the proceedings subject to OCGA § 17-8-5 (a).” Ivory v. State, 199 Ga. App. 283, 284 (405 SE2d 90). “Under [the] circumstances [of the case sub judice, defendant’s] appointed counsel [would] have [therefore] been reimbursed by the county for the expense of the transcription of the [pertinent portion of his closing argument].” Miller v. State, 165 Ga. App. 487, 489 (3) (299 SE2d 174). Consequently, if defendant “had desired that the trial transcript accurately reflect what transpired concerning this matter, he could have made timely motion to the trial judge to cause a transcript of these matters to be prepared. OCGA § 5-6-41 (d).” Jones v. State, 185 Ga. App. 595 (1) (365 SE2d 153). Instead, defendant sought to perfect the record by filing a document entitled, “MOTION TO PERFECT RECORD,” offering the testimony of co-defendant Veasey’s attorney to establish what transpired during defense counsel’s closing argument. This motion offers no basis for reconstructing the trial transcript.

Outside testimony provides no material basis for reconstructing a transcript from recollection. The only means for reconstructing a transcript from recollection is via agreement of the parties or their counsel or independent recollection of the trial judge. OCGA § 5-6-41 (g). Further, OCGA § 5-6-41 “authorizes the submission of a transcript prepared from recollection only where the trial has not been reported or where, for some other reason, an actual transcript is not obtainable. The trial in [the] case [sub judice] was reported, and there is no indication that the reporter’s notes were unavailable for transcription.” Harrison v. Piedmont Hosp., 156 Ga. App. 150 (274 SE2d 72). Nonetheless, defendant (apparently) asserts that a transcript of the pertinent portion of closing argument is unnecessary because statements by the State’s attorney (at the motion for new trial hearing) regarding the basis of her objection to defense counsel’s closing argument provide sufficient basis for appellate review. We do not agree.

Appellate courts are guided by the record and cannot rely on extrajudicial statements contained in arguments of counsel. Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109); Butts v. State, 149 Ga. App. 492, 493 (3) (254 SE2d 719). Consequently, the issue raised in this enumeration is “ ‘deemed abandoned’ by the defendant’s failure to supplement the record by any of the methods approved under OCGA § 5-6-41 [(d) or (g)]. Ledesma [v. State, 251 Ga. 487, 490 (8) (306 SE2d 629)]; Zachary v. State, 245 Ga. 2 (262 SE2d 779) (1980).” Patterson v. State, 256 Ga. 740, 741 (2) (353 SE2d 338). See Peterson v. State, 204 Ga. App. 532, 534 (3) (419 SE2d 757).

4. In his third enumeration, defendant contends the trial court improperly commented on the evidence when he asked co-defendant Veasey’s trial attorney about the relevance of having a State’s witness draw a diagram of the victim’s store.

At trial, the attorney for co-defendant Veasey directed a State’s witness, Sheila Mitchell, to withdraw from the witness stand. As soon as the witness removed herself from the witness stand, the trial court directed co-defendant Veasey’s attorney to have the witness return to the stand. The following pertinent colloquy then ensued: “MR. ROMAN: Your Honor, may I ask the witness to herself draw the internal layout of the store [?] THE COURT: What’s the relevance? What difference does it make? MR. ROMAN: Your Honor, I believe on cross examination we will show that at least with respect to [co-defendant] Veasey that the witness did not see and could not have seen him involved in shoplifting. THE COURT: You’re contending to the jury that some diagram of a store is going to prove a witness can’t see what a witness has testified under oath a witness saw? Is that what you’re trying to do? [DEFENDANT’S ATTORNEY]: Your Honor, I’m going to object to that as a comment on the evidence. THE COURT: I’m asking the relevance of it. You can have a seat. MR. ROMAN: Your Honor, on direct the witness I believe said in answer to a question, how was the store laid out. She said it had two aisles and that she herself was working mostly at the front counter that afternoon. THE COURT: You may ask any question you want to about that. She used no drawings and no demonstrations in her testimony. You may question her about it.”

“ ‘The statutory inhibition (OCGA § 17-8-55) against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. (Cits.)’ Mathis v. State, 171 Ga. App. 620 (1) (320 SE2d 861) (1984).” Emanuel v. State, 195 Ga. App. 302, 304 (3) (393 SE2d 74), rev’d on other grounds at 260 Ga. 425 (396 SE2d 225). In the case sub judice, we cannot say that the trial court’s comments during the colloquy with co-defendant Veasey’s attorney amounted to an improper comment on the evidence. OCGA § 17-8-57. See Jennette v. State, 197 Ga. App. 580, 584 (7) (398 SE2d 734). This contention provides no basis for overturning the trial court’s order denying defendant’s motion for new trial.

5. Defendant further contends in his third enumeration that the trial court improperly expressed its opinion as to evidence on two other occasions during trial. However, defendant concedes that no objections or motions for a mistrial were asserted when these purportedly harmful comments were uttered. Consequently, these contentions provide no basis for review. Keller v. State, 208 Ga. App. 589 (431 SE2d 411).

6. Defendant next contends the trial court erred in denying his motion for new trial, arguing that the evidence is insufficient to support the jury’s verdict. We do not agree.

“OCGA § 16-8-14 provides: ‘(a) A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment. . . .’” Maddox v. State, 210 Ga. App. 526, 527 (3) (436 SE2d 730). In the case sub judice, the testimony of Elizabeth Wilkes and Sheila Mitchell authorized the jury’s finding that defendant is guilty, beyond a reasonable doubt, of theft by shoplifting in violation of OCGA § 16-8-14 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Maddox v. State, 210 Ga. App. 526, 527 (3), supra.

7. In his fifth enumeration, defendant contends the trial court erred in denying his “MOTION TO PERFECT THE RECORD.” This enumeration is without merit. As stated in Division 3 of this opinion, defendant’s “MOTION TO PERFECT RECORD” was not a proper vehicle for perfecting the record pursuant to OCGA § 5-6-41. Consequently, the trial court did not err in denying defendant’s “MOTION TO PERFECT RECORD.”

8. In his final enumeration, defendant contends “[t]he trial court erred by denying [his] ‘Motion to Supplement the Record for Appeal’ and [his] ‘Motion to Transport Co-Defendant [Veasey] to Court,’ and by not affording [him] a full and fair hearing on these motions.”

“ ‘Harm as well as error must be shown to warrant a reversal. See Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991).’ Bass v. State, 208 Ga. App. 859, 861 (3) (432 SE2d 602).” Mobley v. State, 211 Ga. App. 709, 710 (3) (441 SE2d 73). In the case sub judice, defendant fails to show how the alleged errors asserted in this enumeration were harmful. Further, we find nothing in this enumeration which provides a basis for reversal.

Judgment affirmed.

Birdsong, P. J., Andrews and Blackburn, JJ., concur. Pope, C. J., Beasley, P. J., and Ruffin, J., concur in the judgment only. Johnson and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I must respectfully dissent. Division 4 of the majority opinion, in my view, describes what was an improper comment on the evidence by the trial court and therefore was error. Since the evidence of guilt in this case was not overwhelming, I cannot conclude that this error was harmless. The conviction therefore should be reversed.

Decided November 15, 1994

Reconsideration denied December 19, 1994

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

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

       At the hearing on defendant’s motion for new trial, defense counsel informed the trial court that he was held accountable for paying the court reporter in another case where he was assigned to represent an indigent criminal defendant.


author: Ruffin, Judge.

text:
    A94A1505.
    CAVER v. THE STATE.
    (452 SE2d 515)
   Ruffin, Judge.

Appellant, Anthony Caver, was charged with shoplifting and possession of a firearm by a convicted felon, stemming from an incident in which he was stopped from exiting a department store with a shopping cart full of power tools. His trial was bifurcated to prosecute the shoplifting charge first, and when the jury convicted him of that offense, the State nolle prossed the possession of a firearm charge. The trial court subsequently sentenced appellant to ten years’ imprisonment as a recidivist under OCGA § 17-10-7 (b), and this appeal followed.

1. Because appellant was intoxicated at the time of his arrest, he was placed in a holding cell to sober up before being fingerprinted and processed. About two hours later, he told the arresting officer about a blue pickup truck bearing Alabama tags that he had parked at the store. The truck was impounded, and during an impound search of the vehicle, officers found articles of clothing still bearing the store’s tags and a loaded semi-automatic handgun.

Appellant contends that the trial court erred in allowing the arresting officer to testify about discovering the handgun in the pickup truck, on the grounds that it impermissibly placed his character in issue and lack of relevance. We disagree.

“ ‘All circumstances connected with an arrest are proper matters to be submitted to the jury to be weighed by them for what they are worth.’ [Cit.] The fact that the evidence ‘may have incidentally intimated appellant’s participation in another crime does not render such (evidence) inadmissible.’ [Cit.]” Ashley v. State, 160 Ga. App. 325 (2) (287 SE2d 321) (1981); Grimes v. State, 168 Ga. App. 372, 375 (3) (308 SE2d 863) (1983).

2. Appellant subpoenaed the owner of the pickup truck (and the handgun found therein) to appear as a witness on October 25, 1993, and that individual appeared on that day. However, appellant did not call him to testify until October 26, 1993, and the witness no longer was present. Appellant then moved for a continuance, which was denied by the trial court.

Under OCGA § 17-8-25, before a continuance based upon the absence of a witness may be granted, the movant must show that the witness is absent; that he has been subpoenaed; that he resides within 100 miles of the place of trial; that his testimony is material; that the witness is not absent by permission of the movant; that the witness’s testimony can be procured by the next term of court; that the motion is not made for the purpose of delay; and must state the facts expected to be proved by the absent witness. “Each of the requirements set forth in OCGA § 17-8-25 must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance based upon the absence of a witness. [Cit.]” Garrett v. State, 202 Ga. App. 463 (414 SE2d 693) (1992).

In the instant case, the witness was not subpoenaed to appear on the day he was absent; his testimony concerned the ownership of the truck and handgun, which was immaterial to the shoplifting charge for which appellant was convicted; and appellant could not show that the witness’s presence could be procured by the next term of court. In these circumstances, this court is unable to find that the trial court abused its discretion in denying appellant’s motion for continuance. Id.

3. When appellant was confronted as he attempted to exit the store, he claimed to have paid for the items in the shopping cart but was unable to produce a sales receipt. During its case-in-chief, the State attempted to 'call as a witness a sales clerk on duty on the day in question. However, the trial court disallowed that testimony because the State had not included the witness on the witness list provided to appellant as required by OCGA § 17-7-110.

Subsequently, appellant testified that when he was stopped from exiting the store, he insisted that he had paid for the goods and pointed in the general direction of the sales clerk whom he paid for the merchandise, but he denied specifying a particular clerk. On rebuttal, the trial court allowed the State to call the sales clerk whose testimony previously had been excluded, and this witness indicated that appellant had specifically identified her as the clerk who made the sale.

Appellant contends that the trial court thus erred in allowing the State to do indirectly what it could not do directly. However, “it is well settled that calling an unlisted witness in rebuttal is not error and does not violate OCGA § 17-7-110.” (Citations and punctuation omitted.) Snider v. State, 200 Ga. App. 12, 15 (7) (406 SE2d 542) (1991).

Decided October 12, 1994

Reconsideration denied December 19, 1994

Richard D. Hobbs, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

4. Where the State proves a defendant’s prior felony convictions for the purpose of convicting him of being a convicted felon in possession of a firearm, it may not also use those prior convictions in aggravation of punishment. State v. Freeman, 198 Ga. App. 553, 555 (2) (402 SE2d 529) (1991). In the instant case, when the jury convicted appellant on the shoplifting charge, the State chose to abort the prosecution of the convicted felon in possession of a firearm charge, so that it would not be barred from using appellant’s previous felony convictions in aggravation of punishment. Pursuant to OCGA § 17-10-2 (a), the State properly gave pretrial notice of its intended use of appellant’s prior convictions for that purpose, and the procedural maneuver employed by the State was consistent with the restriction set forth in Freeman.

5. During the sentencing hearing, the State adduced three prior felony convictions of appellant from the State of Alabama. Appellant now contends that the trial court erred in failing to make a thorough inquiry as to whether those prior convictions really were for felony offenses. However, during the sentencing hearing, although counsel for appellant objected to the consideration of the prior convictions on other grounds, he conceded that appellant “does have a number of three prior felony convictions [sic], no question about it.” Accordingly, this court will not consider this issue raised for the first time on appeal. Moore v. State, 181 Ga. App. 548, 549 (2) (352 SE2d 821) (1987).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge. Pope, Chief Judge, Smith, Judge,

text:
    A94A1561.
    LANCE et al. v. AMERICAN EDWARDS LABORATORIES et al.
    (452 SE2d 185)
   McMurray, Presiding Judge.

Glenda Lance filed an action against her physician, his employer and the manufacturer and distributors of a medical device (designed for implantation into the human stomach) known as the Garren-Edwards Gastric Bubble (“the gastric bubble”), alleging medical malpractice, breach of express warranty, breach of implied warranty and products liability. Her spouse, Floyd Lance, sued for loss of consortium. Summary judgment was entered in favor of Ms. Lance’s physician and his employer and this judgment was affirmed in Lance v. Elliott, 202 Ga. App. 164 (413 SE2d 486).

The Lances dismissed their original complaint and later filed a renewal action against the designer and manufacturer of the gastric bubble, American Edwards Laboratories, and the distributors of the gastric bubble, American Hospital Supply Corporation and Baxter Travenol Laboratories, Inc., n/k/a Baxter International, Inc. (defendants), seeking damages allegedly sustained when a gastric bubble ruptured through a hernia in Glenda Lance’s abdominal wall. The Lances based their claims on theories of strict liability, negligent design and negligent manufacture. Defendants denied the material allegations of the complaint and filed a motion for summary judgment, contending the doctrine of federal preemption bars the Lances’ products liability claims. Defendants argued in their supporting brief that the gastric bubble is subject to the Medical Device Amendments (“MDA”) to the Federal Food, Drug & Cosmetic Act, 21 USC § 360c, and that their compliance with all statutory and regulatory requirements of the MDA precludes imposition of higher state standards for design, manufacture and use of the gastric bubble.

The evidence, construed in a light which most favorably supports the Lances’ claims, reveals the following: The gastric bubble is a medical device used for treatment of severe obesity. It is designed to decrease food cravings via insertion, inflation and floatation of a bubble in the upper region of a patient’s stomach. The gastric bubble is available only upon prescription, application (insertion) and supervision of a physician and is not readily recommended for patients with abdominal wall hernias. Such patients are at high risk for serious complications, i.e., hernial ruptures.

Glenda Lance consulted a physician regarding her problem with chronic obesity and, despite Lance’s history of abdominal surgery and hernias, this physician suggested use of a gastric bubble for treatment of Ms. Lance’s condition. The physician advised Ms. Lance of certain dangers associated with use of the gastric bubble, but he did not inform her that the gastric bubble “should not be inserted in a person with an incisional hernia. [Nor was it ever] indicated to [Ms. Lance] that because [she] had a prior incisional hernia, that the gastric bubble should not be used. [Ms. Lance] was never given any information from the manufacturer that suggested that in a patient with a prior incisional hernia there was a possibility that the gastric bubble would deflate and migrate to the incisional hernia.”

On April 7, 1987, a gastric bubble was inserted into Glenda Lance’s stomach by her physician and, within 20 days, Ms. Lance began experiencing severe abdominal pain. However, the problem was not accurately diagnosed until June 13, 1987, when the gastric bubble in Ms. Lance’s body burst through a hernia in her abdominal wall. The device was then surgically removed.

The trial court granted defendants’ motion for summary judgment “based on the preemption doctrine [and] the court’s finding [that the] medical device at issue is dispensed by prescription only and [that] any obligation to warn the patient is the doctor’s.” This appeal followed. Held:

The Lances contend the trial court erred in granting defendants’ motion for summary judgment, arguing that genuine issues of material fact remain as to defendants’ liability for failing to warn her of the known danger of inserting a gastric bubble into a patient with an “incisional” hernia. Defendants contend they had no such common-law duty to warn because of federal preemption under the MDA. See 21 USC § 360k (a).

“The Supremacy Clause of the United States Constitution dictates that federal law preempts inconsistent state law. U. S. Const., Art. VI, cl. 2. ‘Pre-emption may be either express or implied, and is “compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977).’ Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U. S. 141, 152 (102 SC 3014, 73 LE2d 664) (1982). Although it is often necessary to examine legislative history to determine whether Congress intended to preempt state law, ‘when a federal statute unambiguously precludes certain types of state (law), we need go no further than the statutory language to determine whether the state (law) is preempted.’ Exxon Corp. v. Hunt, 475 U. S. 355, 362 [(106 SC 1103, 89 LE2d 364) (1986)].” Poloney v. Tambrands, Inc., 260 Ga. 850 (1) (412 SE2d 526). In the absence of express preemptive language, Congressional intent may be inferred “where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947).” Hillsborough County, Fla. v. Automated Med. Laboratories, 471 U. S. 707, 713 (105 SC 2371, 85 LE2d 714).

In the case sub judice, defendants cite no specific federal provision imposing a duty upon them to warn consumers of dangers associated with use of the gastric bubble and they assert no persuasive argument that federal regulation leaves no room for supplementary state regulation requiring warning labels or notices for devices similar to the gastric bubble. Further, we have examined the MDA and find no barriers to state regulations of medical devices similar to the gastric bubble. See Hillsborough County, Fla. v. Automated Med. Laboratories, 471 U. S. 707, 713, supra. Compare Poloney v. Tambrands, Inc., 260 Ga. 850 (1), supra. It therefore appears the trial court erred in granting defendants’ motion for summary judgment “based on the preemption doctrine.” However, we find no error in the trial court’s ruling that defendants had no duty to warn Ms. Lance of dangers associated with use of a gastric bubble in patients with abdominal hernias.

In Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (434 SE2d 63), a majority of the Court of Appeals of Georgia held that pharmacists have no common-law duty to warn a customer or notify a physician that a drug is being prescribed in a dangerous amount, stating that it is the duty of the prescribing physician to warn the patient of any dangers associated with taking the drug. Id. at 520 (2), 522, supra. This court reasoned that the duty to warn was solely with the treating physician because the decision to employ prescription medication involves professional assessment of medical risks in light of the physician’s knowledge of a patient’s particular needs and susceptibilities. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 520 (2), 521, supra. This same logic applies in the case sub judice.

It is undisputed that the gastric bubble is available only upon prescription, application (insertion) and supervision of a physician and that a gastric bubble was inserted into the stomach of Glenda Lance pursuant to her physician’s advice and prescription. Consequently, Glenda Lance’s treating physician had sole responsibility for advising his patient of dangers associated with use of the gastric bubble, not the designer and manufacturer and the distributors of the device. In fact, any information supplied to Ms. Lance by defendants regarding dangers associated with use of the gastric bubble may have compromised the doctor-patient relationship and thus impaired the best medical treatment for Ms. Lance’s chronic condition. It thus follows that no practical conditions (or means) existed for defendants to supply Glenda Lance with notice that the gastric bubble is contraindicated for use in patients with abdominal hernias. Defendants simply had no common-law duty to warn Ms. Lance of the risks associated with use of the gastric bubble. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 520 (2), supra. Compare Davis v. Wyeth Laboratories, 399 F2d 121 (1968), where the manufacturer of a prescription drug (polio vaccine) was required to warn consumers of risks associated with use of the prescription medication because the drug was distributed without an individualized balancing by a physician of the particular risks involved.

The trial court did not err in granting defendants’ motion for summary judgment.

Judgment affirmed.

Pope, C. J., and Smith, J., concur specially.

Pope, Chief Judge,

concurring specially.

I concur with the judgment of the majority; however, I disagree with the holding in Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (434 SE2d 63) (1993), and believe the majority’s reliance on the case is misplaced.

In Eckerd, a majority of this court held that pharmacists have no common-law duty to warn patients of possible error. In my dissent, I agreed with the Washington Supreme Court which attributed to a pharmacist the limited duty “to accurately fill a prescription and to be alert for clear errors or mistakes. . . .” (Citations and punctuation omitted.) Id. at 525 (Pope, C. J., dissenting). In my view, a pharmacist should be required to question a prescription which is erroneous or irregular in order to protect the patient and the physician from errors which could not be detected by the patient which are apparent to a properly trained pharmacist. Id. at 526.

The relationship between pharmacist and patient is not analogous to that between the manufacturer of a medical device and patient. The limited duty which I attribute to the pharmacist arises by virtue of his intermediary role between the physician and the patient. The pharmacist exerts some control over dispensing prescription medications. He is aware of potentially hazardous side effects and is in a position to discuss with the physician or the patient any “obvious inadequacies appearing on the face of the prescription which create a substantial risk of serious harm to the plaintiff.” Id. No such intermediary position exists for the manufacturer of a medical device which must be prescribed, purchased, surgically implanted and supervised by a physician. At all times the device and its application are under the control of the prescribing physician. The conditions do not exist and the manufacturer has no practical means to supply a patient with notice of any risks or side effects associated with the use of its product. Therefore, I concur in the majority opinion that defendant had no common-law duty to warn Ms. Lance of the risks associated with the use of the gastric bubble and would affirm the trial court’s grant of summary judgment to the defendant.

Smith, Judge,

concurring specially.

Unlike Chief Judge Pope, I believe Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (434 SE2d 63) (1993) was correctly decided, but I agree with him that it is inappropriate to rely upon that case as authority here. As Chief Judge Pope’s concurring opinion states, these defendants had no common-law duty to warn because the device and its application at all times were under the control of the prescribing physician.

Decided December 2, 1994

Reconsideration denied December 19, 1994.

Saia, Richardson & Meinken, Joseph J. Saia, for appellants.

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Susan A. Dewberry, for appellees.

       For a more detailed recitation of the facts see Lance v. Elliott, 202 Ga. App. 164, supra.


author: Johnson, Judge. Beasley, Presiding Judge, Smith, Judge,

text:
    A94A1563.
    STEVENS v. THE STATE.
    (452 SE2d 176)
   Johnson, Judge.

Matel Stevens was indicted for obstructing a law enforcement officer, interfering with government property, driving without headlights, driving without a license, driving without insurance, and driving while under the influence of alcohol. During the trial, the state tendered into evidence a videotape of Stevens and others being tested on an intoximeter machine. The state played for the jury that section of the tape showing Stevens’ test and inadvertently showed a few seconds of the next suspect’s test. Immediately after the court admitted the tape, Stevens’ attorney expressed concern that it contained matters unrelated to the instant case. The trial court specifically stated it would address the issue “at the proper time.” When the state later asked about the tape, the court suggested the state copy relevant portions of the tape onto another tape. The court added, “[o]therwise, [the state has] chosen to put that piece of evidence into court, it is in court. Pure and simple. If you put a textbook into evidence, for example, that textbook is going down to the clerk’s office to be documented. If you wish to make an offer of substitution, xerox some copies out of the textbook and put that into evidence instead, that is fine. Same with a videotape. Put the tape in evidence, the tape is evidence.” The state did not substitute another tape for the one already admitted. During closing argument, Stevens’ counsel showed the jury a portion of the videotape depicting another suspect’s test which preceded Stevens’ test and which had not previously been shown to the jury. Counsel then told the jury, “I chose that to demonstrate something to you. Officer Lamb testified that every person. . . .’’At that point, the prosecutor moved for a mistrial claiming Stevens’ counsel improperly commented on evidence unrelated to the instant case. The jury was taken out of the courtroom. Stevens’ counsel stated he thought the court had said the entire tape was in evidence. The court discussed counsel’s motive for showing that segment of the tape and, without any discussion of less drastic alternatives, granted the state’s motion for a mistrial. At the same time, the court held Stevens’ attorney in contempt. Stevens filed a plea in bar to prevent her retrial by the state on the same charges, which the trial court denied. Stevens appeals.

1. Stevens contends the trial court erred in denying her plea in bar on double jeopardy grounds because the mistrial was improperly granted. We agree. “The power of a trial court to interrupt the proceedings on its own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. Retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the ends of public justice be defeated; the existence of manifest necessity is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.” (Emphasis in original; citations and punctuation omitted.) Bradfield v. State, 211 Ga. App. 318, 319 (439 SE2d 100) (1993). “Because of the severe consequences of ordering a mistrial without the accused’s consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives. . . .” (Citations and punctuation omitted.) Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994).

Our examination of the record does not reveal any manifest necessity for declaring a mistrial in this case. The actions of Stevens’ counsel were not of the type which would defeat the ends of public justice or prevent a fair trial. First, the law allows counsel wide latitude during closing argument to remark upon the evidence and facts which are before the jury. Alexander v. State, 263 Ga. 474, 476 (2) (c) (435 SE2d 187) (1993). The court’s comments in response to the prosecutor’s inquiry about whether the entire tape was in evidence implied that if the relevant portion was not copied onto another tape, the entire tape would remain in evidence. The trial court did not instruct counsel not to use or comment upon parts of the tape not previously shown to the jury. We cannot conclude, under these circumstances, counsel’s conduct was flagrantly unfair. Moreover, the conduct must have been so prejudicial that it would be impossible to proceed with the trial without injustice resulting. See Bradfield, supra at 320. We do not find counsel’s words or conduct to be so prejudicial as to warrant a mistrial. Finally, the record must disclose that the trial court considered less drastic alternatives before declaring mistrial. Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650) (1994). In this case, there is no indication in the transcript the trial court considered any alternative remedies before declaring a mistrial. Indeed, under the circumstances of this case, curative instructions might have been sufficient to undo any possible harm. There being nothing in the record to indicate a manifest necessity for declaring a mistrial and, having failed to explore alternative remedies, the trial court erred in denying Stevens’ plea of double jeopardy. See Bradfield, supra at 320; Foody v. State, 205 Ga. App. 666, 668 (423 SE2d 423) (1992).

2. Stevens also appeals from the trial court’s order finding her attorney in contempt of court. We do not reach this issue for two reasons. First, the appeal from that order is untimely because it was not filed within 30 days after the order was entered. See OCGA § 5-6-38 (a). Secondly, Stevens does not have standing to challenge an order finding her attorney in contempt. It is well-settled that a person may only challenge a ruling which has adversely affected his or her own rights. See, e.g., Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691) (1990); Johnson v. State, 208 Ga. App. 747, 749 (3) (431 SE2d 737) (1993). Although there are perhaps circumstances in which a criminal defendant might be harmed by the issuance of a contempt citation against his or her attorney, such circumstances are not present here. Stevens was not adversely affected by the trial court’s entry of a judgment of contempt against her attorney. Any appeal from the contempt judgment would therefore have to be brought by the attorney in his own name.

Judgment reversed in part and appeal dismissed in part.

Pope, C. J., Birdsong, P. J., Blackburn and Ruffin, JJ., concur. McMurray, P. J., Beasley, P. J., Andrews and Smith, JJ., dissent.

Beasley, Presiding Judge,

dissenting.

I concur in Division 2 of the opinion, which holds that the appeal from the order of contempt must be dismissed, but I dissent from reversal of the judgment.

The trial court did not err in denying defendant’s plea in bar on double jeopardy grounds. The carefully detailed order describes the sequence of events which led up to the grant of mistrial during defense counsel’s closing argument. It explains that the court had found that defense counsel deliberately displayed a portion of the videotape to the jury during closing argument which counsel knew had not been admitted in evidence, and had also found that what was shown was not relevant and was prejudicial to the State. The trial court, unlike this court, saw what unrelated matter was shown to the jury by defendant and it was in a position, unlike this court, to assess the effect on the jury. In the order, the court stated that the problem could not have been rectified by curative instruction which, in the court’s judgment, would have only exacerbated the evil. This same conclusion was stated in the order of mistrial and contempt entered shortly after the aborted trial. The trial transcript fully supports the court’s findings and warrants its conclusions.

Defendant’s plea in bar is based on the double jeopardy clause of the Fifth Amendment to the United States Constitution, the double jeopardy provision in Georgia’s Bill of Rights, and OCGA § 16-1-8 (a) (2). In her briefs and letter-brief below, she made no distinction between the two constitutions and presented no separate argument with respect to the state constitution as an independent ground. See Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983). The trial court impliedly concluded that neither the statute nor either constitution had been violated by the grant of mistrial in that it cited cases dealing with all three bases: State v. Abdi, 162 Ga. App. 20 (288 SE2d 772) (1982), aff’d 249 Ga. 827 (294 SE2d 506) (1982); Abdi v. State of Ga., 744 F2d 1500 (11th Cir. 1984); Bradfield v. State, 211 Ga. App. 318 (439 SE2d 100) (1993).

On appeal, defendant cites the three sources but argues them all together, indiscriminately, even though they are not the same. She has not shown that her rights under any one of them will be infringed by another trial, one that is brought to a conclusion. In support of her contention that double jeopardy bars retrial because the grant of mistrial was improper, Stevens cites only Morris v. State, 262 Ga. 446 (421 SE2d 524) (1992), and Bradfield, supra.

“[T]he defense injected the matter that resulted in the mistrial and cannot prevent retrial by withholding consent to the mistrial.” McGarvey v. State, 186 Ga. App. 562, 563 (368 SE2d 127) (1988). As in Moss v. State, 200 Ga. App. 253 (407 SE2d 477) (1991), Venson v. State, 212 Ga. App. 540 (1) (441 SE2d 893) (1994), and Height v. State, 212 Ga. App. 410 (442 SE2d 8) (1994), other recent cases where defendants injected prejudice, the court’s “broad discretion” in granting the mistrial was not abused. The result is that bars against double jeopardy have not been breached. As repeated in Height, supra at 411, “[t]he trial court has a broad discretion in declaring mistrial, particularly ‘when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice.’ ”

Whether by mistake or design, the effect on the jury in this instance was the sáme. That is, whether defense counsel knew or did not know that the unrelated portions of the videotape which he displayed to the jury were not in evidence, the finding of the trial court that it was prejudicial against the State is unassailable. So is its exercise of discretion in eschewing remedies short of mistrial.

I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.

Smith, Judge,

dissenting.

I agree with Presiding Judge Beasley that the trial court did not err in declaring a mistrial or in denying the plea in bar on double jeopardy grounds. The trial court was in the best position to judge the conduct of counsel and its effect on the jury; the trial court properly concluded that the defense injected the matter resulting in a mistrial and that bars against double jeopardy therefore were not breached. I dissent separately to emphasize the more than ample basis on which the trial court concluded that counsel for Stevens deliberately injected the matter resulting in the mistrial.

The trial court’s order on defendant’s plea in bar and former jeopardy fully sets forth the basis for granting the mistrial and denying Stevens’ plea in bar. The trial court found counsel’s expressed belief that the entire videotape was in evidence incredible, because counsel initially raised the point that portions of the videotape were inadmissible and, in fact, suggested they be excluded. Counsel fully participated in the discussion of creating a redacted tape, and he was aware of the reason for the redaction: to preserve the record for appeal while returning the video footage of other intoximeter tests to the police department for later use.

Noting this initial recognition of inadmissibility and the subsequent chain of events, the trial court concluded that counsel’s failure to ask for clarification on the use of the tape was part of a deliberate scheme to misuse irrelevant portions of the tape. The trial court reasoned that when the tape was played for the jury, counsel caught a brief glimpse of another intoximeter subject without handcuffs. Immediately thereafter, counsel cross-examined Officer Lamb, the intoximeter operator, as to whether every test subject was handcuffed. He elicited the response: “[e]very adult that comes into that room has handcuffs on.”

As the trial court noted, the only reason for this line of questioning was as a predicate to playing the irrelevant portions of the tape in an attempt at impeachment. In fact, during closing argument, counsel stated to the jury: “I chose that to demonstrate something to you. Officer Lamb testified that every person . . .” before being cut short by an objection. Lamb testified to only one fact concerning “every person” — that every person was handcuffed.

The trial court further noted that counsel gave varying and conflicting explanations of his manipulation of the videotape during a recess and his belief regarding its admissibility. The courtroom bailiff’s testimony regarding counsel’s conduct during the recess also conflicted with counsel’s explanation.

Decided December 2, 1994

Reconsideration denied December 19, 1994

James N. Finkelstein, Donaldson, Hall, Martin, Garvey & Bell, George P. Donaldson III, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

The trial court concluded that counsel, having already elicited the testimony he needed for his attempt at impeachment, deliberately used irrelevant portions of the videotape during closing argument and claimed he had “misunderstood” the trial court’s earlier comments. That conclusion is thoroughly supported by the trial court’s observations and citations to the record. Both the trial court’s conclusion and the basis for it in the record should be noted by this court in affirming the trial court’s decision to declare a mistrial and its subsequent denial of Stevens’ plea in bar.

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

       Defense counsel himself had earlier argued that there were portions of the tape which were not related to this case.

       Constitution of Georgia, Art. I, Sec. I, Par. XVIII.


text:
    A94A1582.
    CAUSEY v. THE STATE.
    (452 SE2d 564)
   Ruffin, Judge.

Appellant, Robert Causey, was tried and convicted by a jury of aggravated battery against his wife and he appeals the conviction. The evidence showed that Causey’s wife was severely bruised, beaten and in a coma when he brought her to the hospital. She was diagnosed with a subdural hematoma, more commonly understood as bleeding on the surface of the brain. Mrs. Causey is now in a vegetative state.

The night of the incident, Causey was taken into custody, given his Miranda rights and interviewed on videotape. During the interview he confessed that he and his wife had argued and he had slapped her, left finger marks on her face and that one strike “bounced her off the wall.” The confession was played for the jury. In addition, a nurse who attended Mrs. Causey testified that she asked Causey how his wife’s injuries were caused and he replied that he “just went off” and “threw her against the wall.”

At trial, however, Causey denied even slapping his wife and insisted that she had suffered a seizure from cocaine use that evening which in turn caused her to fall on the bathroom floor, hit her head and go into a coma. The State presented evidence from a forensic pathologist as well as Mrs. Causey’s neurosurgeon that the bruises and marks on Mrs. Causey’s face were consistent with multiple blows from a human hand and inconsistent with a fall.

1. Causey contends the evidence was insufficient to enable a rational trier of fact to find proof of aggravated battery beyond a reasonable doubt. “On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence. . . .” (Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). The record, including Causey’s confession, the testimony of hospital personnel about Causey’s admissions and the testimony of the pathologist and neurosurgeon, reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Causey was guilty of the offense of aggravated battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Causey contends the trial court erred in failing to charge on the lesser included offense of simple battery. “The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. [Cit.]” Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). Here, there was no evidence at all that Causey committed the lesser offense of simple battery by virtue of his denial that he slapped his wife and his insistence that her injuries were caused by an overdose of cocaine resulting in a seizure which caused her to fall and hit her head. However, the jury did hear ample evidence that Causey committed aggravated battery. “Under this evidence, appellant was either guilty of aggravated battery or not guilty of any crime.” McKissic v. State, 201 Ga. App. 525, 526 (411 SE2d 516) (1991). This enumeration is without merit.

3. Causey contends the trial court erred in failing to allow him to introduce evidence of his wife’s prior drug use because the excluded evidence was the core of his defense that his wife’s injuries were caused by a cocaine induced seizure. The exclusion of evidence on grounds of relevancy is a matter which rests within the sound discretion of the trial court and such a determination will not be disturbed on appeal absent a clear abuse of discretion. Moss v. State, 206 Ga. App. 310 (1) (425 SE2d 386) (1992). We find no abuse of discretion. The court’s restriction was only as to testimony about prior drug use by either Mr. or Mrs. Causey. However, Causey was allowed to testify as to his wife’s use of cocaine on the night of the incident. Furthermore, despite the fact that the defense presented no medical evidence that Mrs. Causey had indeed suffered a seizure and the State presented expert medical testimony from a forensic pathologist and Mrs. Causey’s neurosurgeon showing the injuries were inconsistent with a seizure, the court allowed Causey’s pharmacology expert to testify that cocaine use can cause seizures in humans. Causey was also allowed to testify that his wife had a seizure that night. Thus, we are satisfied the trial court did not exclude evidence critical to Causey’s defense, but simply prevented non-probative evidence from being presented to the jury.

4. Causey contends the trial court erred in restricting testimony from his pharmacology expert as to why the expert thought Mrs. Causey had overdosed on drugs and why people inject drugs in their neck. We can find no place in the record, including those pages cited in Causey’s brief, where the subject of the expert’s opinion regarding an overdose was raised. Thus, we find nothing for review. “No question is presented to this court unless the enumeration of errors and record clearly show that the question was presented to and passed on by the trial court.” (Citations and punctuation omitted.) Loden v. State, 199 Ga. App. 683, 689 (7) (406 SE2d 103) (1991).

As to the expert testifying about why, in his experience, people inject drugs into their neck, Causey apparently expected the expert would testify that it is generally experienced cocaine users or addicts who do so, thus getting before the jury evidence about prior drug use that the court had already ruled inadmissible. The court ruled that the proffered testimony about why people generally engage in this practice was speculative and had no applicability to the particular situation at hand. The court also found the testimony inconsistent with testimony Causey gave during a proffer that Dilaudid (rather than cocaine) was the drug his wife usually injected. We reiterate that a trial court’s exclusion of evidence will not be disturbed absent an abuse of discretion. Moss, supra. We find no such abuse here, particularly as we have already affirmed the court’s ruling excluding evidence of prior drug use, which the proffered testimony would appear to violate.

5. Causey contends the trial court erred in allowing the State to show a videotape of Mrs. Causey in her present permanent vegetative state because it was prejudicial and repetitive. We disagree. “To prosecute an accused for [aggravated battery], it must be shown that the defendant [maliciously] caused bodily harm to another by . . . rendering a member of his body useless. . . . We find that the videotape was relevant and had probative value in that it illustrated for the jury the extent of . . . the victim’s injuries.” (Punctuation omitted.) Dudley v. State, 204 Ga. App. 327, 328 (2) (419 SE2d 138) (1992).

6. Causey contends the trial court erred by allowing the State to put his character in issue. Inexplicably, he cites four pages in the record to support this argument, but fails to specify any particular statement which did so. Nor does Causey show that he objected to his character being placed in issue with any of these unidentified statements or how he was harmed by them. Because the issue was not preserved for appeal and because neither the alleged error nor any harm have been specified on appeal, this enumeration is without merit. See Loden, supra and Asbury v. Ga. World Congress Center, 212 Ga. App. 628, 632 (442 SE2d 822) (1994) (instructing that this court’s function is not to cull the record on behalf of a party to search for error and that appellant must show harm from the alleged error).

7. Causey contends the trial court erred in allowing into evidence his videotaped confession because the State did not provide him a complete copy as required by former OCGA § 17-7-210. However, the State provided Causey a summary of the statement that the court found to be very consistent with the actual statement with no material omissions. “A ‘verbatim account’ of defendant’s statements was not required, where counsel was given a written summary of the statement prior to trial which included all relevant and material portions of the defendant’s . . . in-custody statements. [Cit.]” Orr v. State, 209 Ga. App. 832, 834 (434 SE2d 723) (1993). Like his contention regarding the character evidence, Causey has failed to articulate in what respect the summary was deficient or how he was harmed by it. Thus, this enumeration presents no grounds for reversal.

8. Causey contends the trial court erred in allowing the State to use x-rays at trial because they were not disclosed prior to trial as required at the time by former OCGA § 17-7-211. However, that Code section requires only “written scientific reports” to be furnished to the defendant and “x-rays . . . [are] not discoverable as written scientific reports inasmuch as they [do] not contain the [doctor’s] conclusions and findings, but had to be interpreted by him to attain significance.” Harris v. State, 260 Ga. 860, 864 (4) (401 SE2d 263) (1991). This enumeration is without merit.

9. Causey contends the trial court erred in excluding the results of a drug screening performed on the victim in the hospital. We disagree. First, it is unclear what the drug screening showed. Presumably, it was positive for certain drugs, but Causey’s counsel made no proffer on the record as to the results and has not made the results part of the record for our review on appeal. We cannot consider allegations of error in the brief of a party which are not supported by evidence in the record. See Fields v. State, 194 Ga. App. 149, 151-152 (390 SE2d 71) (1990) (a proffer of what the excluded evidence would have shown is necessary to afford a basis for an assertion of error); Bowman v. State, 186 Ga. App. 544, 549 (368 SE2d 143) (1988) (holding that failure to make a proffer as to expected testimony prevents appellate review of same). Further, the State objected to the evidence because such screenings have not reached a state of scientific certainty and are not yet a scientifically accepted method to prove the presence of drugs in an individual’s body. In support of its objection, the State cited warnings from the manufacturer of the screening device that the device gave only preliminary analyses, that it was not the preferred method to confirm drug use and it could give false positives for a variety of reasons. The record does not reveal that Causey countered with any evidence as to the scientific validity or reliability of the test. Under these circumstances, we cannot say the trial court abused its discretion in excluding the results.

10. Causey contends he was denied effective assistance of counsel in five ways. We have held that in order to show ineffective assistance, the appellant “must show that counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different.” (Punctuation omitted.) Postell v. State, 212 Ga. App. 868, 869 (443 SE2d 530) (1994) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)). “The failure to establish either element of the test will result in the denial of defendant’s claim of ineffective counsel.” Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

(a) Causey contends he was denied effective assistance of counsel by virtue of the fact that his counsel waived a Jackson-Denno hearing as to his confession. We disagree. The record reveals that after counsel waived the hearing, the court explained to Causey his right to object to the statement if it was not voluntarily made, and Causey stated he understood the right and waived it. Furthermore, on appeal, Causey does not even argue that the statement was involuntary and makes no showing that the outcome of the trial would have been different had such a hearing taken place. This enumeration is without merit.

(b) Causey alleges his counsel failed to adequately cross-examine the State’s medical experts on the cause of Mrs. Causey’s injuries. However, he fails to cite a single page in the transcript to support this contention and does not specify the way in which the cross-examination was allegedly deficient. He is therefore deemed to have abandoned this argument pursuant to Court of Appeals Rule 15 (c) (2).

(c) Causey also contends he was denied effective counsel because his attorney failed to have a defense expert testify on the cause of his wife’s injuries and failed to object to an investigating officer’s testimony that the victim’s injuries were typical of those in domestic violence. We disagree. Following Strickland, supra, our Supreme Court has held “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Punctuation omitted.) Postell v. State, supra.

Decided December 5, 1994

Reconsideration denied December 19, 1994

Jill L. Anderson, Elizabeth A. Geoffroy, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

With regard to these two allegations of ineffectiveness, we find that in light of the overwhelming evidence from the State’s medical experts that the injuries were consistent with blows from a hand and inconsistent with either a seizure or a fall, the nurse’s testimony about Causey’s admissions and Causey’s confession, the “defendant has failed to show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.” (Citations and punctuation omitted.) Id. at 870. These enumerations are without merit.

11. Causey contends that he was denied effective counsel by his attorney’s failure to object to his being sentenced as a recidivist. He also contends the trial court erred in sentencing him as a recidivist because he was not indicted as such. We address these enumerations together. Causey relies on Jenkins v. State, 201 Ga. App. 654, 657 (413 SE2d 460) (1991) for his argument. However, in Wainwright v. State, 208 Ga. App. 777, 779-780 (432 SE2d 555) we explicitly overruled Jenkins’s requirement that a defendant be indicted as a recidivist prior to being sentenced as such where the prior convictions do no more than subject the defendant to a certainty of the maximum sentence for the crime indicted. Id. Causey was sentenced to the maximum sentence for aggravated battery pursuant to OCGA § 16-5-24 (b). Accordingly, these enumerations are without merit.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge. McMurray, Presiding Judge,

text:
    A94A1598.
    BECK et al. v. DENNIS.
    (452 SE2d 205)
   Pope, Chief Judge.

In this medical malpractice action, plaintiffs William and Linda Beck appeal from the trial court’s grant of summary judgment to defendant based oil the statute of repose. See OCGA § 9-3-71 (b). Concluding that a question of fact remains regarding defendant’s fraudulent concealment of his negligent act, we reverse.

Viewing the facts in a light favorable to plaintiffs, it appears that defendant (an ear, nose and throat specialist — “ENT”) operated on Mr. Beck in 1983 after he was seriously injured in an automobile accident. Mr. Beck suffered numerous fractures of his facial bones, and defendant used nasal packing to control bleeding and stabilize the fractures. Although defendant generally notes how many pieces of packing he puts in during an operation, he did not do so in this case. Several days later, defendant removed all the packing from the right side of Mr. Beck’s nose and most of the packing from the left. Defendant was unhble to find all the packs on the left side, however. He knowingly left a pack there, figuring he would find it and take it out another time. He did not tell Mr. Beck about the remaining piece of packing; nor did he make any notation about it in Mr. Beck’s records. Defendant then operated on Mr. Beck a second time. Again he failed to remove the packing or make a notation of it, even though he knew it was there.

After the second operation, Mr. Beck had trouble with his jaw slipping. He decided to change doctors, and because his primary problem was with his jaw, he went to Dr. Gruskin, an oral maxillofacial surgeon, rather than another ENT. Defendant called Mr. Beck, upset that he had changed doctors. Defendant did not tell Mr. Beck about the piece of packing defendant had left in his nose, however, even though he knew it was there and that it could cause problems if it remained. Defendant expected Dr. Gruskin to contact him, but when he did not, defendant made no effort to get in touch with him.

In 1990, Mr. Beck saw Dr. Davis, another ENT, for serious sinus problems he was having. When nothing else worked and a CT scan showed a mysterious opaque area in Mr. Beck’s nose, Dr. Davis operated and discovered the packing that had been left there seven years earlier. Less than one year later, this suit was brought.

1. “The physician-patient relationship is a confidential one and silence or failure to disclose what should be said or disclosed can amount to fraud.” Lynch v. Waters, 256 Ga. 389, 390 (349 SE2d 456) (1986). And the existence of such fraud is a question for a jury to decide. Leagan v. Levine, 158 Ga. App. 293 (279 SE2d 741) (1981). The statute of repose should not be applied to relieve a defendant of liability for injuries caused by negligence concealed by the defendant’s fraud, lest it provide an incentive for a doctor to conceal his negligence with the assurance that in five years he will be insulated from liability. See Hill v. Fordham, 186 Ga. App. 354 (367 SE2d 128) (1988).

Zechmann v. Thigpen, 210 Ga. App. 726 (5) (437 SE2d 475) (1993) and Hendrix v. Schrecengost, 183 Ga. App. 201 (1) (358 SE2d 486) (1987) are distinguishable. Zechmann was a misdiagnosis case in which there was no evidence that the defendant doctor knew the correct diagnosis he allegedly “withheld.” Similarly, Hendrix involved a doctor who allegedly withheld information that he had negligently failed to remove a patient’s cervix when he performed her hysterectomy, but there was no evidence that the doctor knew the cervix or any part of it remained. In this case, on the other hand, defendant acknowledged he knew he had left a piece of packing in Mr. Beck’s nose and that it could cause problems, yet he failed to inform Mr. Beck (or anyone else) so Mr. Beck could have it removed. As this evidence is sufficient to create an issue of fact regarding fraudulent concealment which would estop the doctor from relying on the statute of repose, the trial court erred in granting summary judgment.

2. Although we have concluded that the grant of summary judgment based on the statute of repose in this case must be reversed, we take this opportunity to state our views on that statute. While the Supreme Court has held the statute of repose is constitutional, see Craven v. Lowndes County Hosp. Auth., 263 Ga. 657 (437 SE2d 308) (1993), we believe a five-year period of repose is unrealistically short and produces unfair results in many cases. Too many patients are denied the right to recover from their negligent doctors simply because the effects of their doctors’ negligence did not become apparent until more than five years after the negligent act. We therefore urge the legislature to reconsider the five-year period of repose set forth in OCGA § 9-3-71 (b).

Judgment reversed.

Birdsong, P. J., Beasley, P. J., Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., Andrews and Johnson, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of reversal because it is my view that plaintiff Beck was not deterred from bringing a timely medical malpractice action as a result of any alleged fraudulent concealment by defendant Dennis of his own professional negligence. As a consequence, Beck’s tort claim for his undoubtedly painful circumstances is extinguished by operation of OCGA § 9-3-71 (b), the statute of ultimate repose.

“To make out a claim of equitable estoppel [sufficient to toll the statute of repose], the plaintiff must show fraud by offering evidence of a known failure to reveal negligence. Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (358 SE2d 486) (1987).” Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 660 (3) (437 SE2d 308). In my view, the majority confuses that which was intentional with that which might be deceitful. Defendant’s intentional act of leaving one gauze pack in plaintiff’s unhealed face, rather than poke around for it, was not itself negligent but was a matter of professional judgment. Neither is this medical judgment evidence of an intent to deceive the patient or lull him into a false sense of security. It follows that defendant’s silence on this matter during the existence of the patient-client relationship is not any evidence of a fraudulent or deceitful failure to reveal known negligence under the standard enunciated by the Supreme Court of Georgia in Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 660 (3), supra. I fully agree that, once plaintiff terminated the patient-physician relation by canceling the April 22, 1983, follow-up appointment with defendant and sought immediate treatment at Clayton General Hospital under the care of S. Gruskin, D.D.S, defendant then had a duty to alert someone to the existence of that last remaining gauze pack in plaintiff’s still unhealed face. It is my view that defendant could have fulfilled this duty by informing plaintiff’s new physician and was not necessarily obliged, under the applicable standard of care, to inform the patient himself or the patient’s family. The unrefuted evidence is that defendant expected but never received a request for medical records from plaintiff’s new physician “since he was still under care for facial fractures.” Consequently, the failure of defendant to inform the patient personally is not evidence of a breach of the applicable standard of care and so cannot be evidence of a deceitful attempt to mask negligent treatment.

Assuming, arguendo, the existence of a duty for a physician to track down a former patient who has deliberately canceled a followup appointment and sought immediate treatment elsewhere, it is my view that, in the case sub judice, defendant’s failure to take such an affirmative step, relying instead upon the anticipated request for medical records, is evidence only of passive negligence in the nature of a misdiagnosis. According to the Supreme Court of Georgia, “[h] owe ver, a fraud count must allege more than misdiagnosis to withstand a motion for judgment on the pleadings. [Cit.]” Lynch v. Waters, 256 Ga. 389, 390 (349 SE2d 456). “Nothing in this record shows that [defendant hid] any knowledge of [his own] negligent practice.” Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 660 (3), supra.

Lastly, even if a jury would be authorized to find that defendant intentionally concealed what he feared would be embarrassing facts in his treatment of the patient, nevertheless, the record in the case sub judice affirmatively shows that plaintiff was not deterred from bringing a timely action as a result of any fraudulent concealment by defendant. According to the complaint, plaintiff gradually suffered “chronic sinus problems” after defendant’s treatment, despite having sought the immediate assistance of Dr. Gruskin and the ultimate assistance of Dr. Davis. “Even if evidence of fraud exists, the statute of [ultimate repose] is not tolled when the plaintiff knew all facts necessary to [discover the] malpractice before the running of the [statute of repose]. [Cit.] In this case, the repeated recurrence of symptoms of medical complications prior to the running of the statute of [repose] should have put plaintiff on notice of possible negligent medical treatment. . . .” Hendrix v. Schrecengost, 183 Ga. App. 201, 203 (2), supra. As it is my view that the trial court correctly granted summary judgment based upon OCGA § 9-3-71 (b), the statute of ultimate repose, I respectfully dissent from the judgment of reversal.

Decided December 5, 1994

Reconsideration denied December 19, 1994

Reynolds & McArthur, Charles M. Cork III, for appellants.

Tisinger, Tisinger, Vance & Greer, Kevin Buice, for appellee.

I am authorized to state that Judge Andrews and Judge Johnson join in this dissent.