author: Beasley, Presiding Judge.

text:
    A93A0661.
    WHITLEY et al. v. DITTA.
    (434 SE2d 108)
   Beasley, Presiding Judge.

Pamela Ditta brought this action against Vanessa Whitley and her father John Whitley for damages sustained as a result of Vanessa’s negligence in causing a vehicular collision with Pamela. The jury returned a verdict awarding plaintiff $12,000 for past medical expenses, $10,000 for future medical expenses, and $200,000 for pain and suffering against the defendants. After the court entered judgment on the verdict, defendants filed a motion for j.n.o.v. or new trial, which the court denied. Defendants appeal, arguing that the damage awards are excessive and that imposition of liability against John Whitley under the family purpose doctrine is unauthorized.

Plaintiff testified that as a result of the collision, her face hit the car window slicing her eyelid in half and cutting her face to the muscle. She was taken to a hospital emergency room, where she was attended by a plastic surgeon, Dr. Slutsky. In treating her, he inserted long needles in her face and eye. Her parents could hear her screams from the waiting room. Dr. Slutsky referred plaintiff to another plastic surgeon, Dr. Nahai, who did four surgical procedures: three ZPlastys or scar revisions and one dermabrasion. Again, needles were put in her face and eye.

Dr. Slutsky testified that the total cost of his services to plaintiff was $1,514 and that his charge for a scar revision would be about $1,375. Dr. Nahai did not testify as to the amount of plaintiff’s bill, but he did testify that if he did another scar revision the total charge would probably be in the region of $1,250, and the total charge for another dermabrasion would be about $650.

Plaintiff was later treated by another plastic surgeon, Dr. Dixon. As of the date of the trial, he had performed two scar revisions. He did not testify as to what he charged. He did testify that it was very likely that a dermabrasion would later be needed and that other procedures might also have to be done.

Defendants argued before the jury that the highest figure it could put on a scar revision was $1,375 testified to by Dr. Slutsky, and the only figure it could put on a dermabrasion was the $650 testified to by Dr. Nahai. We agree. The doctors’ testimony was that plaintiff was charged $1,514 by Dr. Slutsky, that Dr. Nahai performed three scar revisions and one dermabrasion, that Dr. Dixon performed two scar revisions, and that it was very likely that a dermabrasion would also be needed. Consequently, plaintiff only proved medical expenses with reasonable certainty in the amount of $9,689 ($1,514 plus $6,875 for five scar revisions plus $1,300 for two dermabrasions).

The photographic evidence admitted by plaintiff shows a rather large scar on her left cheek. The doctors testified that it would be permanent. The extremely painful surgical procedures, requiring local anesthetic and pain medication, were performed at six-month intervals over a period of years. Plaintiff testified that, in addition to the effect on her appearance caused by the scar and the physical pain she has endured, her recreational activities have been restricted, and she has been required to spend her last year of high school and entire college years undergoing surgical procedures and the complications and healing periods which followed.

Other evidence will be reviewed insofar as is necessary for a consideration of the issues raised.

1. Defendants contend that the trial court erred in denying their motion for j.n.o.v. or new trial on the ground that the evidence does not support a $22,000 award of medical expenses.

A plaintiff seeking to recover special damages for medical expenses has the burden of proving his losses in such manner as can permit calculation thereof with a reasonable degree of certainty. Lester v. S. J. Alexander, Inc., 127 Ga. App. 470 (1, 2) (193 SE2d 860) (1972); Glennville Wood &c. Co. v. Riddlespur, 156 Ga. App. 578, 581 (4) (276 SE2d 248) (1980); see Daugherty v. Vick, 127 Ga. App. 767, 769 (3) (195 SE2d 208) (1972) (as to future medical expenses). This generally requires evidence that medical expenses in a certain amount were incurred in connection with treatment of the injury involved in the subject litigation. Compare Glenville Wood, supra, with Lester, supra, and Daugherty, supra.

The jury’s award of $22,000 in medical expenses should have been reduced by $12,311. “The trial court did not err in overruling the motion for judgment notwithstanding the verdict on the . . . motion for a new trial except as to [this] issue. . . .” Co-op Cab Co. v. Arnold, 106 Ga. App. 160, 164-165 (126 SE2d 689) (1962).

2. Defendants contend that the trial court erred in denying their motion for j.n.o.v. or new trial on the ground that the jury’s award to plaintiff of $200,000 for pain and suffering was excessive.

“The question of damages is . . . one for the jury; and the court should not interfere with the jury’s [discretion] unless the damages [are either so small] or so excessive as to be inconsistent with the preponderance of the evidence in the case.” OCGA § 51-12-12 (a). “The only guideline for awarding damages for pain and suffering is the enlightened conscience of an impartial jury. [Cits.] If the award is not so flagrant as to ‘shock the conscience,’ it will not be disturbed on appeal. [Cits.]” Stover v. Atchley, 189 Ga. App. 56, 57 (2) (374 SE2d 775) (1988).

The amount of the jury’s award here is not so flagrant as to shock the conscience.

3. Defendants contend that the trial court erred in denying their motion for directed verdict, made at the conclusion of plaintiff’s casein-chief and renewed at the conclusion of the evidence, on the issue of John Whitley’s liability for his daughter’s negligence under the family purpose doctrine.

Defendants argue that plaintiff’s evidence was insufficient to withstand a motion for directed verdict on the family purpose doctrine; that Vanessa’s mother, not her father, owned the vehicle and gave Vanessa permission to drive; and that, at the time of the accident, she was not engaged in a family purpose.

Vanessa Whitley testified on cross-examination during plaintiff’s case-in-chief that she had previously admitted that her parents owned the vehicle she was driving at the time of the accident. Vanessa later testified that the car she was driving was her mother’s car and that the accident occurred when she was on an errand for her employer. During defendants’ case-in-chief, Vanessa testified that her family had three cars: a Honda Prelude that her mother drove, a family car that she and her sisters shared, and her father’s car that he used in his business. She asked to borrow her mother’s car because it was smaller and easier for her to drive. However, her mother rarely let her use that car.

Vanessa’s father testified on cross-examination during plaintiff’s case-in-chief that he and his wife purchased the vehicle together. During defendants’ case-in-chief, he testified that he and his wife purchased the car together with funds from a joint account. They both worked and both made deposits to the account. The car was titled in her name and maintained by her. He seldom drove it, did not have a set of keys to it, and considered it her car. Both Mr. Whitley and his wife testified that if the children wanted to use the Honda, they would ask her permission and not his.

The Honda was insured in Mr. Whitley’s name under a policy entitled a family combination automobile policy. Portions of this policy were admitted in evidence as a defense exhibit.

“ ‘To come within the application of the [family purpose] doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use, rather than for use in his business. (Cits.) Nevertheless, the principal factor is authority and control of the vehicle, and this is not necessarily determined by title ... or payment for the expenses of operation. (Cit.) Agency, not ownership, is the test of liability. (Cits.) Thus, in a family purpose situation the crucial issue may be whether the defendant supplied or furnished the vehicle for family purposes. (Cit.) . . .’ [Cit.]” Quan v. Johnson, 190 Ga. App. 510 (379 SE2d 426) (1989).

Decided July 6, 1993 —

Reconsideration denied July 16, 1993 —

“ ‘ “Under (the . . .) doctrine, the owner of an automobile who permits members of his household to drive it for their own pleasure or convenience is regarded as making such a family purpose his ‘business,’ so that the driver is treated as his servant.” [Cit.]’ [Cit.]” Shank v. Phillips, 193 Ga. App. 393 (1) (388 SE2d 5) (1989). The car must be found to have been driven with the permission or acquiescence of the defendant, although his consent may be inferred or implied. Finnocchio v. Lunsford, 129 Ga. App. 694, 695 (2) (201 SE2d 1) (1973); accord Hubert v. Harpe, 181 Ga. 168, 171 (182 SE 167) (1935). Where a child uses a vehicle to go to and from work, no question exists that the vehicle is being used for a family purpose. Shank, supra at 394.

The fact that the vehicle was purchased by the father and mother with joint funds, and that it was insured by the father under a family insurance policy, authorized the jury to find that the father had a recognized property interest in the vehicle at the time of the accident, that he made it available for family use, and that the daughter was driving it with his acquiescence or implied consent. As in Murch v. Brown, 166 Ga. App. 538, 540 (304 SE2d 750) (1983), “[t]he evidence further creates an inference that defendant had the right to exercise authority and control over the use of the vehicle.”

4. Defendants contend that under former OCGA § 33-34-9 (b) the trial court erred in failing to reduce the judgment by $2,500 received by plaintiff in no-fault medical-expense benefits.

Plaintiff disputes that she was eligible for such benefits, and defendants have failed to present contrary evidence. The burden is on the appealing party to show error from the record. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16) (1981) (overruling Holloway v. Giddens, 239 Ga. 195 (236 SE2d 491) (1977), relied upon by appellants). Defendants have not carried this burden.

Judgment affirmed on condition $12,311 is written off; otherwise reversed.

McMurray, P. J., and Cooper, J., concur.

Parkerson, Shelfer & Connell, William S. Shelfer, Jr., for appellants.

Robert S. Devins, for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A0744.
    TEMPLEMAN v. EARNEST.
    (434 SE2d 106)
   Birdsong, Presiding Judge.

Samuel James Templeman appeals a superior court judgment changing the custody of his minor children. He contends that custody of the children was changed without a material change of circumstances affecting their welfare and that the change of custody is not in the best interest of the children.

The record shows that when Templeman and his ex-wife, Vanita Robin Earnest, were divorced in 1988, custody of the children was granted to Earnest. Then, in 1989, allegedly because the mother felt she could not properly care for the children, the court changed custody of the children to Templeman. While the parties agree that this change of custody was made with the agreement of the parties, they do not agree on the reason for the change.

Earnest again sought to change custody from Templeman to herself. She asserts that a change of custody was warranted because she could now take care of the children properly since she has recovered from illness, is employed, and has remarried. She also alleges that the children’s circumstances had changed with Templeman because at the time he was granted custody he was not married, but since he was awarded custody he has lived with two women, one of whom he later married.

After conducting a hearing on the petition, the trial court made the following findings concerning a material change of conditions: “All right. At the time of the last modification the parties were in agreement. At the time of this modification they are not in agreement. That is a change of circumstance. Warring parents are not the same for the welfare of the children as peaceful parents. The time of the last modification was April 5, of ‘89. On April 5 of ‘89 the income of the mother was different. The living conditions of the father were different than they are today. That’s it.”

Based upon these findings, the court awarded the parties joint custody of the children and directed that every other year each party would have physical custody of the children. Upon Templeman’s objection to this award, the court replied, “It’s not the court’s opinion that children are better being swapped from custody to custody. . . I’m making the order of the court what the parents have been engaging in. I’m just putting it on a permanent basis.” Held:

Decided July 2, 1993 —

Reconsideration denied July 16, 1993 —

Cowen & Cowen, Linda S. Cowen, for appellant.

Ferguson & Ferguson, Monroe Ferguson, for appellee.

Before custody of the children can be changed, the trial court must find that, since the last award, there has been a material change of . condition affecting the well being of the children. OCGA § 19-9-1 (b); Johnson v. Hubert, 175 Ga. App. 169, 170 (333 SE2d 21). The findings by the superior court do not satisfy these criteria. Danner v. Robertson, 221 Ga. 516, 517 (145 SE2d 554). Moreover, even if the trial court’s findings could be sustained, the award of joint custody with alternating physical custody cannot be sustained. The trial court has an independent duty in these cases to make an award of custody that is in the best interest of the children (OCGA § 19-9-3 (a)) and is not authorized to merely ratify the practices of the parties. See OCGA § 19-9-5; Mock v. Mock, 258 Ga. 407 (369 SE2d 255).

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


author: Beasley, Presiding Judge. McMurray, Presiding Judge,

text:
    A93A0760.
    THOMPSON et al. v. PULTE HOME CORPORATION.
    (434 SE2d 89)
   Beasley, Presiding Judge.

Pulte Home Corporation sued Richard Thompson and Marguerita Thompson, alleging the Thompsons damaged Pulte’s business reputation, interfered with its contractual relations and violated restrictive covenants by posting defamatory yard signs and making false statements about Pulte’s business practices and products. The Thompsons counterclaimed, alleging that Pulte duped them into purchasing a substandard house.

On October 2, 1991, the Thompsons went with their attorney (Eaton) to the law office of Pulte’s attorney (LaChance) to discuss settlement. During negotiations, the Thompsons agreed to sell their house in exchange for Pulte’s promise to make repairs and pay for any loss resulting from the subsequent sale, based on the Thompsons’ initial capital expenditure. The negotiations also included the Thompsons’ promise to stay away from the house during renovation, estimated at 21 days; Pulte’s promise to pay for the Thompsons’ food and lodging expenses during renovation; and mutual agreements to dismiss the case after sale of the house.

The next day, Pulte’s motions for contempt, interlocutory injunction, realignment of parties and expenses of litigation plus attorney fees came on for hearing. The parties’ attorneys announced that settlement had been reached and it would be reduced to writing and filed with the court. In exchange for the Thompsons’ consent, by attorney Eaton, to an order granting Pulte’s motions for interlocutory injunction and to realign parties, Pulte withdrew the motions for contempt and expenses of litigation.

On October 11, LaChance forwarded a draft settlement agreement to Eaton. It evidenced all but one issue resolved by the parties during settlement negotiations, i.e., the Thompsons’ daily allowance for living expenses during renovation. Eaton responded via telefax the same day: “I have reviewed the proposed settlement agreement and find it agreeable except Item (D) which allows for $75.00 per day for food, lodging etc. During our discussions we spoke of the Ramada Rennisance (sic) and Airport Marriot (sic). I inquired at both of these and the Ramada is the least at $90.00 per night. In additional (sic) there needs to be an allowance for Food for (2) persons. Give me your thoughts on this.”

Sometime after October 16, LaChance sent Eaton a revised version of the unexecuted settlement agreement, providing the Thompsons with a $100 per day allowance for expenses during renovation. The Thompsons refused to execute the revised settlement contract and, in a letter dated December 16, Eaton informed LaChance that he would be withdrawing as counsel and that the Thompsons had “instructed [him] to reject any further effort with regards to settling this case.”

Pulte moved to enforce the settlement agreement with the $100 per day expense allowance. The Thompsons responded, alleging that they did not enter into a definite, certain, and unambiguous settlement agreement with Pulte and that Eaton had no authority to settle the case without their consent. The court granted Pulte’s motion and ordered the Thompsons to pay $500 in attorney fees for bringing a frivolous action.

1. The undisputed evidence shows the existence of a binding agreement. This case turns on basic principles of contract formation and enforcement. The Thompsons actively participated in the negotiations which culminated in a compromise and settlement agreement as to all issues in the pending litigation. This is confirmed by their own attorney’s deposition testimony. The discussion and understanding with respect to the per diem allowance was that it would be adequate to cover lodging and food. A specific amount was not stated. The terms of the settlement were acceptable to the Thompsons; a handshake cemented their understanding. Each party assented to the terms. OCGA § 13-3-2. All that remained was the formality of reducing those terms to written form. The court was apprised on the following day by counsel for both parties that the matter had been settled.

Pulte’s attorney drafted the written document memorializing the understanding of the parties. All material terms were accepted by the Thompsons’ attorney except for the dollar amount of the per diem reimbursement, which Pulte agreed to increase to an amount reasonably adequate to cover the expenses agreed upon.

Both Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983) and LeCroy v. Massey, 185 Ga. App. 828, 829 (366 SE2d 215) (1988), relied upon by appellants, concern settlement agreements between counsel for the parties in which the existence of an agreement was contested. Here the parties negotiated their own settlement. Likewise, OCGA § 15-19-5 is inapplicable. It requires agreements between counsel to be in writing in order to bind their clients. USCR 4.12 provides that “[a]n attorney of record has apparent authority to enter into agreements on behalf of his client(s) in civil actions. Oral agreements, if established, are enforceable.” Kapiloff v. Askin Stores, 202 Ga. 292 (42 SE2d 724) (1947), affirmed that oral settlement agreements are enforceable. Such “contract exists [when] all essential terms have been agreed to. OCGA § 13-3-2.” Bridges v. Bridges, 256 Ga. 348, 349-350 (1) (349 SE2d 172) (1986).

The oral agreement at issue here was reduced to writing, submitted to the Thompsons, and accepted by their attorney. The trial court was correct in concluding as a matter of law that the Thompsons were bound by a definite, enforceable agreement which they may not now arbitrarily deny. “Findings of fact by the court will not be set aside by an appellate court unless ‘clearly erroneous.’ [Cits.]” Greene v. Colonial Stores, 144 Ga. App. 645, 647 (2) (242 SE2d 489) (1978). As in Greene, “[tjhe oral agreement was legally enforceable.” Id. at 647.

2. The record supports the trial court’s sua sponte award of $500 under OCGA § 9-15-14 (b) for a frivolous action. The court did not abuse its discretion. Haggard v. Bd. of Regents, 257 Ga. 524 (360 SE2d 566) (1987).

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Cooper, Andrews, Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as my examination of the record reveals evidence giving rise to genuine issues of material fact regarding the existence of a settlement contract. In fact, my examination of the record reveals proof that the parties never resolved a material issue of dispute and thereby failed to reach a binding settlement agreement. •

Apparently accepting only the testimony of Pulte’s attorney (LaChance), the majority holds that the parties entered into a binding settlement agreement at the October 2, 1991, settlement conference. This view ignores attorney Eaton’s testimony that any settlement agreement (oral or written) “was dependant upon the written agreement being suitable to all of the parties. . . .” The majority view also ignores the affidavit of Ben F. Marsh, an eyewitness to the October 2, 1991, settlement conference who deposed that the parties agreed during negotiations that settlement would not be final until execution of a written agreement. Specifically, as quoted from his affidavit, Ben F. Marsh deposed that he attended the October 2, 1991, settlement conference; that he “overheard the participants discuss the fact that no final conclusions would be reached at the meeting [and that it] was discussed that any decisions which were reached at the meeting would be put in writing, submitted by the attorneys to the parties for their review and would be signed by the parties before they would become binding.” It is my view, that the above evidence gives rise to genuine issues of material fact regarding the very existence of a settlement agreement between the parties. See Devereaux v. C & S Nat. Bank, 172 Ga. App. 53 (322 SE2d 310). However, assuming the contrary, it is my view that the unresolved issue of the Thompsons’ per diem expense allowance during renovation is proof that the parties never entered into a binding settlement agreement.

In Bridges v. Bridges, 256 Ga. 348 (349 SE2d 172), the Georgia Supreme Court held that no settlement “contract exists until all essential terms have been agreed to. OCGA § 13-3-2.” Id. at 349 (1). The Supreme Court found in Bridges that the parties’ failure to resolve a dispute over a “VCR” was material to settlement and held that the trial court erred in enforcing an intricate settlement agreement which had otherwise been approved by the opposing parties. Bridges v. Bridges, 256 Ga. App. 348, 349 (1), supra. In view of this holding, I cannot say that the Thompsons’ per diem expense allowance during the estimated 21-day renovation period was immaterial to settlement and I do not agree that Pulte’s $100 per day settlement offer (contained in the settlement contract Pulte now seeks to enforce) fills this gap.

Neither this court nor the trial court has authority to enforce a term of settlement that was never resolved by the parties. However, this is the impact of the majority holding as this court is affirming enforcement of a provision of a settlement contract (unilaterally prepared by Pulte) that was never resolved by the parties, i.e., the amount of the Thompsons’ per diem expense allowance during the estimated 21-day renovation period. Under these circumstances, I would reverse the trial court’s order enforcing settlement and awarding Pulte $500 in attorney fees pursuant to OCGA § 9-15-14.

Decided July 1, 1993 —

Reconsideration denied July 16, 1993 —

Robert M. Goldberg, for appellants.

Peterson, Dillard, Young, Self & Asselin, Richard W. Wilson, Jr., James M. Lachance, Mayer & Beal, Andrew M. Beal, for appellee.


author: Andrews, Judge.

text:
    A91A1573.
    VLAHOS v. SENTRY INSURANCE COMPANY.
    (435 SE2d 528)
    Decided July 16, 1993.

      Zipperer & Lorberbaum, Ralph R. Lorberbaum, for appellant.

      Karsman, Brooks & Callaway, R. Kran Riddle, for appellee.
   Andrews, Judge.

In Vlahos v. Sentry Ins. Co., 203 Ga. App. 540 (417 SE2d 180) (1992), we affirmed the trial court’s grant of summary judgment to Sentry Insurance Company. The Supreme Court granted certiorari and reversed our decision in Vlahos v. Sentry Ins. Co., 262 Ga. 737 (426 SE2d 350) (1993). Accordingly, our decision in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Blackburn and Smith, JJ., concur. Johnson, J., not participating.


author: Smith, Judge. Blackburn, Judge,

text:
    A93A0015.
    COLONIAL PENN LIFE INSURANCE COMPANY v. MARKET PLANNERS INSURANCE AGENCY, INC. et al.
    (434 SE2d 124)
   Smith, Judge.

Colonial Penn Life Insurance Company (Colonial Penn) brought suit against Market Planners Insurance Agency, Inc. and Jimmy Whited in the State Court of Fulton County. No timely answer was filed. When the defendants did file an answer, they simultaneously moved to open the pre-judgment default. The reason given for the failure to file an answer was their mistaken belief that the complaint in this case was precisely the same as a substantively identical complaint filed by plaintiff in federal court in Texas.

Applying OCGA § 9-11-55 (b), the trial court found a proper case had been made to permit defendants to open their pre-judgment default and granted their motion. However, the order was certified by the trial court for immediate review, plaintiff’s application for interlocutory appeal was granted by this court, and this appeal from the order of the trial court opening appellees’ pre-judgment default followed.

With reference to this Code section and its predecessors, the Georgia Supreme Court has said, “the wording ... is such that it conveys very ample powers as to opening defaults; not only providential cause, which is broad, and excusable neglect, which is still broader, but finally, as if reaching out to take in every conceivable case where injustice might result if the default were not opened, the section goes on to say, where the judge from all the facts shall determine that a proper case has been made.” (Citations and punctuation omitted.) Axelroad v. Preston, 232 Ga. 836, 837 (1) (209 SE2d 178) (1974). Colonial Penn relies upon the case of Sanders v. American Liberty Ins. Co., 225 Ga. 796, 797 (171 SE2d 539) (1969), as authority for the proposition that a party’s mistaken belief that but one suit was represented by two complaints and that a second complaint need not be answered, “fall[s] short of making a case where the trial court would have a discretion [even under the ‘proper case’ standard to open the pre-judgment default]. [Cits.]”

We do not find Sanders to be controlling. The analysis employed there has been superseded by a broader statutory construction of the “proper case” prong of OCGA § 9-11-55 (b) applied by the Supreme Court and this court in subsequent decisions. In Houston v. Lowes of Savannah, 235 Ga. 201, 202-203 (219 SE2d 115) (1975), the Supreme Court declined to follow Sanders and other cases with similar holdings and adopted the reasoning in Axelroad, finding it to be “the most persuasive decision.” In doing so, the Supreme Court specifically overruled several of its earlier decisions, including Brucker v. O’Connor, 115 Ga. 95 (41 SE 245) (1902), which was the basis for the holding in Sanders. “If the record sustains the decision to open default under any of the three grounds noted in the statute (providential cause, excusable neglect, and a proper case), this court will affirm the trial court’s action. [Cit.]” P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328, 329 (1) (329 SE2d 545) (1985).

In this case, since defendants reasonably believed that they already had answered the same complaint, the trial court was authorized to conclude that their failure to file a timely answer was not a wilful disregard of all court process. Moreover, Colonial Penn has failed to show on appeal how it will be unfairly disadvantaged by a hearing on the merits. “[T]he trial court did not abuse its discretion, under the ‘proper case’ ground [of OCGA § 9-11-55 (b)], in granting [appellees’] motion to open the [pre-judgment] default. [Cits.]” Copeland v. Carter, 247 Ga. 542, 543 (1) (277 SE2d 500) (1981).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Cooper and Andrews, JJ., concur. Beasley, P. J., concurs in the judgment only. Pope, C. J., and Blackburn, J., dissent. Johnson, J., not participating.

Blackburn, Judge,

dissenting.

In this case, the appellees were originally served with a complaint filed by the appellant in federal court in Texas, with the civil action number 3-91CV2063-G. An answer was timely filed. Approximately one month later, the appellant commenced this action against the appellees in the State Court of Fulton County, with the civil action number 91-VS45311A, involving the same subject matter as the Texas lawsuit. However, the appellees never filed an answer because of its mistaken belief that the Georgia state court action was the same action as the Texas federal court action. I cannot agree with the majority opinion’s finding that under these circumstances, the appellees “reasonably believed that they already had answered the same complaint.”

In Sanders v. American Liberty Ins. Co., 225 Ga. 796, 797 (171 SE2d 539) (1969), the Supreme Court held that the defendant’s explanation that it failed to answer a second complaint because of a mistaken belief that it was the same lawsuit previously answered, did not show “that the defendant’s neglect was excusable, or made a proper case for the default to be opened.” In Sanders, the lawsuits had different plaintiffs but with the same last name, and the actions were filed in the same court, with consecutive civil action numbers, but the Supreme Court was unswayed by such factors.

In the instant case, in mistaking the second complaint filed in the Georgia state court as the same lawsuit previously answered in the Texas federal court, the appellees are in a much weaker position than the defendant in Sanders. The majority opinion rationalizes its acceptance of their explanation by stating that the “proper case” basis for opening default in Sanders was subsequently expanded in Axelroad v. Preston, 232 Ga. 836 (1) (209 SE2d 178) (1974), and Houston v. Lowes of Savannah, 235 Ga. 201 (219 SE2d 115) (1975). However, Axelroad and Houston both merely solidified the “proper case” analysis as a third ground for opening default, and thus approved the consideration of that third ground in Sanders.

The majority opinion attempts to deprecate Sanders by pointing out that in Houston, the Supreme Court overruled Brucker v. O’Conner, 115 Ga. 95 (41 SE 245) (1902), which, according to the majority opinion, was the basis for the holding in Sanders. However, the court in Sanders simply held that the facts before it did not establish providential cause, excusable neglect, or otherwise a proper case for opening a default, which was the proper analysis, and merely quoted Brucker as another example of where facts demanded finding the lack of any basis for opening a default. In Houston, the Supreme Court overruled Brucker to the extent that some language contained therein was susceptible of being read as holding that the Code provided only one ground for opening a default, but it did not criticize Sanders.

Decided July 16, 1993.

Drew, Eckl & Farnham, Paul W. Burke, Jerry C. Carter, Jr., for appellant.

Chambers, Mabry, McClelland & Brooks, Jan P. Cohen, F. Scott Young, for appellees.

Sanders correctly identified the three possible bases for opening a default, and is consistent with the rule stated in Axelroad and Houston. However, under the circumstances in Sanders, the Supreme Court concluded that no basis existed for opening the default. As discussed above, the facts in the instant case present a much weaker case for opening a default than those considered in Sanders. Accordingly, Sanders should control the instant case, requiring reversal of the trial court’s order reopening the default in this case. For that reason, I must respectfully dissent.

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


text:
    A93A0060.
    In the Interest of J. L. G., a child.
    (434 SE2d 126)
   Smith, Judge.

After appellant’s motion to suppress 92 individually wrapped rocks of crack cocaine was denied, he was adjudicated delinquent and committed to the custody of the Youth Detention Center. He appeals from the denial of his motion to suppress the cocaine and the adjudication of delinquency and disposition of commitment entered by the juvenile court.

In his motion to suppress, appellant contended that his warrant-less arrest was illegal because the police lacked probable cause to believe that he had committed any crime. The denial of this motion is appellant’s sole enumeration of error.

Only the arresting officer testified at the hearing on the motion to suppress. He and his partner received a radio dispatch that an unidentified caller reported two suspicious black males at a specified block in Covington, Georgia, near a residential apartment complex. One was identified as wearing pants but no shirt, the other as being on a bicycle and possibly being in possession of a small handgun. Within minutes of the dispatch, the officers arrived at the named location and saw appellant, wearing pants but no shirt, standing alone by the street. When appellant saw the police car, he stuck his hand in his pocket, turned away from the officers, and crossed the street in front of their vehicle. When the officers began exiting the vehicle, appellant broke into a run, refusing the command to halt. Appellant was tackled and while he was being subdued, numerous small packages of cocaine were discovered on the ground where he had fallen.

“[T]he trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cits.]” Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). “Where there is evidence to support the decision of a trial judge on motion to suppress evidence, that decision will not be disturbed on appeal. [Cits.]” (Emphasis supplied.) Orkin v. State, 236 Ga. 176, 189 (3) (223 SE2d 61) (1976).

Contrary to appellant’s arguments, the police did not need probable cause to arrest in order to approach and question him. “ ‘[N]ot all seizures of the person must be justified by probable cause to arrest for a crime. . . . (C)ertain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime. . . . [Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.’ [Cits.]” (Emphasis omitted.) Jones v. State, 187 Ga. App. 421, 423 (370 SE2d 784) (1988). No evidence was presented that any person but appellant matched the description of a black male wearing pants but no shirt at that exact block at that time.

When appellant turned and appeared to hide something upon first seeing the police, the officers were reasonably authorized to believe that it might be appellant who possessed the gun warned of in the anonymous tip. As soon as the police began to leave their vehicle, appellant began to run. “This attempt to leave . . . was assessable as flight, which being evidence of consciousness of guilt ([cit.]) in the circumstances gave rise to an ‘articulable suspicion’ that [appellant] was engaged in criminal activity and authorized police to stop [appellant] briefly for investigation. Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search ([cit.]). . . . The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause for arrest simply to shrug his shoulders and allow a criminal to escape.” State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992). “ ‘(A) reasonable search for weapons for the protection of the police officer, (is permitted) where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ [Cit.]” (Emphasis supplied.) Smith v. State, 139 Ga. App. 129, 131 (2) (227 SE2d 911) (1976).

Contrary to the dissent’s assertion, we do not hold that either an anonymous tip alone or flight alone warrants a forcible stop. Rather, we apply the well-established principle that “[f] light in connection with other circumstances may be sufficient probable cause.” State v. Smalls, supra at 286. In this case, the anonymous tip mentioned the presence of a handgun and already had proven accurate in several respects; appellant fled in apparent direct response to the police leaving their patrol car; and the appellant placed his hand in his pocket, after noticing the arrival of the police, giving rise to a reasonable suspicion that he might have been reaching for a firearm. The police had a valid basis to detain appellant briefly for the limited purpose of determining whether he was carrying a gun. See State v. Ball, 207 Ga. App. 729 (429 SE2d 258) (1993). Compare Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990) (initial stop invalid because based upon anonymous tip alone). When, during that brief detention, the police observed the cocaine on the ground at the point where appellant had been subdued, the police clearly had probable cause to arrest him for illegal possession of drugs. The juvenile court correctly denied appellant’s motion to suppress.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper and Andrews, JJ., concur. Blackburn, J., dissents. Johnson, J., not participating.

Blackburn, Judge,

dissenting.

I respectfully dissent.

I cannot agree with the majority’s decision that the warrantless intrusion on the appellant’s civil rights was justified. An anonymous tip provided by an unknown caller that a shirtless black male, accompanied by another black male on a bicycle, the latter possibly in possession of a firearm, is insufficient to supply the arresting officers with the articulable suspicion necessary to justify a warrantless intrusion of this nature. The tip from an unidentified source was purely speculative and did not provide a basis for any detention. The fact that a shirtless black teenager is standing on a neighborhood street in May provides no reasonable suspicion that a crime has been committed. The vague description could have readily applied to any number of individuals, from toddlers to the elderly, in the area at the subject time and did not provide any information to indicate that any crime was being committed by such unidentified person. For the reasons discussed below, I conclude that the trial court erred in denying the appellant’s motion to suppress as a matter of law, as the tip provided by the anonymous caller, did not warrant the initial investigatory stop of the appellant.

“ ‘To justify a warrantless intrusion of this nature, the state must be able to point to specific and articulable facts, which, together with rational inferences drawn therefrom, reasonably warrant the intrusion. Terry v. Ohio, supra; (cits.).’ ” State v. Holton, 205 Ga. App. 434, 436 (1) (422 SE2d 295) (1992). “ ‘An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)’ [Cit.]” Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987). “Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.” State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975). Where an investigatory stop is based upon the tip of an anonymous caller, as in the instant case, the state must further show that “the anonymous tip was sufficiently detailed and it was corroborated by the observations of the police.” Holton, supra at 436. See also Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990). In White, the Supreme Court placed great weight on the anonymous caller’s ability to predict White’s future behavior, as it demonstrated inside information, information that the general public would have no way of knowing.

In Johnson v. State, 197 Ga. App. 538, 539 (398 SE2d 826) (1990), this court applied the analysis of White, supra, and invalidated a stop based upon information received from an anonymous informant where “the description of the suspect was general and completely lacking in detail,” and “[t]he tip made no prediction about future behavior by which its reliability could be tested.” Although the tip provided by the anonymous caller in Johnson was more detailed than the tip provided in the instant case and predicted criminal activity, the court concluded that further observation and corroboration was required before a forcible stop was authorized, as “[t]he tip alone ‘provide(d) virtually nothing from which one might conclude that (the caller) is either honest or his information reliable. . . .”’ This court further noted in Johnson, at 539, that “ ‘the (tip) (gave) absolutely no indication of the basis for the (caller’s) predictions regarding (the suspect’s) criminal activities.’ [Cit.]” “ ‘ “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.” (Cit.)’ [Cit.]” Id.

Likewise, in Swanson v. State, 201 Ga. App. 896 (412 SE2d 630) (1991), this court again found that an investigatory stop was unlawful where an anonymous caller reported that a dark-skinned black man wearing a white Kangol hat, a sweater, and jeans, was selling drugs at a specific address, as these facts were easily obtainable, existed at the time of the call, and contained no information demonstrating the caller’s ability to predict the suspect’s future behavior. Further, the tip provided by the anonymous caller “contained no information from which the police could have reason to believe the tipster was not only honest but also well informed enough to justify the stop.” Swanson, supra at 898. Moreover, in Moreland v. State, 204 Ga. App. 218, 219 (418 SE2d 788) (1992), where the police department received an anonymous tip that two black people in a dark red Camaro were selling drugs in a particular area of a small town, this court, citing White, supra, again recognized that such a tip “ ‘ “would not warrant a man of reasonable caution in the belief that a stop was appropriate,” ’ ” as the tip was general and completely lacking in detail.

Based upon the “pale” evidence in this case, Moreland, supra at 219, I find that the police officers did not have an articulable suspicion to warrant the initial seizure of the appellant, which resulted in the appellant’s arrest before the contraband was found. The sole information used by the officers to forcibly stop the appellant was the information received from a dispatcher who processed the information that he received from the unknown caller. The information provided by the unknown informant was general in nature, within the knowledge of anyone in the community, and did not provide a basis for the officers to test the reliability or honesty of the anonymous tipster. Further, the caller did not indicate that the appellant was engaged in any criminal activity or predict any future criminal conduct. In fact, the officers did not see the other suspect that supposedly possessed a gun. Consequently, further observation and corroboration was necessary before a stop of the appellant would have been justified.

Although the majority asserts that the stop was authorized based upon the appellant’s flight upon seeing an officer, this court, in Harris v. State, 205 Ga. App. 813 (423 SE2d 723) (1992), recognized that flight alone is insufficient to warrant a forcible stop of an individual. Other factual circumstances must be present before flight can provide justification for such a warrantless intrusion, such as objective manifestations of criminal activity, as considered by this court in State v. Smalls, 203 Ga. App. 283 (416 SE2d 531) (1992), which is cited by the majority. Moreover, Smith v. State, 139 Ga. App. 129 (227 SE2d 911) (1976), also cited by the majority, is inapplicable to the facts of this case as the record does not show facts from which the officers could have reasonably inferred that the appellant was armed and danger ous. Although the tip provided information that the other suspect, who was not seen by the officers, possibly had a gun, there is no evidence that the appellant had a gun or was even searched for a weapon.

Decided July 16, 1993.

W. Donald Kelly, for appellant.

Alan A. Cook, District Attorney, Jefferson B. Blandford, Assistant District Attorney, for appellee.

This court’s decision in State v. Ball, 207 Ga. App. 729 (429 SE2d 258) (1993), also discussed in the majority opinion, supports the suppression of the evidence seized from the officer’s unjustified stop of the appellant. The information provided in the tip to the police officer in Ball was quite similar to the tips provided in Swanson, supra, and Moreland, supra. However, the important distinguishing factor in Ball, which was not present in Swanson, supra, Moreland, supra, or in the instant case, is the fact that the officer in Ball recognized the defendant and his car prior to making the investigatory stop, as the defendant had been involved in a prior investigation where drugs were discovered. In addition, the officer in Ball, was able to verify specific details that had been given by the anonymous caller, such as the model and license plate number of the defendant’s car.

“ ‘Reasonable suspicion ... is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” (cit.), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if the tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.’ [Cit.]” Ball, supra at 734.

In Swanson, supra, Johnson, supra, and Moreland, supra, this court repeatedly denounced warrantless intrusions of this nature and should do so in this case as well. I conclude that the juvenile court erred in denying the appellant’s motion to suppress as the officers lacked sufficient evidence that would warrant a man of reasonable caution in the belief that a stop was appropriate. Accordingly, the decision of the trial court denying the appellant’s motion to suppress should be reversed.


author: Smith, Judge.

text:
    A93A0242.
    GIALLANZA REALTY, INC. v. ROSEBUD PROPERTIES, INC. et al.
    (434 SE2d 130)
   Smith, Judge.

Giallanza Realty, Inc. (Broker) brought this action to recover real estate commissions, alleging both contractual and tort theories of liability. Named as defendants were Rosebud Properties, Inc. (RPI) and the Browns (Buyers). Service of process was never effected personally upon Don Hairston, Sr., the president and sole shareholder of RPI. The case was tried before the court without a jury and the broker appeals from a judgment entered in favor of all defendants.

1. The buyers were never contractually liable for any real estate commission and the record is devoid of evidence that they conspired to defraud Giallanza of any commission owed. See Parrish v. Ragsdale Realty Co., 135 Ga. App. 491, 495 (6) (218 SE2d 164) (1975). The trial court correctly entered judgment in favor of the Browns.

2. Although the broker did enter into an agreement with RPI granting the broker the exclusive right to sell the subject property, it does not contend on appeal that its commission is owed pursuant to that listing agreement. Rather, the broker claims entitlement pursuant to a real estate sales contract entered into by the Browns as buyers and RPI as seller on August 3, 1990. Giallanza Realty, Inc. was expressly made a party to this agreement in order to enforce any entitlement to a commission against the seller. This sales agreement contained a financing contingency providing that “[t]his contract is made conditioned [sic] on buyer’s ability to obtain a MAX [handwritten] loan, in the principal amount of $_[left blank].”

The same parties also entered into a lease/purchase agreement on August 3, 1990, incorporating by reference the sales agreement of August 3, 1990. Under the sales agreement, closing was to take place on or before July 31, 1991, that is, approximately one year from the beginning of the lease/purchase agreement. However, prior to these events, Hairston had caused RPI to transfer the property to another of his wholly-owned corporations, Temple Johnson Builders, Inc. (TJBI) for a nominal consideration.

After the Browns were unable to obtain conventional financing for their August 3, 1990, sales agreement, they then entered into a second sales agreement, to which Giallanza was not a party. In this sales agreement TJBI was named as the seller, the sales price was the same as under the first sales agreement which accorded the broker a commission, and the Browns obtained private financing through Hairston’s wife.

The trial court entered judgment in favor of RPI, concluding that the “contract which [Giallanza] seeks to enforce ... is too vague and indefinite” in that the above-referenced contingency clause is “not specific.”

Decided July 16, 1993.

Charles P. Giallanza, for appellant.

Garner & Still, Dennis T. Still, for appellees.

Such a financing contingency is for the benefit and protection of the purchaser. Carroll v. Harry Norman, Inc., 198 Ga. App. 614, 615 (1) (402 SE2d 357) (1991). Its provisions may be waived and such waiver would “not provide a basis for the vendor to renege on the real estate sales contract” to the detriment of the broker. Prestige Realty Co. v. CM & W Constr. Co., 177 Ga. App. 843, 844 (341 SE2d 321) (1986). The trial court apparently concluded that the breadth of the finance options indicated a lack of that mutuality required for a binding contract. This is clearly erroneous. Under Georgia law the purchasers have an implied duty to exercise due diligence and good faith in seeking to have the financing contingency take place. Because of this implied duty, a contract for the sale of real property which is conditioned upon the purchaser’s ability to obtain a loan is not unenforceable for lack of mutuality of obligation. Brack v. Brownlee, 246 Ga. 818, 819-820 (273 SE2d 390) (1980). Moreover, the broker does not seek specific performance of this financing contingency, but only claims a right to real estate sales commissions allegedly due after a sale of the specific lot named in the August 3, 1990 sales agreement was actually completed by the same buyers at the same sales price. The judgment in favor of RPI is based upon an erroneous legal theory and must be reversed. Meyers v. Glover, 152 Ga. App. 679, 683 (3) (263 SE2d 539) (1979).

3. As Don Hairston, Sr., was never personally served with process, despite leave of court to do so, there is nothing for this court to affirm or reverse. The judgment entered below does not reach him.

Judgment affirmed in part and reversed in part.

Blackburn, J., concurs. Johnson, J., concurs in the judgment only.


author: Pope, Chief Judge. Andrews, Judge,

text:
    A93A0257.
    DAVIS v. THE STATE.
    (434 SE2d 132)
   Pope, Chief Judge.

Defendant Michael Davis was convicted by a jury of possession of heroin with intent to distribute. He appeals the denial of his motion for new trial.

1. Relying on Pope v. State, 256 Ga. 195 (17) (345 SE2d 831) (1986) and Gadson v. State, 197 Ga. App. 315 (398 SE2d 409) (1990), defendant argues the trial court erred by allowing the State to introduce into evidence certified copies of guilty pleas he entered on previous drug charges because the State failed to establish, upon objection by the defendant, that defendant’s pleas were freely and voluntarily given. Defendant acknowledges, however, that this court previously has “reject[ed] defendant’s argument that the requirements of Pope and Gadson should be extended to include any instance where the State intends to use a prior guilty plea in a criminal prosecution. The holdings of Pope and Gadson specifically apply to the State’s introduction of a prior guilty plea during the sentencing portion of a criminal prosecution, and we will not extend the holdings in the manner suggested by defendant. It is well settled that in order for similar crime evidence to be admissible there must be ‘some evidence establishing that the independent crime was committed by the defendant. The evidence may be circumstantial but it must be more than mere speculation. (Cits.)’ (Emphasis supplied.) Chastain v. State, 260 Ga. 789, 790 (3) (400 SE2d 329) (1991).” McCann v. State, 203 Ga. App. 880, 882 (418 SE2d 144) (1992). Moreover, in this case, as in McCann, there was evidence in addition to the certified copies of the guilty pleas establishing that the defendant was the perpetrator of the prior offenses. Consequently, this enumeration is without merit.

2. Defendant also contends the trial court erred by allowing the arresting officer to testify that the quantity of drugs in defendant’s possession at the time of his arrest was more than a person would possess for personal consumption, arguing that such testimony impermissibly invades the province of the jury on the ultimate issue to be decided in this case, to wit, whether defendant committed the crime of possession of heroin with intent to distribute. In Davis v. State, 200 Ga. App. 44 (2) (406 SE2d 555) (1991) this court held that “knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience,” id. at 46, and that, therefore, expert opinion testimony is admissible on this issue under OCGA § 24-9-67. However, in this case, unlike in Davis where the witness was qualified as an expert “on the ‘uses and activities of drugs on the streetid. at 45, the trial court refused the State’s request to qualify the witness as an expert in “narcotics investigation,” and the State did not otherwise attempt to lay a foundation which would demonstrate that the witness was qualified to testify in the manner allowed. The trial court thus erred in overruling defendant’s objection to the officer’s testimony, and defendant’s conviction must be reversed.

The dissent argues that the trial court, by allowing the complained-of testimony over defendant’s objection, “implicitly” ruled that the witness was qualified as an expert. However, there is absolutely nothing in the record to support such a conclusion. As the dissent acknowledges, when the State initially sought to qualify the witness as an expert the defendant objected on grounds of relevancy and that the State had failed to lay a sufficient foundation as to the witness’ qualifications. The trial court sustained the objection without specifying the basis for its ruling, and this court can only speculate or guess if the court sustained the objection based on lack of relevancy, insufficient foundation or both. All we know from the record is that the court refused the State’s tender of the witness as an expert, and that the trial court never stated or otherwise indicated a retreat from that ruling.

Moreover, even assuming, as the dissent finds, that the record establishes the officer’s qualifications as an expert in narcotics investigation, there is absolutely nothing in the record which demonstrates that the witness was qualified to testify as an expert on drug use. To the contrary, the record shows that before moving to have the witness qualified as an expert in “narcotics investigation” the State merely elicited the fact that the officer attended bi-monthly training sessions, consisting of formal classes and hands-on training, encompassing team deployment and tactical tasks. Before stating his objections to the witness’ qualifications, the defendant requested to voir dire the witness, who testified as follows as to his training as a drug squad officer: “We update ourselves on the basic laws of drugs and we train ourselves, you know, twice a month and stuff. We just go out, like somebody from the academy might come out and give us update classes and stuff [where] they update us on drugs and the different ways that drugs are being distributed throughout the state and the streets and stuff, . . . , the national laws and stuff, . . . , the overall picture of drugs itself, because drugs are constantly changing everyday, things are different. We find out new stuff everyday about how drugs are stored or hidden. . . .” This testimony clearly establishes that the officer’s training, such as it was, was fairly limited in scope and that it did not relate to “the ‘use[ ] ... of drugs on the street.’ ” Davis v. State, 200 Ga. App. at 45.

Lastly, the dissent finds that defendant waived this issue on appeal because none of the stated objections to the testimony at trial went to the officer’s qualifications as an expert. However, as noted by the dissent, the defendant objected, inter alia, on the basis that “[t]he officer is in no position to make a statement like that.” This objection clearly raised the officer’s qualifications to answer the question posed.

3. In light of our holding in Division 2, it is unnecessary for us to address defendant’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Cooper, Blackburn and Smith, JJ., concur. Beasley, P. J., and Andrews, J., dissent. Johnson, J., not participating.

Andrews, Judge,

dissenting..

I respectfully dissent. The trial court did not err by overruling the defendant’s objection to the officer’s expert opinion testimony that ten “hits” of heroin found on the defendant’s person was more than a heroin user would carry for personal consumption.

The State’s first witness was a City of Atlanta police officer, who had been assigned to the “Red Dog” anti-drug squad for over two years. The officer testified that during this assignment he had received formal training in drug law enforcement as well as hands-on tactical experience in narcotics investigation. Based on this testimony, which was the only evidence introduced by the State at the time, the State moved the trial judge to qualify the officer as an expert in narcotics investigation. After being allowed, upon request, to cross-examine the witness, defense counsel objected to the motion on grounds that the State had not. shown any expert testimony from the officer was relevant, and there was not a sufficient foundation. The trial court sustained the objection. The majority concludes that by sustaining this objection the trial judge ruled the officer was not qualified to give expert testimony regarding narcotics investigations. Accordingly, when the trial judge, over defense objection, subsequently allowed the officer to give his expert opinion about the quantity of heroin on the defendant’s person, the majority found reversible error.

I find no contradiction between the trial judge’s initial refusal to formally qualify the officer as an expert, and the judge’s subsequent ruling admitting the officer’s expert opinion testimony. When the State moved for the trial judge to explicitly recognize the officer as an expert, there was no other evidence in the record, and the State offered no explanation, by proffer or otherwise, to show the nature of the expert testimony it sought to introduce, and its relevance to an issue before the court. Under OCGA § 24-9-67, “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” (Emphasis supplied.) “An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates.” (Emphasis supplied.) Tifton Brick &c. Co. v. Meadow, 92 Ga. App. 328, 330-331 (88 SE2d 569) (1955). This means not only must the witness tendered as an expert be qualified by education, training, or experience to render an opinion within the scope of a particular expertise, but the expert testimony sought to be introduced through the witness must be relevant to an issue in the case. If there is no relevant expert testimony to be given, there is no reason to recognize the witness as an expert regardless of how qualified he or she may be. See Lee v. State, 262 Ga. 593, 594 (423 SE2d 249) (1992) (trial court properly sustained objection that expert testimony was not relevant to the issues at trial); Mantegna v. Professional Auto Care, 204 Ga. App. 254, 255 (419 SE2d 43) (1992) (objection to offer irrelevant expert testimony properly sustained); Barnes v. Wall, 201 Ga. App. 228 (411 SE2d 270) (1991) (trial court erred by admitting irrelevant expert testimony).

The trial judge did not rule the officer was not qualified as an expert in narcotics investigations, rather the court sustained the defense objection that the State had not shown the relevance of any expert opinion it sought to introduce through the witness. Since expert opinion testimony, like any other evidence, must be relevant to an issue in the case to be admissible, it was within the judge’s discretion to refuse to formally recognize the witness’ qualifications as an expert until the State demonstrated the relevance of such qualification. In this case, the State subsequently demonstrated relevance by offering the officer’s expert opinion on the quantity of heroin on the defendant’s person, at which time the trial judge overruled defense objections to the expert testimony. The trial judge was not required to make any specific ruling that the officer was an expert prior to ruling on the admissibility of the expert opinion testimony. Howard v. State, 177 Ga. App. 589, 590 (340 SE2d 212) (1986). Since the record otherwise establishes the officer’s expert qualifications, the trial judge’s overruling of defense objections to the expert opinion testimony was an implicit ruling that the court recognized the officer to be qualified as an expert. Stewart v. State, 246 Ga. 70, 75 (268 SE2d 906) (1980).

The defense objected to admission of the expert opinion on grounds that: (1) “[t]he officer is in no position to make a statement like that”; (2) “[it’s] not relevant,” and (3) “that’s up to the jury to decide.” The trial court properly exercised its discretion to determine that the officer was qualified as an expert, overruled the objection, and admitted the expert testimony. See Davis v. State, 200 Ga. App. 44, 45-46 (406 SE2d 555) (1991). On appeal, the defendant argues that the trial court erred by admitting this testimony on an ultimate issue in the case which invaded the province of the jury. “The issue is not whether the opinion would invade the province of the jury, but whether the subject is a proper one for opinion testimony. Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman.” (Citations and punctuation omitted.) Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 392 (414 SE2d 521) (1991). Moreover, when the expert opinion testimony was offered, it does not appear that any of the grounds for objection went to the qualifications of the officer as an expert, so that issue was waived on appeal. Horne v. State, 155 Ga. App. 851, 856 (273 SE2d 193) (1980).

Decided July 16, 1993.

David L. Whitman, for appellant.

Lewis R. Slaton, District Attorney, Anita Wallace, Nancy A. Grace, Assistant District Attorneys, for appellee.

There being no reversible error, the judgment of conviction should be affirmed.

       The officers who arrested defendant for the prior offenses both testified at trial and identified defendant as the perpetrator of those crimes.

       Under most circumstances, the better practice would be to rule whether the witness is an expert only in response to a specific objection that the witness is not qualified to give the opinion sought in a specific question. Otherwise, generally labeling a witness as an “expert” may give improper credence to his testimony. All of this, however, lies in the sound discretion of the trial judge.


author: Cooper, Judge.

text:
    A93A0342.
    CARVER v. KINNETT. SNOW v. KINNETT.
    A93A0343.
    (434 SE2d 136)
   Cooper, Judge.

Appellee brought this action to recover for injuries sustained when the truck and trailer he was driving collided with a herd of cows, allegedly owned by appellants, Joel Carver and Ronnie Snow, which were in the right-of-way. Appellee contends appellants were negligent in maintaining the proper fencing to keep their cows off the right-of-way. At the end of appellee’s case, appellant Carver’s motion for directed verdict was denied, and after appellant Snow rested his case, his motion for directed verdict was also denied. A jury trial resulted in a verdict for appellee in the amount of $39,586.48. The trial court denied appellants’ motions for judgment n.o.v., or in the alternative, motions for new trial, and this appeal followed.

1. Appellants contend the trial court erred in denying their motions for judgment n.o.v., or in the alternative, motions for new trial because there was no evidence of their negligence. “ ‘(A) motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.’. . . [Cit.]” Austin v. Kaufman, 203 Ga. App. 704, 707 (1) (417 SE2d 660) (1992).

Viewed in the light most favorable to appellee, the evidence reveals that appellee was traveling on Highway 268 at night when he collided with a herd of approximately 20-25 cows which were situated in the right-of-way and on the shoulders of the road. Appellee suffered a sprained back, and three of the cows were killed upon impact. Both Carver and Snow admitted their cows had strayed from their properties on numerous prior occasions in addition to the night of the accident. Shortly after his arrival at the scene of the accident, Carver’s son, Terry, drove all the cows into Carver’s pasture. Witnesses testified that Carver’s cows weighed at least 700 pounds and had yellow or red tags on their ears and that Snow’s cows were considerably smaller with no tags. Terry Carver testified that at least one of the dead cows looked like one of his father’s cows. However, none of the people who saw the dead cows and testified at trial saw tags in the cows’ ears. Üpon his arrival at the accident site on the following morning, Snow claimed ownership of the three dead cows. He then proceeded to drive 13 cows from Carver’s pasture back to his property. At trial, contrary to his initial admission of ownership of the dead cows, Snow testified that after he drove the cows back onto his property, he determined that no cows were missing from his herd of 18 or 19 after the accident. Snow also testified that he inspected his fences once a week or every two weeks and that on the morning following the accident, he discovered that a chinaberry tree had fallen across a portion of his fence which he claimed enabled his cows to escape on the night of the accident. Snow testified that the tree had fallen on the night of the accident. However, he did not see the tree fall, and he admitted that there were no unusual weather conditions that night.

Carver testified that he was out of town on the night of the accident; that upon his return home, he determined that none of his cows was missing; that he inspected his fences at least once a week; and that after the accident, he discovered that his cows had torn down a portion of his fence. Carver indicated that it appeared as though cows on both sides of the fence had been fighting and in the process tore the fence down.

Appellee offered the testimony of James Spires as proof that Carver and Snow were negligent in maintaining the fences on their properties. Spires testified that although the height of a fence may vary, depending on the size of the cows one has, a fence should typically be between 55 and 58 inches tall to prevent a cow from placing its head over or through a fence; that once a cow determines that its head can fit through a fence, it is likely to attempt to walk through the fence; that while the barbed wire across the top of Carver’s fence was fairly tight, the mesh wire underneath sagged, making it possible for a cow to get its head under the barbed wire and over the fence; and that the height of the fence up to the barbed' wire was only approximately 46 inches. When asked whether Carver’s fence was adequate to contain the cows, Spires opined that it would be questionable because the fence was not tall enough, the mesh was not tight enough, and the mesh did not extend to meet the barbed wire. He indicated that it appeared as though a cow had already placed its head through the fence. On cross-examination, Spires admitted seeing Carver’s fence for the first time six months after the accident; however, there was no evidence that the fence looked any differently at the time of the accident.

Regarding Snow’s fence, Spires testified that it was in worse shape than Carver’s fence; that it was inadequate to keep the cows in; that the fence showed years of wear; that the fence was broken in certain places; that trees had grown into the fence; and that it appeared as though parts of the fence had been abandoned. In addition, the evidence reveals Snow had received numerous complaints in the past regarding the escape of his cows and that prior to the accident at issue, one of Snow’s cows escaped and was hit by Carver.

“ ‘The mere fact that livestock is running at large permits an inference that the owner is negligent in permitting the livestock to stray; but when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock, that permissible inference disappears.’ [Cits.] For the evidence to require a verdict for the defendant it must demand a finding that he was not negligent in any respect. A jury question reappears in the case where, although evidence of facts showing ordinary care on his part have been introduced, other facts would support a contrary inference.” Wilkins v. Beverly, 124 Ga. App. 842 (186 SE2d 436) (1971). Carver and Snow suggested non-negligent explanations as to how their cows escaped from their properties; however, these explanations were not based on their personal knowledge of the escapes “but constituted only [appellants’] opinion [s] based on [their] examination [s] of the fence [s] and the [cows] after the collision had occurred. ‘(A)ny witness may give his opinion if he testifies to the facts on which such opinion is based . . . , but in no case where the facts are before the trior of facts can it be said that a [verdict] is demanded . . . based upon the opinions expressed, for the trior of facts may arrive at a different conclusion based upon the evidence introduced and is not bound by the opinion testimony. (Cits.)” Nichols v. Frey, 185 Ga. App. 829, 830 (366 SE2d 212) (1988). There was evidence of appellants’ negligence in maintaining their fences other than the mere fact that the cows strayed in the road. The jury was obligated to weigh this evidence and determine the credibility of the witnesses. Tucker v. Love, 200 Ga. App. 408, 409 (2) (408 SE2d 182) (1991). We cannot conclude that the evidence demanded a verdict for appellants. Accordingly, the trial court did not err in denying appellants’ motions for judgment n.o.v. Austin, supra; Green v. Heard Milling Co., 119 Ga. App. 116 (1) (166 SE2d 408) (1969).

2. Appellants next enumerate as error the trial court’s refusal to allow appellants to introduce evidence that appellee received $175 per week in workers’ compensation benefits for the purpose of impeachment after appellee testified at trial that as a result of the accident, he had no alternative but to go on food stamps. Appellants contend that appellee’s unrebutted testimony was highly prejudicial and left the jury with a biased impression of appellee’s true financial condition. The evidence before the jury indicated that appellee was married with three children; that he was unable to work due to the accident for thirty-eight weeks; that prior to the accident he earned $528 per week; that he exhausted his savings; and that he was on food stamps for approximately one year. Appellants point to no testimony in which appellee represented that he had no income or showed that he defrauded the government in obtaining food stamps. Thus, the trial court held that the evidence regarding appellee’s receipt of workers’ compensation was not proper impeachment testimony. The court concluded that because appellee qualified for food stamps and there was no evidence that he defrauded the government, the evidence of his receipt of other income did not negate the fact that he was poor enough to qualify for food stamps. We agree. Thus, the trial court did not abuse its discretion in refusing to allow the admission of the evidence.

3. Appellant Carver also enumerates as error the admission of a syringe and needle which appellee testified were similar to syringes and needles used in the treatment of his back. Carver argues that the admission of the needle was highly prejudicial and inflammatory because the evidence was admitted without a proper foundation, was not the actual equipment used in his treatment and had no probative value. “ ‘ “Admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” ’ [Cit.]” Candler v. Davis & Upchurch, 204 Ga. App. 167, 170 (4a) (419 SE2d 69) (1992).

Appellee sought to introduce the syringe and needle to demonstrate the procedures he endured to alleviate the pain which resulted from his injury. At a pretrial hearing, the trial court granted Carver’s motion in limine to restrict the admission of the evidence during the trial unless appellants introduced evidence that appellee was a malingerer. However, despite Carver’s trial attorney statement that such evidence would not be introduced, testimony was elicited from witnesses which could cause the jury to question whether appellee actually sustained an injury in the accident or was feigning injury or if appellee suffered an injury, whether that injury was minor. Appellee gave extensive testimony regarding his medical treatment which included a description of the injections in his back to attempt to discover the source of his discomfort and to alleviate his pain. Appellee testified that a series of myelograms and steroid epidural injections were performed. He recounted each injection and the after effects. At the end of his testimony under direct examination, appellant testified that a particular syringe and needle which were offered for admission were not the actual equipment used in his treatment but were identical to the syringes and needles which were used in the various procedures he endured. Having undergone at least two myelograms and four steroid epidural injections, appellee was able to state with some degree of reliability that the syringe and needle offered for admission were similar to the ones used in his treatment, and that testimony provided a sufficient foundation for their introduction as demonstrative evidence inasmuch as pain and suffering was at issue in this case. Therefore, we find no abuse of discretion in the admission of this evidence.

Decided July 16, 1993.

Andrew, Threlkeld & Thompson, Reid A. Threlkeld, Richard S. Thompson, for Carver.

Preston & Preston, Robert H. Preston, for Snow.

Miles, Baker & Morris, Keith M. Morris, Fred R. Kopp, for Kin-nett.

Judgments affirmed.

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


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A0491.
    ATLANTA FAMILY RESTAURANTS, INC. et al. v. PERRY
    (434 SE2d 140)
   Cooper, Judge.

In this workers’ compensation case, an administrative law judge (ALJ) issued an award terminating appellants’ obligation to pay disability benefits to appellee but directing appellants to pay appellee’s chiropractic costs. Appellee timely appealed the award to the full Board pursuant to OCGA § 34-9-103. Appellants did not cross-appeal or file a separate appeal. However, they submitted a brief in which they argued not only that the ALJ correctly terminated their obligation to pay disability benefits, but also that the ALJ erred in ordering them to pay appellee’s chiropractic costs. Appellee then filed a “Dismissal of Appeal,” and the Board dismissed the appeal despite appellants’ written objection. Appellants timely appealed the dismissal to the superior court. When that court failed to hear the case within 60 days, the Board’s dismissal was affirmed by operation of law, see OCGA § 34-9-105 (b), and we granted appellants’ subsequent application for discretionary appeal.

An appeal to the Board “opens the entire case as a de novo proceeding” in which either party can raise any issue involved in the case; the adverse party need not cross-appeal. Ga. Dept. of Revenue v. Hughes, 99 Ga. App. 127, 128 (1) (108 SE2d 184) (1959). As a result, we have held that the party filing the appeal cannot withdraw it without the consent of the adverse party. Rose City Foods v. Usry, 86 Ga. App. 307 (1) (71 SE2d 649) (1952). The Board therefore erred in dismissing the appeal over appellants’ objection, and the dismissal should not have been affirmed by the superior court.

Judgment reversed.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I agree that the Board erred in dismissing the appeal.

1. The majority’s statement that “[a]ppellants did not cross-appeal or file a separate appeal” may be misleading. The simple procedure provided for in OCGA § 34-9-103 does not require that parties other than the applicant for review (who is not cast as an “appellant” but rather as an applicant) take any action to preserve any and all issues for the consideration by the Board. Ga. Dept. of Revenue v. Hughes, 99 Ga. App. 127, 128 (1) (108 SE2d 184) (1959); OCGA § 34-9-103.

2. It is inaccurate for us to conclude that the dismissal by the Board should not have been “affirmed” by the superior court and to reverse its judgment. The superior court rendered no judgment. In reality, we are reversing the judgment of the Board. We cannot hold that the lower court erred by affirming the Board. Former OCGA § 34-9-105 (b) provided that the Board’s decision “shall be considered affirmed by the [superior] court” if timely hearing and court order do not materialize. See AT&T Technologies v. Barrett, 195 Ga. App. 675, 676 (395 SE2d 22) (1990). But under the current statute, the non-exercise of jurisdiction results in the Board’s decision being “affirmed by operation of law.” This change was made in 1989. Ga. L. 1989, p. 579, § 2.

Progression to this court puts it in a role not originally intended for this court, as this rollover role requires us to directly review an administrative agency’s decision, albeit by application. Generally, the Court of Appeals exists, and from its inception has existed, to correct errors of law made by other courts, Barnes v. State, 157 Ga. App. 582, 589 (2) (277 SE2d 916) (1981), although it is not always the first appellate court. The Constitution provides that it shall exercise appellate and certiorari jurisdiction in all cases not reserved to the Supreme Court or conferred on other courts by law. 1983 Ga. Const., Art. VI, Sec. V, Par. III. It also provides that ‘[t]he superior courts shall have such appellate jurisdiction, either alone or by circuit or district, as may be provided by law.” 1983 Ga. Const., Art. VI, Sec. IV, Par. I. The legislature gave appellate jurisdiction in workers’ compensation to the superior courts, OCGA § 34-9-105 (b), with discretionary appeal thereafter to this court “from decisions of the superior courts reviewing decisions of the State Board of Workers’ Compensation[.] . . .” (Emphasis supplied.) OCGA § 5-6-35 (a) (1). Subsection (b) provides that “[t] he application shall specify the order or judgment being appealed.” Here there was a lapse, not a judicial review and decision memorialized in an order or judgment.

The administrative law judge sits as a trier of fact in a workers’ compensation case, and the Board sits also as a trier of fact de novo in the event of an appeal to it. The superior court, however, sits as an appellate court in such cases. It is asked to review the action of the Board for legal errors and is confined to the five grounds listed in subsection (c). It does so on the record, to which additional evidence may not be added. If additional evidence is for some reason necessary, the case must be remanded to the Board. See Hartford Accident &c. Co. v. Cox, 191 Ga. 143 (11 SE2d 661) (1940). “The facts upon which the superior court is authorized to exercise jurisdiction in an appeal from the State Board of [Workers’] Compensation are those, and only those, contained in the record transmitted to it by the board, [cits.]. . . .” Turner v. American Mut. &c. Ins. Co., 109 Ga. App. 721, 722 (137 SE2d 385) (1964).

This court has construed the affirmance by operation of law of a workers’ compensation award, as provided in subsection (d), to simply mean that the appellant can then turn to this court for the appellate review. Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (2) (404 SE2d 626) (1991). We, instead of the superior court, are then reviewing and ruling on the validity of the Board’s award and following the statute’s direction to the superior court which is given in subsection (c) . This allows the appellant who is not diligent in the superior court to simply bypass it, deliberately or by default, despite the burden being on the appellant to insure timeliness. See AT&T Technologies, supra at 676. Yet the Supreme Court has recognized that under OCGA § 5-6-35, “the superior courts are no longer merely a base which must be touched en route in the course of a workers’ compensation appeal.” Southeastern Aluminum Recycling v. Rayburn, 251 Ga. 365, 366 (306 SE2d 240) (1983).

The solicitous public policy for the disposition of workers’ compensation cases, as expressed in the legislated time constraints of OCGA § 34-9-105, are an echo of the people’s constitutional mandate, as found in 1983 Ga. Const., Art. VI, Sec. IX, Par. I, for court rules “[which] shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.”

If the direct appeal of right to the superior court which the parties in a workers’ compensation case have is not diligently pursued and that court’s jurisdiction is not invoked, the application to this court should be dismissed for the litigant’s failure to follow the procedure established. If, on the other hand, the appeal cannot be accommodated by the superior court in the .time required, then the answer is for the legislature to provide more judges or for the court to request judicial assistance from other courts. See OCGA § 15-1-9.1; 1983 Ga. Const., Art. VI, Sec. I, Par. III. The answer is not for this court to be a substitute for the superior court in the latter’s appellate capacity.

OCGA § 34-9-105 (d) designates how a date of “entry of judgment” is to be measured when the superior court does not act and the party seeks to move the appeal to this court. It was added to OCGA § 34-9-105 (d) in 1989. Ga. L. 1989, p. 579, § 2. See Ga. Sen. J. 1989, p. 2048. It states: “The date of entry of judgment for purposes of appeal pursuant to Code Section 5-6-35 of a decision affirmed by operation of law without action of the superior court shall be the last date on which the superior court could have taken action under subsection (b) of this Code section.” This dating provision need not be construed to allow applications when the litigant caused the automatic affirmance.

It is not sound administration of justice, especially when courts are increasingly overburdened, to involve yet another appellate tribunal when the first appeal, which is of right, is not pursued to decision.

In this case, the record shows no request by appellants for a hearing before the superior court. OCGA § 34-9-105 (b) puts the burden on the parties to trigger superior court action by asking the court for a hearing date.

The executive director of the Board reminded the parties, by copy of the transmittal of the record to the superior court, that “[a]ny party, upon ten days written notice to the others, may request a hearing on the record subject to assignment by [the] court.” The record does not show that the court refused to assign a hearing date. The record merely shows that, upon notice from the superior court clerk that the appeal had been docketed, appellant paid the filing fee.

Decided July 16, 1993.

Sligh, Presmanes & Jackson, Gregory T. Presmanes, for appellants.

Davis & Sissel, Kenneth M. Sissel, for appellee.

I would dismiss this appeal as one improvidently granted, for failure of appellants to pursue the speedy appellate remedy provided in the superior court. However, I am constrained by the practice of this court which is illustrated by Lanier v. Jim Brown Dev. Corp., supra. Thus I join in the holding that the Board erred, and I join in the reversal of its judgment.