text:
    A90A1521, A90A1522.
    A90A1523.
    STRICKLAND v. DeKALB HOSPITAL AUTHORITY; and vice versa. DeKALB EMERGENCY GROUP, P.C. v. STRICKLAND.
    (397 SE2d 576)
   Birdsong, Judge.

Appellant, Robert Strickland, Jr., appeals the order of the superior court, filed March 22, 1990, granting summary judgment to defendants Dr. Brenda Garland and DeKalb Hospital Authority d/b/a DeKalb General Hospital (“DHA” or “DGH”), and holding moot the motion for summary judgment of defendant DeKalb Emergency Group (“DEG”). Cross-appellant DHA appeals the order of the superior court, filed July 28, 1989, granting partial summary judgment to plaintiff on the issue of collateral estoppel against DHA and denying defendant’s cross-motion for summary judgment. Cross-appellant DEG appeals the order of the superior court, filed July 28, 1989, granting partial summary judgment to plaintiff on the issue of collateral estoppel against DEG.

Appellant Strickland received medical treatment for a dislocated shoulder. He was first seen at the DGH emergency room and then referred to Dr. Brenda Garland for treatment. Dr. Garland had entered a contract with DEG to render necessary medical services as the emergency department physician in attendance at DeKalb General Hospital. DEG had contracted with DHA to provide certain emergency department physician services at DGH.

During the course of treatment, appellant was administered Valium and Demerol. Following treatment appellant apparently was left unattended. He left the hospital grounds and subsequently, on the same day, shot and killed his wife.

Appellant was tried and convicted of the murder. His judgment of conviction was reversed on appeal. Strickland v. State, 257 Ga. 230 (357 SE2d 85) (decided June 24, 1987). Appellant was retried and again convicted of murder. This judgment of conviction was affirmed. Strickland v. State, 260 Ga. 28 (389 SE2d 230).

Appellant initiated a civil action for medical malpractice against the defendants in summary asserting that he was negligently left unattended while under the influence of drugs administered during treatment, that he was negligently allowed to depart the premises, that it was foreseeable that he would pose a threat to himself and others while in such condition, and that, as a result, he killed his wife while incapacitated by the administered drugs and unable to form intent. Appellant also asserted that his shoulder injury was not properly treated by defendant Garland, and that DHA was negligent in allowing defendants Garland and DEG to practice medicine in their facility and to treat appellant. Held:

I. Case No. A90A1521

1. Appellant asserts that the trial court erred in failing to consider the second affidavit of his medical expert witness. Hearing on the summary judgment motions was held on December 7, 1989; summary judgment order was filed March 22, 1990. The affidavit in question was served on opposing counsel on December 28, 1989, but not filed until January 5, 1990. The trial court subsequently considered “all brief and brief-like materials filed to the date of [the order on motions for summary judgments for various defendants],” but declined to consider evidentiary materials not timely filed. “ ‘An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered.’ ” Brown v. Williams, 259 Ga. 6 (4) (375 SE2d 835); see generally OCGA §§ 9-11-6 (d) and 9-11-56 (c). The court is vested with discretion whether to consider affidavits untimely served. Liberty Nat. &c. Ins. Co. v. Houk, 248 Ga. 111 (1) (281 SE2d 583); Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 595 (6) (307 SE2d 107). However, appellant asserts the trial court abused its discretion, because discovery was not completed, because the delay between the date of the hearing and the court’s ruling precluded any claim of surprise, prejudice, or lack of opportunity to respond by opposing counsel, and because the trial court relied in part on appellant’s failure to get court approval prior to filing the second untimely affidavit.

Assuming without deciding that discovery had not been completed by the date of the hearing, appellant has failed to establish the existence of any evidence subsequently obtained by discovery to which he did not have access before the date of the hearing and which would have been significant as to the disposition of the motions for summary judgment. Nor did appellant assert the existence of any such evidence to the trial court, although the court considered brief and brief-like materials filed up until the date of its order. Further, Liberty Nat. &c. Ins. Co. v. Houk, 157 Ga. App. 540 (278 SE2d 120), aff’d 248 Ga. 111, supra, is distinguishable. The trial court’s order on its face reflects that it exercised its discretion in this matter. The record fails to disclose that the trial court abused its discretion in refusing to consider the untimely affidavit in question.

2. Appellant asserts the trial court erred in granting summary judgment motions of appellees Dr. Garland and DHA.

(a) On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). In this regard, “ ‘[e]videntiary rules regarding the admissibility ... of evidence are applicable in a summary judgment proceeding.’ . . . [H]earsay evidence is without probative value and [cannot be] considered . . . unless it is part of the res gestae.” Skinner v. Humble Oil &c. Co., 145 Ga. App. 372, 374 (243 SE2d 732). Yet, once the party moving for summary judgment has made out a prima facie case, as was done by movants in this case, the burden of proof shifts to the opposing party who must come forward with rebuttal evidence or suffer judgment against it. Leah Enterprises v. Chouinard, 189 Ga. App. 744, 745-746 (377 SE2d 514). Further, factual assertions in briefs not supported by evidence of record cannot be considered on appellate review (Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223)); and, pleadings unsupported by evidence at the hearing on a motion for summary judgment do not raise factual issues that prevent granting of a motion for summary judgment. ARA Transp. v. Barnes, 183 Ga. App. 424, 427 (359 SE2d 157).

(b) Appellees assert that the original timely affidavit of appellant’s expert, a medical doctor and board certified psychiatrist, was not sufficient in rebuttal to establish the existence of a genuine issue as to any material fact, within the meaning of OCGA § 9-11-56 (c), which would preclude the grant of summary judgment.

In this case, appellees/defendants pierced appellant’s pleadings. For reasons hereinafter discussed, appellant could not thereafter prevail against the motion for summary judgment based upon the matters contained in the original timely affidavit of his expert. See generally Brumbalow v. Fritz, 183 Ga. App. 231 (1) (358 SE2d 872). The expert’s affidavit must state the particulars; it must establish the minimum requirements of professional conduct applicable to the various professional categories of defendants involved, and set forth how or in what way the various defendants deviated therefrom. See Hall v. Okehi, 194 Ga. App. 721 (2) (391 SE2d 787); Minchey v. Zane, 188 Ga. App. 733 (374 SE2d 225); compare Hooker v. Headley, 192 Ga. App. 629 (385 SE2d 732); Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791); and Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 198). The standards of professional conduct imposed upon emergency room doctors could vary significantly from that imposed upon nurses in a particular situation. See Piedmont Hosp., supra at 564 (affidavit of medical doctor, who performed surgery, insufficient as it fails to show affiant is an expert competent to testify in the field of nursing). The original affidavit of appellant’s medical expert fails to state adequately the particulars. In view of our holding in Division 1, we need not determine if the expert’s subsequent untimely affidavit also was inadequate.

(c) Appellant makes a bare assertion, apparently based on a subsequent conversation with an unidentified physician at the emergency room at Grady Hospital, that Dr. Garland had not completely manipulated his shoulder into place and that is the reason it subsequently dislocated by itself. The hearsay statement of the physician, which was not part of the res gestae, is not admissible in a summary judgment proceeding. Skinner, supra. Moreover, “ ‘the fact that the treatment has resulted unfavorably does not raise even a presumption of want of proper care, skill or diligence.’ ” Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 202 (1) (345 SE2d 904).

(d) Appellant asserts that the sole proximate cause of the injury sustained when he subsequently shot his wife “was the incapacitating effect of the drugs which had been administered to [him] shortly before at DeKalb County Hospital under the direction of Dr. Garland and the failure thereafter to adequately supervise [appellant] while [he was] under the influence of the drugs.”

OCGA § 51-12-9 provides that “[d]amages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.”

In Jacobs v. Taylor, 190 Ga. App. 520, 525-526 (379 SE2d 563), this court observed: “In order to hold the doctors liable, it must be shown either that the act complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the doctors as the original wrongdoers. Negligence is not actionable unless it is the proximate cause of the injury. ... A wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again. A [person’s] responsibility for his negligence must end somewhere. . . . [I]t may appear that causes other than the negligent one referred to so preponderated in bringing about the result as to lead us to say, from a human point of view, that the injury was just as likely to have ensued (with only its details somewhat varied, perhaps) if the negligent thing had not occurred. In such cases we exempt the author of the negligence from liability.” (Citations and punctuation omitted.)

Generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant, unless the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent act. Collie v. Hutson, 175 Ga. App. 672, 673 (334 SE2d 13); compare Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693). “Although under Georgia law questions of negligence and proximate cause are ordinarily for the jury, plain and indisputable cases may be decided by the court as a matter of law. [Cits.] In such plain cases ‘(t)he inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.’ ” Collie, supra at 673.

We find that Collie, supra, is persuasive based on the facts of this case; and Bradley Center, supra, and Southern R. Co. v. Montgomery, 192 Ga. App. 308 (384 SE2d 907), are distinguishable and not controlling. We find, as a matter of law, that any injury sustained by plaintiff regarding the death of his wife was too remote to countenance a recovery within the meaning of Collie. “ ‘Negligence is predicated on what should have been anticipated rather than on what happened.’ [Cits.] And one is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” Moses v. Chapman, 113 Ga. App. 845 (1) (149 SE2d 850); accord Ramsey v. Mercer, 142 Ga. App. 827, 829 (237 SE2d 450).

3. Appellant asserts that the trial court erred in rendering judgment in favor of appellee DEG.

Regarding appellant’s assertion that since it was error to grant summary judgment in favor of Dr. Garland or DGH, it was also error to grant summary judgment in favor of DEG, see Division 2, above. Incidentally, the trial court found that the motion for summary judgment filed on behalf of the DEG was mooted by its other rulings.

Assuming arguendo, a genuine issue had existed as to negligence on the part of Dr. Garland which was not too remote, as indicated in subdivision 2 (d), above, nevertheless summary judgment still would have been warranted as to appellee/defendant DEG, had the trial court not considered DEG’s motion for summary judgment moot.

In order for DEG to be liable for the negligent acts of Dr. Garland, “ ‘ “it must be shown that the doctor was an employee of [DEG] and not an independent contractor.” ’ ” Brown v. Coastal Emergency Svcs., 181 Ga. App. 893 (2) (354 SE2d 632). The evidence establishes as a matter of law that Dr. Garland enjoyed the status of an independent contractor in her relationship with DEG. Moreover, OCGA § 51-2-4 provides “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.”

Further, the doctrine of apparent or ostensible agency is not applicable in this case. There is no evidence appellant was caused, by the representations or conduct of DEG, justifiably to rely upon the care or skill of Dr. Garland; that is, there is no evidence of appellant’s justifiable reliance on an apparent agency. Compare Brown, supra at 896 (3).

4. “Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Citations and punctuation omitted.) Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515); McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795). Accordingly, we find the trial court did not err as asserted; appellant’s other assertions and enumerations of error also are without merit.

Decided September 12, 1990

Rehearing denied September 25, 1990.

Robert Strickland, Jr., pro se.

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Timothy H. Bendin, for Hospital Authority.

Long, Weinberg, Ansley & Wheeler, Arnold E. Gardner, for Emergency Group.

II. Case Nos. A90A1522 & A90A1523

5. Cross-appellants DHA and DEG assert that the trial court erred in granting appellant partial summary judgment against them as to their defense of collateral estoppel. But see Consolidated Mgmt. Svcs. v. Halligan, 186 Ga. App. 621 (368 SE2d 148), aff'd Halligan v. Consolidated Mgmt. Svcs., 258 Ga. 471 (369 SE2d 745).

In view of our holding in Section I above, we find that cross-appeals A90A1522 and A90A1523 are rendered moot.

Judgment affirmed in Case No. A90A1521. Appeals in Case Nos. A90A1522 and A90A1523 are moot.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A1309.
    RAZETE v. PREFERRED RESEARCH, INC.
    (397 SE2d 489)
   Birdsong, Judge.

Razete sued Preferred Research, Inc., for failure to transmit a complete, i.e., accurate title examination report on certain property. Razete contends his suit is for breach of contract; Preferred Research filed a motion to dismiss on grounds the suit was a professional malpractice suit and thus Razete was required by OCGA § 9-11-9.1 to file an expert’s affidavit with his complaint. The trial court dismissed Razete’s suit, evidently on this ground, and he appeals. Held:

We must disagree with the trial court’s decision in this case. In Housing Auth. of Savannah v. Greene, 259 Ga. 435 (383 SE2d 867), the Supreme Court held that the legislature is deemed to have enacted § 9-11-9.1 with full knowledge of the existing condition of the law and with reference to it. Id. at 438. Since the Code section requires an affidavit in “any action for damages alleging professional malpractice,” and did not limit or define or restrict what service shall be deemed “professional,” we and the Supreme Court have thus far declined to impose judicial distinctions as to what particular functions are “professional” services or acts. Id.; Precision Planning v. Wall, 193 Ga. App. 331 (387 SE2d 610).

Decided September 25, 1990.

Lefkoff, Duncan, Grimes & Dermer, John R. Grimes, Kimberly A. Richardson, for appellant.

James M. Crawford, for appellee.

Where the failure to do a thing, or the negligent doing of it, is proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service, it is a “professional” act or practice. See Hudgins v. Bacon, 171 Ga. App. 856, 859 (321 SE2d 359). Wherever it is “necessary to establish the parameters of acceptable professional conduct” (Hughes v. Malone, 146 Ga. App. 341, 345 (247 SE2d 107)) in order to prove negligence or breach for failure to perform in a workmanlike manner, the case must be deemed a professional malpractice case.

The evidence in the instant case shows simple negligence. Nothing is alleged as negligence in the title examination; in fact, the title examination was correct. The problem arose from the failure to attach to the report the last page of the title examination which correctly showed the liens.

The omission of the last page showing the liens was a simple act of negligence and not an act of malpractice.

We explained in Precision Planning, supra at 332, that the purpose of OCGA § 9-11-9.1 is to prevent “frivolous or unsuitable actions,” i.e., professional malpractice actions in which the plaintiff cannot prove by expert opinion that a professional standard or practice has been violated. But where, as in this case, the plaintiff can prove negligence or breach without proof of a customary procedure and violation of it, the case is not a professional malpractice case and OCGA § 9-11-9.1 does not apply to require an “expert’s affidavit.”

It is not the intent of OCGA § 9-11-9.1 to cause dismissal of a complaint alleging negligence or breach of a duty merely because the defendant asserts he is a “professional.”

The trial court erred in dismissing this complaint.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A90A1396.
    THE STATE v. BLALOCK.
    (397 SE2d 491)
   Beasley, Judge.

Blalock was arrested for driving under the influence of alcohol and other offenses. The court granted his motion in limine to suppress results of the state-administered intoximeter test, based on a finding that Blalock was not permitted an independent blood test as provided in OCGA § 40-6-392 (a) (3).

The officer testified at the hearing to the following. After Blalock’s request for an additional blood test, the officer informed Blalock that the closest hospital was DeKalb Medical Center and that the officer could take Blalock there or to another one that Blalock designated. Blalock did not indicate that he wished to be taken to another facility and agreed to go to DeKalb. Blalock did not question the officer about DeKalb’s procedures.

The officer transported Blalock to DeKalb where Blalock paid for the test and executed the required paperwork. He signed a consent form which stated that Blalock requested DeKalb to take a blood sample from him for the purpose of determining the alcohol and/or drug content in accordance with OCGA § 40-6-392; he fully understood that he was not required to take the blood test against his wishes; he was voluntarily submitting to the test; he authorized the hospital to give the specimen to the police to be transported to the State Crime Laboratory for determination of alcohol and/or drug content; he would not hold DeKalb or its employees and agents liable for disclosure of the test results; he had read and fully understood the consent he was executing; and he was aware that the test results might subsequently be used as legal evidence.

The laboratory technician drew three vials of blood. The officer explained what would happen to the samples. The first two were to be labeled and sealed for the officer to take to the State Crime Laboratory and the third was to be labeled and sealed to be tested by an independent laboratory utilized by the hospital. The test results from the independent laboratory would then go directly to Blalock.

Blalock then, for the first time, requested that he be given the third blood vial so it could be tested by Northside Hospital’s laboratory. The officer’s understanding of DeKalb’s policy was that once the blood was drawn it would not be given back to the patient to take with him. The laboratory technician told Blalock that DeKalb’s policy was to send the blood work to the lab it used, but a supervisor testified that this was erroneous; an individual requesting a blood test could take the blood with him.

The officer believed that once he brought an arrestee to have blood drawn, he had no further input into the test process. He told Blalock that he believed they had to comply with DeKalb’s policy. Blalock made no effort to contact Northside and inquire whether or not the blood could be transported to its laboratory for testing nor did he ask to speak with other DeKalb personnel to find out if he could retain the blood sample for testing at another facility. Eventually Blalock agreed to allow DeKalb to retain and send his blood for testing.

Even though it was undisputed that Blalock had been given the implied consent warnings and thus was informed he had a choice of testing facility and personnel, Blalock testified that at the time of his request for an independent blood test he did not know he had a choice but believed he would have to be taken to DeKalb. The officer testified that if Blalock had requested to be taken to Northside Hospital, the officer would have taken him there.

“ ‘[T]here is coupled with the right granted to the accused [to an independent test] a corresponding duty on the part of law enforcement officers not to deny him that right.’ Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978).” Lovell v. State, 178 Ga. App. 366, 369 (2) (343 SE2d 414) (1986).

“While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. Grizzle v. State, 153 Ga. App. 364 (2) (265 SE2d 324) (1980). The statute also states that ‘the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.” State v. Buffington, 189 Ga. App. 800, 801 (377 SE2d 548) (1989).

There was no evidence that the officer purposefully impeded Blalock’s belated request to remove his blood to another testing facility. The officer transported him for the requested test to an agreed upon facility. It was only after blood was drawn Blalock expressed the desire to have the sample tested at Northside even though he had consented to the test at DeKalb. The consent clearly contemplated the testing as well as the drawing of the blood.

The officer did not refuse, as a matter of discretion, Blalock’s request to take the blood. The officer believed he had no discretion in the matter but rather echoed what had been expressed, albeit erroneously, as DeKalb’s policy. There was no evidence of police action or inaction which prevented accommodating Blalock. Compare State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987) and Akin v. State, 193 Ga. App. 194 (387 SE2d 351) (1989).

At no time did Blalock request the officer to transport him to Northside for another test. Even if DeKalb had given Blalock the vial of blood, Blalock made no attempt at the time it was drawn to arrange for its testing at Northside or to determine that Northside would accept it. See Lovell, supra at 369 (2) and State v. Laycock, 151 Ga. App. 145 (259 SE2d 150) (1979).

Decided September 25, 1990.

Ralph T. Bowden, Jr., Solicitor, Judith C. Emken, Cliff Howard, Assistant Solicitors, for appellant.

Ralph J. Hunstein, for appellee.

The evidence compels the conclusions that the officer did not fail to make a reasonable effort to fulfill Blalock’s right and that the failure to obtain the split-procedure testing at different facilities as sought by defendant was justifiable. It was error to suppress the evidence.

Judgment reversed.

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


text:
    A90A1509.
    SCOTT v. THE STATE.
    (397 SE2d 553)
   Birdsong, Judge.

David Scott appeals his conviction for the offense of robbery by purse snatching. He contends the evidence, being circumstantial, was insufficient to support the verdict beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, according to the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Held:

When we review a guilty verdict on appeal, we do not weigh the evidence but construe it as the jury evidently found it, that is, in the light most favorable to the verdict. Rios v. State, 193 Ga. App. 485, 486 (388 SE2d 527). As to whether evidence raises any reasonable hypothesis other than guilt, we have no yardstick to determine what is a reasonable hypothesis except the opinion of twelve rational jurors. Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474). The jury is the best arbiter of what is a reasonable hypothesis. Mercier v. Mercier, 46 Ga. 643. The evidence in this case shows the victim’s purse was snatched by a man who then fled as a passenger in a car with a front tag bearing the name “Scott.” The purse snatcher, Mansfield, testified he was the one who snatched the purse, after being given the idea to commit the robbery by the appellant, and that the appellant Scott drove the car. Appellant and Mansfield worked together. After the robbery, Mansfield and appellant split the money and spent money obtained from the purse. Appellant testified he was with Mansfield between 2:00 and 3:00 p.m. on the day of the offense and had driven Mansfield home; the purse was snatched at 3:00 p.m. This evidence alone is sufficient to enable a rational juror to find appellant’s guilt of the offense beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, consistent with the standard of Jackson v. Virginia, supra.

Decided September 25, 1990.

Andrews & Seery, S. Andrews Seery, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A1155.
    U. S. INDUSTRIES, INC. et al. v. AUSTIN.
    (397 SE2d 469)
   Beasley, Judge.

A new trial was granted to plaintiff Austin following a defendants’ verdict and judgment in this product liability action stemming from injuries allegedly sustained by Austin when he fell from a chair manufactured by U. S. Industries and sold by Allied. The new trial was granted solely on the basis that under Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988), the trial court improperly interpreted and applied OCGA § 51-12-1 (b) retroactively and thus, erroneously overruled plaintiff’s motion in limine, allowed into evidence workers’ compensation payments from collateral sources, and charged the jury accordingly. This jury charge was not a ground of the motion for new tried, which claimed the general grounds plus several special grounds relating to evidence and jury charges.

1. The first grant of a new trial on the general grounds will ordinarily not be disturbed by the appellate court absent an abuse of discretion in that the evidence demanded the verdict rendered. See OCGA §§ 5-5-50; 5-5-51, and Dunn v. Gilbert, 217 Ga. 358 (122 SE2d 93) (1961). However, “the first grant of a new trial on special grounds involving a question of law is reviewable in a proper appeal. [Cits.]” Smith v. Telecable of Columbus, 238 Ga. 559, 560 (234 SE2d 24) (1977). The latter governs our consideration. Cobb County Kennestone Hosp. Auth. v. Crumbley, 179 Ga. App. 896 (348 SE2d 49) (1986).

2. Austin’s fall allegedly occurred on or about December 24,1983, suit was filed on June 14, 1985, and the trial was in January 1988. As in Polito v. Holland, supra, which was decided in March 1988, the new substantive collateral source rule became effective after suit was filed and before trial. But “denial of [Austin’s] motion in limine, the admission of collateral source evidence . . . , and the giving of the collateral source charge was error, as the collateral source rule of OCGA § 51-12-1 (b), which became effective July 1, 1987, cannot be given retroactive effect and operates prospectively only. Powell v. Stephens, 258 Ga. 149 (368 SE2d 518) [1988]; Polito, [supra]. However, the error to warrant reversal must be harmful, that is prejudicial to [Austin]. Thomas v. Clark, 188 Ga. App. 606 (373 SE2d 668) [1988]; Kelley v. Harris, 187 Ga. App. 215 (369 SE2d 534) [1988]; Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882) [1987].” Malloy v. Elmore, 191 Ga. App. 564, 565 (382 SE2d 395) (1989). See also Mallory v. Daniel Lumber Co., 191 Ga. App. 234, 235 (1) (381 SE2d 406) (1989).

OCGA § 9-11-61 precludes a new trial unless the refusal to grant one “appears to the court inconsistent with substantial justice.”

Although the court’s order of January 1989 granting the new trial stated that the admission into evidence of collateral payments and instruction to the jury in this regard were so prejudicial and harmful so as to affect the verdict, the court did not explain how this was so. The record denies the presence of any prejudice or harm. The court’s collateral source charge expressly confined the jury’s consideration of the collateral source evidence to its determination of the. amount of damages to be awarded to the plaintiff. Under the court’s limiting instructions, the collateral source evidence did not weigh into the jury’s deliberations because it never reached the question of damages; it found defendants not liable, so damage issues became moot. The court had also clearly instructed the jury: “Obviously, before you consider damages, you must first determine the liability of the defendant.” As noted in Malloy, we will not “speculate that the jury would ignore the limited purpose for which the collateral source evidence was admitted and would consider it in determining the question of liability.”

“ ‘It is well-settled that “the giving of a charge . . . or . . . the admission or exclusion of evidence, which go only to the matters of damages or the measure of damages, are harmless and afford no ground for reversal where a verdict was returned in favor of the defendant.” ’ [Cits.]” Id. at 565. See also Reliford v. Central of Ga. R. Co., 140 Ga. App. 782, 783 (4) (232 SE2d 129) (1976).

The absence of prejudice or harm from the error which prompted the grant of new trial rendered it erroneous as a matter of law; plaintiff was not entitled to retrial on that basis.

3. The foregoing makes it unnecessary to address the remaining enumerations of error.

Judgment reversed.

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

Decided September 12, 1990

Rehearing denied September 26, 1990

Grogan, Jones, Rumer & Gunby, Milton Jones, Chambers, Mabry, McClelland & Brooks, John C. Stivarius, for appellants.

Kenneth M. Henson, Jr., for appellee.


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

text:
    A90A0741.
    MOSS v. HALL COUNTY BOARD OF COMMISSIONERS.
    (397 SE2d 493)
   McMurray, Presiding Judge.

This condemnation proceeding involves the taking of a portion of certain real property for development of a public road. The procedure utilized by the condemnor, while not in complete conformity with either the special master method or the declaration of taking method, is not the subject of any issue raised on appeal. Condemnor Board of Commissioners of Hall County, Georgia, deposited $12,900, with the trial court, as estimated just compensation. Condemnee Moss answered and demanded a hearing before a special master to determine just and adequate compensation. The special master awarded $23,113.43. Both parties appealed the special master’s award and a jury trial resulted in a verdict awarding $12,900. Condemnee Moss appeals. Held:

One of the issues at trial was the amount of consequential damages to the portion of the tract remaining in the ownership of condemnee after the taking. Condemnee presented evidence that under a strict application of the set-back requirements, contained in the relevant building and zoning ordinances, the remaining tract suffered a reduction of permissible building area that was disproportionately greater than the taking and that this reduction of building area adversely affected the value of the remainder.

In rebuttal, condemnor was permitted, over condemnee’s objection as to relevance, to present evidence with respect to the action of the Hall County Board of Zoning Appeals in granting set-back variances in four instances where the request for variance arose from hardships caused by a taking of a portion of a tract for a road improvement object. All of the four instances were recent and two were on the same street as condemnee’s property. The admission of this evidence is enumerated as error.

Condemnor contends that the evidence was properly admitted under Civils v. Fulton County, 108 Ga. App. 793 (134 SE2d 453), to show that there was a possibility of an exception to the zoning restrictions sufficient to appreciably influence the market value of the remaining property. See also Atlanta Warehouses v. Housing Auth. of Atlanta, 143 Ga. App. 588, 592 (239 SE2d 387), and Klumok v. State Hwy. Dept., 119 Ga. App. 505 (167 SE2d 722). However, the Civils v. Fulton County, 108 Ga. App. 793, supra, decision is limited by the admonition that any evidence admitted to shed light on the value of the property, such as that showing a possible exception to zoning regulations, must not be remote or speculative. Condemnee contends that evidence of specific variances under the zoning law should be excluded as remote and speculative. “Evidence which logically tends to prove or disprove a material fact in issue is relevant. Every act or circumstance serving to elucidate or throw light upon the issue is relevant and admissible. Dept. of Transp. v. Lewyn, 168 Ga. App. 283, 286 (3) (308 SE2d 684) (1983). Furthermore, even where the relevancy of evidence is doubtful, it should be admitted and its weight determined by the jury. Carver v. Jones, 166 Ga. App. 197, 198 (2) (303 SE2d 529) (1983).” Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 900 (6) (324 SE2d 746). We do not view the evidence at issue in the case sub judice as lacking in probative value on the issue of the value of the property, therefore it was properly admitted. Rosenthal v. Hudson, 183 Ga. App. 712 (2) (360 SE2d 15).

Judgment affirmed.

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

Carley, Chief Judge,

concurring specially.

I do not dissent to the majority’s affirmance of the judgment in this case. I am, however, compelled to write separately. As the facts set forth in the majority opinion suggest, there is some confusion as to whether the instant condemnation case is one wherein it was the special master method or the declaration of taking method that was employed. I believe that it is necessary to explain why this confusion exists in the instant case so as to decrease the likelihood of its reoccurrence in future condemnation cases.

“Proceedings instituted pursuant to OCGA § 22-2-100 et seq. [, the special master method,] and those instituted pursuant to OCGA § 32-3-1 et seq. [, the declaration of taking method,] are each separate and distinct special statutory proceedings and, as such, are subject to their own unique special statutory procedural provisions. [Cits.]” (Emphasis supplied.) Stephens v. Dept. of Transp., 170 Ga. App. 784, 788 (1) (318 SE2d 167) (1984). The confusion that exists as to which of these two “separate and distinct” methods was employed in the instant case results from the fact that appellee-Condemnor, for some inexplicable reason, simultaneously invoked both methods as against appellant-Condemnee’s property. Condemnor not only filed a petition requesting the appointment of a special master, but also filed a declaration of taking which was accompanied by the payment into court of estimated just and adequate compensation. The special master method makes no provision for a condemnor to file a declaration of taking accompanied by the payment into court of estimated just and adequate compensation, and the declaration of taking method makes no provision for a condemnor to request the appointment of a special master. See Stephens v. Dept. of Transp. supra at 785 (1). The record in the instant case further reflects that, after Condemnor’s simultaneous invocation of the two entirely “separate and distinct” methods of condemnation, the two entirely “separate and distinct” condemnation procedures were erroneously intermingled throughout the pendency of the proceedings. The trial court, Condemnor and Condemnee would, on occasion, invoke those “unique special statutory procedural provisions” applicable only to the special master method and would, on other occasions, invoke those “unique special statutory procedural provisions” applicable only to the declaration of taking method. Such a “hybrid” procedure is not only totally unauthorized in the trial court, but it also leaves an appellate court in a quandary as to how to analyze and to dispose of the appeal of a case wherein it has been followed.

For example, the proper disposition of the instant case is dependent upon whether it is analyzed from the perspective of the “special statutory procedural provisions” applicable to the special master method or from the perspective of those applicable to the declaration of taking method. If Condemnor’s petition requesting the appointment of a special master is ignored and this case is treated as one wherein the declaration of taking method was employed, then a summary affirmance without addressing the merits would be the proper disposition. Under that analysis, Condemnee’s enumeration of an evidentiary ruling occurring at trial would be clearly harmless since the record shows that no trial should have ever been held because Condemnee failed to file a timely notice of appeal within 30 days after the date of service. See OCGA § 32-3-14; Department of Transp. v. Rudeseal, 156 Ga. App. 712 (276 SE2d 52) (1980). It is only because Condemnee did file a timely notice of appeal from the award of the special master that his right to trial was arguably preserved. See OCGA § 22-2-112. Accordingly, we are authorized to reach the merits of the instant case only by ignoring the Condemnor’s declaration of taking and by treating this as a condemnation case wherein the special master method was employed.

I can ultimately agree to ignore the declaration of taking rather than the special master petition only because a disposition of the instant case by summary affirmance rather than on the merits would, in effect, punish Condemnee for Condemnor’s multifarious pleading. Accordingly, although I can agree with the majority that Condemnor should prevail on the merits, it is my hope that the unauthorized invocation in the instant case of two “separate and distinct” methods of condemnation will not be repeated in the future.

Decided September 26, 1990.

Thompson, Fox & Chandler, Robert B. Thompson, for appellant.

Hulsey, Oliver & Mahar, Joseph D. Cooley III, for appellee.


author: Carley, Chief Judge.

text:
    A90A1179.
    BUFFINGTON et al. v. STEPHENS.
    (397 SE2d 495)
   Carley, Chief Judge.

Appellant-defendants sold to appellee-plaintiff four mares which were represented as then being “in foal.” Alleging that the mares had been misrepresented to him as being in foal, appellee subsequently initiated this contract action against appellants. After discovery, appellee moved for partial summary judgment as to the issue of appellants’ liability. The trial court granted partial summary judgment in favor of appellee and appellants appeal from that order.

The representation attributed to appellants was not that the mares would deliver foals, but only that the mares were in foal at the time that appellee bought them. Accordingly, the mere fact that none of the mares may have subsequently given birth to a foal is certainly not conclusive as to appellants’ liability. Appellee’s own bare assertion in his affidavit that the mares were not “in foal” at the time of the sale is a mere conclusion and certainly has no more probative value than appellants’ assertion in their opposing affidavit that the mares had been “in foal” at that time. Indeed, appellee’s statement would have less probative value. Appellants’ assertion, unlike appellee’s, was expressed in the form of an opinion based on their personal knowledge that the mares had been in good health and in estrus when they had been bred to a stud of established fertility and that the mares had not thereafter come into estrus again. See Crouch & Son v. Spooner, 9 Ga. App. 695, 698 (6) (72 SE 61) (1911). Appellants’ expert corroborated that, when such events occur, it would be a “reasonable conclusion” that the mares are then in foal.

Appellee did also produce the affidavit of a veterinarian who had examined two of the mares some six months after the sale and found that they were not then in foal. Again, however, merely that two of the mares were not in foal at a specified time is not conclusive as to whether any, some or none of the four mares may not have been in foal some six months previously. Even if appellee’s expert had expressed an unqualified opinion that the mares had never been in foal, the grant of summary judgment would nevertheless not be authorized. “The general rule is ‘that a summary judgment can never issue based solely upon opinion evidence.’ [Cit.] An exception to the general rule is applicable where a contention of fact is capable of proof only by expert testimony. [Cit.]” Jain v. Carload Delivery Svc., 189 Ga. App. 95, 97 (375 SE2d 99) (1988). Whether or not a mare is or had been in foal is not a factual matter that is capable of proof only by expert testimony. See Crouch & Son v. Spooner, supra at 698 (6). Accordingly, the affidavit of appellee’s expert did not shift to appellants the burden of producing a contrary opinion in order to withstand summary judgment. Even if the evidentiary burden had been shifted, appellants’ own opinion that, based on their personal knowledge, the mares were in foal at the time of the sale would be sufficient to preclude the grant of summary judgment, since one need not be a veterinarian to be qualified to testify as to whether a mare is or is not in foal. See Crouch & Son v. Spooner, supra at 698 (6).

Decided September 26, 1990.

Robert D. Matthews, for appellants.

Jerry N. Neal, for appellee.

Moreover, appellee’s own expert did not give an unqualified opinion that the mares had never been in foal, but acknowledged that it was equally possible that the mares had been in foal but had not delivered due to embryotic absorption. That mares are “susceptible” to embryotic absorption “as a result of many causes” was shown by the affidavit of appellants’ expert. That the four mares had been subjected to some of those causes of embryotic absorption after being sold to appellee was otherwise shown by the evidence adduced by appellants in opposition to appellee’s motion.

On motion for summary judgment, a trial court is not authorized to resolve issues of credibility, but must construe the evidence most favorably for the non-moving party and most strongly against the movant. When the evidence adduced in the instant case is properly construed, it is quite clear that appellee did not meet his burden of showing that no genuine issue of material fact remains as to appellants’ liability for purportedly misrepresenting that the four mares were in foal at the time of the sale. The jury would be authorized to disbelieve appellee’s evidence, and, based upon appellants’ evidence, find that the mares had been in foal at the time of the sale, but that they had subsequently lost their foals due to embryotic absorption. Accordingly, the grant of partial summary judgment in favor of appellee must be reversed.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A90A1187.
    ADAMS v. THE STATE.
    (397 SE2d 497)
   McMurray, Presiding Judge.

On March 30, 1989, two Chattooga County Sheriff’s deputies went looking for defendant. They were in possession of two warrants for defendant’s arrest — a “good behavior” warrant and a simple battery warrant. The deputies spotted defendant in a moving automobile occupied by defendant and others. As the deputies approached the automobile in their marked patrol car, the automobile slowed down to approximately 10 miles per hour. Suddenly, defendant emerged from the hatch of the automobile, fell to the ground, and started running. The deputies followed defendant for a short distance with the patrol car. Then, they exited the patrol car, and gave chase on foot. When they caught up with defendant, he indicated a willingness to accompany the deputies and began walking with them toward the patrol car. After taking a few steps, however, defendant “laid down on the ground and said he was hurting, he needed an ambulance.” The deputies summoned an ambulance. Thereafter, with the sound of a siren, defendant “jumped up as if he was going to run again.” When one of the deputies attempted to handcuff defendant, “he became violent,” wrestling the deputy to the ground and holding him in a head lock. The deputies were unable to quell defendant themselves. After three or four minutes, other law enforcement officers arrived at the scene. As the officers tried to get a handle on the situation, defendant slapped the deputies. Ultimately, defendant was taken to the hospital and, thereafter, to the jail.

Via indictment, defendant was charged with two counts of felony obstruction of a law enforcement officer. During the trial, on redirect examination, one of the deputies was asked if defendant’s strength was particularly great on the day in question. The deputy replied that he had never encountered anyone stronger than defendant. The deputy went on to testify that, in his opinion, based on his experience as a law enforcement officer, defendant was under the influence of drugs during the relevant time period. No objection was lodged with regard to this testimony. Thereafter, on re-cross-examination, the following colloquy took place: “Q. It’s your testimony then . . . that this superhuman strength that you have described was the result of drugs? A.Yes, sir, in my opinion it is. Q. What type of drugs was it, were you able to determine that from your years of experience? A. Okay. He stated to me when I called for the ambulance, he said I’m hurting, I’ve been doing dope all day, I’ve been shooting up all day.” At that point, defense counsel moved for a mistrial on the ground that he was not provided with defendant’s statement pursuant to OCGA § 17-7-210. The motion for a mistrial was denied.

The jury convicted defendant upon each count of the indictment and he moved for a new trial. The motion for a new trial was denied and defendant appealed. In his sole enumeration of error, defendant contends the trial court erred in permitting the deputy to testify that when defendant was lying on the ground and said he needed an ambulance he also said he had been using drugs all day. In this regard, defendant argues that statement was subject to defendant’s OCGA § 17-7-210 request and was inadmissible inasmuch as defendant’s attorney had not been provided with a copy of the statement. We disagree.

Decided September 26, 1990.

Edward F. Hurley, for appellant.

Ralph Van Pelt, Jr., District Attorney, Tracey Witt, Assistant District Attorney, for appellee.

OCGA § 17-7-210 provides, in part: “(a) At least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by him while in police custody. . . . (c) Failure of the prosecution to comply with a defendant’s timely written request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution’s use in its case-in-chief or in rebuttal.” Assuming, arguendo, that defendant was in custody at the time the statement was made, (but see Holbrook v. State, 162 Ga. App. 400, 401 (1), 402 (291 SE2d 729), in which it was held “[utterances made by appellant during the commission of, or in connection with, the crime charged do not constitute statements given ‘while in custody’ ”), it is clear that the statement was not used by the prosecution in its case against defendant. Rather, the statement was elicited on re-cross-examination by counsel for defendant. “Counsel asked a question which left the field wide open for a reply such as was given and counsel can not complain of the outcome.” Gaddy v. State, 96 Ga. App. 344, 346 (2) (99 SE2d 837). Accord Steele v. State, 166 Ga. App. 24 (303 SE2d 462).

On appeal, defendant urges additional grounds in support of his motion for mistrial. In making his mistrial motion, however, defendant argued only that he was not provided with defendant’s statement pursuant to OCGA § 17-7-210. Accordingly, the additional grounds raised by defendant on appeal cannot be considered by this Court. Brantley v. State, 177 Ga. App. 13 (1), 14 (338 SE2d 694).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A1218.
    CLARKE v. COX.
    (397 SE2d 598)
   Deen, Presiding Judge.

The appellee commenced this action against the appellant, Robert Clarke, and Jeffrey Kielma, to recover for injuries he sustained when the vehicle he was driving was struck by the vehicle owned by Clarke but operated by Kielma. It was undisputed that Kielma had a history of alcohol abuse, and that he was intoxicated at the time of the collision. The basis for liability asserted against Clarke was negligent entrustment. Following trial, the jury returned a verdict against both Kielma and Clarke for $9,998.50 actual damages, $300,000 general damages and $265,000 punitive damages. Clarke brings this appeal from the denial of his motion for new trial. Held:

1. Under the theory of negligent entrustment, liability of an owner of a vehicle is predicated upon the negligent act of the owner in lending his vehicle to another person with actual knowledge of the latter’s incompetence or habitual recklessness. Cherry v. Kelly Services, 171 Ga. App. 235 (319 SE2d 463) (1984). Clarke contends that there was no evidence that he had actual knowledge of Kielma’s propensity for driving under the influence before lending the automobile to Kielma.

Before the collision in this case, Kielma had accumulated several violations of driving under the influence, and his driver’s license was suspended. Clarke and Kielma had known each other since 1975 and had been roommates for almost a year prior to the collision. Kielma testified that his usual habit was to drink one pint of bourbon each night at home. Although Clarke had a second job on the weekends, he did not work during the weekday evenings and mostly stayed at home. Clarke acknowledged that he had seen Kielma intoxicated before and at times had noticed the odor of alcohol about Kielma. Clarke claimed never to have discussed Kielma’s drinking problem with Kielma, but Kielma testified that on one occasion he had remarked to Clarke about Clarke’s ability to take an entire week to drink a six-pack of beer, compared to his own habit of drinking an entire pint of bourbon in one sitting. Clarke also knew that Kielma’s primary source of transportation was MARTA; in fact, on the day of the collision, he had lent his car to Kielma so that Kielma could get to a job interview more conveniently.

This court has previously noted that “a plaintiff generally must rely upon circumstantial evidence in this type of case,” and that circumstantial evidence can support a finding of actual knowledge if it is incompatible with the direct and positive testimony denying actual knowledge. Ed Sherwood Chevrolet v. McAuley, 164 Ga. App. 798, 799 (298 SE2d 565) (1982). While there is ample circumstantial evidence that Clarke knew of Kielma’s drinking problem, there is no evidence Clarke had actual knowledge that Kielma was currently driving, or had a history of driving, while under the influence of alcohol. It was incumbent upon the plaintiff to prove that Clarke had actual knowledge of Kielma’s incompetent driving or facts from which such knowledge could be inferred. Saunders v. Vikers, 116 Ga. App. 733, 736 (158 SE2d 324) (1967). Since the evidence supporting the negligent entrustment verdict failed to prove the tort, the trial court erred by denying Clarke’s motion for a new trial.

Decided September 26, 1990.

Smith, Gilliam & Williams, John H. Smith, Steven P. Gilliam, Donald T. Hunt, Catherine H. Hicks, for appellant.

George R. Dean, for appellee.

2. Clarke also contends that the evidence did not support the award of punitive damages because no aggravating circumstances were involved, as required by OCGA § 51-12-5. Since we have determined that there was no evidence to support the tort action for negligent entrustment against Clarke, it follows that, “[P]unitive damages are not supportable where the tort is not proved.” Associated Software Consultants &c. v. Wysocki, 177 Ga. App. 135, 138 (338 SE2d 679) (1985).

We further note that the court did not charge that punitive damages should be considered separately as to each alleged tortfeasor. In fact, the court expressly charged that in considering punitive damages, the jury could consider any driving-while-intoxicated charges to which Kielma had pled guilty before or after the collision. This tended to make Clarke responsible for this factor, too, because the court did not charge that each tortfeasor be considered separately as to punitive damages. Negligent entrustment of a vehicle is a separate tort from the negligence of the driver to whom the vehicle is entrusted. The aggravating circumstances necessary to support an award for punitive damages pursuant to OCGA § 51-12-5 must arise separately from the evidence proving each tort. Accordingly, the trial court’s charge and the form of the verdict should provide the jury with guidelines to separately determine the issue of punitive damages for each tort.

Judgment reversed.

Pope and Beasley, JJ., concur.


text:
    A90A1315.
    TUCKER v. NEWS PUBLISHING COMPANY.
    (397 SE2d 499)
   Carley, Chief Judge.

Through his parents as next friends, appellant-plaintiff initiated this action against appellee-defendant, alleging claims for an invasion of privacy and the intentional infliction of emotional distress. After discovery, appellee moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

1. The undisputed facts are as follows: Appellant was viciously attacked by a group of his fellow high school students. The attack took place on the school grounds during a school-sanctioned activity. Appellant’s parents demanded an investigation by the school authorities. In addition, warrants were sworn out against the perpetrators and both the district attorney’s office and the juvenile authorities launched investigations. The attack quickly became a topic of discussion in the school and a source of rumors throughout the local community. Two months after the attack, indictments were returned against several of the perpetrators. Several months after that, appellant and his parents filed a lawsuit against school officials.

Appellant’s instant action is based upon appellee’s publication of three newspaper articles wherein these events were truthfully reported. The first article was published two days after the indictments had been returned. Although this article did not name appellant, it did describe the attack upon him and the series of events which had ultimately culminated in the indictments. Numerous sources were cited, including court documents, an investigator in the district attorney’s office, the district attorney himself, the county school superintendent, and the high school principal. The second article was published the next day and reported the impending arrest of two of the perpetrators. This article did contain appellant’s name, reporting that the indictments had listed him as the victim. In addition to naming appellant, this article also contained a graphic description of the attack on him and cited as its source for that description the report of the district attorney’s investigator. The third article reported on the lawsuit that had been filed against school officials and named appellant as being one of the plaintiffs therein. In addition to naming appellant, this article again contained a graphic description of the attack on him and cited as its source the indictments and court records.

Appellant urges that genuine issues of material fact remain as to whether the newspaper articles, notwithstanding their truthfulness, were an actionable invasion of his privacy insofar as they actually named him as the victim of the assault and gave graphic descriptions thereof. However, appellant’s “right of privacy is unquestionably limited by the right to speak and print. [Art. I, Sec. I, Par. V, of the Ga. Const, of 1983.] It may be said that to give liberty of speech and of the press such wide scope . . . would impose a very serious limitation upon the right of privacy; but if it does, it is due to the fact that the law considers that the welfare of the public is better subserved by maintaining the liberty of speech and of the press than by allowing an individual to assert his right of privacy in such a way as to interfere with the free expression of one’s sentiments and the publication of every matter in which the public may be legitimately interested.” Pavesich v. New England Life Ins. Co., 122 Ga. 190, 204 (7) (50 SE 68) (1905).

Accordingly, “[t]he right to recover under an invasion of privacy theory is restricted where matters of public interest are involved. ‘ “(W)here an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one’s legal right of privacy.” (Cit.)’ [Cits.]” Cox Communications v. Lowe, 173 Ga. App. 812, 813 (1) (328 SE2d 384) (1985). The evidence of record shows that, through no fault of his own, appellant became the object of “public interest. The [attack upon him] necessarily became a matter of legal investigation and the subject matter of public records. During the pendency and continuation of the investigation, and until such time as the perpetrator [s] of the crime may be apprehended and brought to justice under the rules of our society, the matter will continue to be one of public interest, and the dissemination of information pertaining thereto would not amount to a violation of [appellant’s] right of privacy.” Waters v. Fleetwood, 212 Ga. 161, 167 (91 SE2d 344) (1956). By the time that the articles appeared, not only had the indictments been returned but also appellant’s identity as the victim of a particularly violent attack had become well known among his classmates and in the general community. Accordingly, “[t]he matters reported . . . were all truthful matters of public knowledge or public record. ‘ “There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public. Thus there is no liability for giving publicity to facts about the plaintiff’s life which are matters of public record. . . .” ’ [Cit.]” Reece v. Grissom, 154 Ga. App. 194, 196 (2) (267 SE2d 839) (1980).

Appellant “has his right of privacy, the right to be let alone. ‘There are times, however, when one, whether willingly or not, becomes an actor in an occurrence of public or general interest. When this takes place, he emerges from his seclusion. . . .’ [Cits.] In the case sub judice [appellant] has, albeit unwillingly, become an actor in a public drama. Dissemination of information pertaining to this drama is no violation of [his] right of privacy.” Ramsey v. Ga. Gazette Pub. Co., 164 Ga. App. 693, 695 (1) (297 SE2d 94) (1982). It follows that the trial court correctly granted summary judgment in favor of appellee as to its liability under an invasion of privacy theory. “ ‘In the case at bar however much we may sympathize with the feelings of [appellant], we consider that the [articlés were] the subject of legitimate public interest.’ ” Waters v. Fleetwood, supra at 165.

Decided September 26, 1990.

James A. Robbins, Jr., for appellant.

Brinson, Askew & Berry, Robert L. Berry, Jr., Thomas D. Richardson, for appellee.

Hull, Towill, Norman & Barrett, David E. Hudson, amicus curiae.

2. “Georgia does recognize a cause of action for intentional infliction of emotional distress. [Cits.] However, in those cases where recovery has been authorized . . . , the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff. [Cits.]” (Emphasis supplied.) Georgia Power Co. v. Johnson, 155 Ga. App. 862, 863 (2) (274 SE2d 17) (1980). Appellant was subjected to terrifying and insulting conduct only at the hands of his attackers. Appellee’s only conduct was truthfully to report the occurrence of that terrifying and insulting event to which appellant was subjected. The desire of the victim of a crime not to have his name or the graphic details of his experience publicized is understandable. However, the commission of a criminal act and the response of law enforcement officials thereto is a matter in which the public, as well as the victim, has an interest. The law of this state provides appellant with a tort remedy against those who are legally responsible for his actual terrifying and insulting experience. It does not, however, provide appellant with an additional tort remedy against appellee for the truthful report of his terrifying and insulting experience to the public. “The only ‘act’ attributed to [appellee] was that of [publishing the articles]. The [articles were] about [appellant] but [they were] directed to [the public]. The legal remedy where one is allegedly injured by words published to a third person is an action for defamation. [Appellant] is not entitled to recover under the theory that the act of [publishing the articles] was an intentional infliction of emotional distress upon him.” Carter v. Willowrun Condominium Assn., 179 Ga. App. 257, 260 (5) (345 SE2d 924) (1986). It follows that the trial court correctly granted summary judgment in favor of appellee as to this theory of recovery.

Judgment affirmed.

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


text:
    A90A1334.
    STREJC v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (397 SE2d 501)
   Carley, Chief Judge.

Appellant-plaintiff filed suit against appellee-defendants and several others. Appellees answered and served appellant with interrogatories. When appellant failed to make a timely response to their interrogatories, appellees moved pursuant to OCGA § 9-11-37 (d) (1) for the dismissal of the appellant’s complaint or, in the alternative, for an order compelling her to respond. Before the hearing on appellees’ motion, appellant did serve her answers to the interrogatories. However, as to Interrogatories 23 and 24 which had sought discovery of the “specifications of negligence” upon which appellant was relying, her response was merely that she was “not qualified to render legal opinions or conclusions.” Although appellant did supplement her answers to Interrogatories 23 and 24 before the hearing on appellees’ motion, she did so with responses which were arguably incomplete and evasive.

Appellant’s belated efforts to answer the interrogatories did not preclude the imposition of sanctions against her pursuant to OCGA § 9-11-37 (d). However, the trial court, in the exercise of its discretion, did not elect to impose any sanctions but, as it was also authorized to do under OCGA § 9-11-37 (d) (1), merely awarded appellees reasonable attorney’s fees and legal expenses. On several occasions thereafter, appellees’ attorney sought to obtain further responses from appellant to Interrogatories 23 and 24. When no further responses were forthcoming, appellees filed a motion to dismiss or, in the alternative, to compel appellant to answer those two interrogatories. After the hearing on this motion, the trial court entered an order dismissing appellant’s complaint as a sanction for her failure to give full and responsive answers to Interrogatories 23 and 24. The trial court did, however, certify its order for immediate review and appellant’s application for an interlocutory appeal was granted.

“[A] total failure to serve answers or objections [to interrogatories] would constitute a failure to respond under [OCGA § 9-11-37 (d)] and would subject a party to immediate sanctions.” Holt v. Brown, 177 Ga. App. 823, 824 (341 SE2d 486) (1986). However, the instant case does not involve OCGA § 9-11-37 (d) and the dismissal of a complaint as a sanction for the total failure to respond to interrogatories. Although the trial court, in its original order, would have been authorized pursuant to that Code section to dismiss appellant’s complaint as a sanction for her total failure to have made a timely response to any of the interrogatories, the trial court did not do so, but merely awarded attorney’s fees to appellees. What the instant case does involve is the dismissal of a complaint as sanction for the giving of partial and evasive answers to certain interrogatories. Such a dismissal must be predicated upon OCGA § 9-11-37 (a), not OCGA § 9-11-37 (d). “ ‘[A]nswering partially or giving evasive answers evidences a dispute between the parties which is brought before the trial court by [an OCGA § 9-11-37 (a)] motion to compel discovery and is resolved through an order to compel answers or a protective order.’ [Cits.]” Holt v. Brown, supra at 824.

Decided September 26, 1990.

Kenneth J. Rajotte, for appellant.

Long, Weinberg, Ansley & Wheeler, Barry S. Mittenthal, Stephanie F. Goff, Schreeder, Wheeler & Flint, Alexander J. Simmons, Jr., for appellees.

In Thornton v. Burson, 151 Ga. App. 456, 458 (2) (260 SE2d 388) (1979), we held: “ ‘The remedy available to a party whose discovery efforts are frustrated by his opponent’s refusal to submit to discovery is contained in the two-step procedure of [OCGA § 9-11-37]. First, a motion for (an) order compelling discovery must be made, heard and granted. The obstinate party is then afforded another opportunity to provide discovery. If he fails to do so, the second step is for the court to enter such order as is just, including the imposition of one or more of the sanctions set forth in [OCGA § 9-11-37 (b) (2)]. [Cit.] ... If the answers are inadequate, the trial court may order more explicit answers. If this order is violated, [OCGA § 9-11-37 (b)] lists the sanctions which may be imposed by the trial court on motion by the non-offending party.’ [Cit.]” In the instant case, no order was ever entered requiring that appellant provide more complete responses to Interrogatories 23 and 24. Accordingly, the dismissal of her complaint was unauthorized. “[I]n the absence of any written order to compel discovery or protective order of record, and no finding in the order appealed from of wilfulness, bad faith or conscious disregard of any such order, we must conclude that the trial court abused its discretion in dismissing [appellant’s] complaint with prejudice.” Holt v. Brown, supra at 824.

Judgment reversed.

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


text:
    A90A1763.
    HAMRICK v. THE STATE.
    (397 SE2d 503)
   Deen, Presiding Judge.

The appellant, Herbert Hamrick, was convicted of selling diazepam, possession of diazepam with intent to distribute, and possession of marijuana with intent to distribute.

On March 27, 1989, an off-duty Gwinnett County police officer who happened to be at a car dealership observed Hamrick seated in a van pouring several pills from a prescription container into the hand of another individual. A third individual was standing in front of the van, ostensibly serving as a look-out. The police officer called for assistance.

When another officer arrived, both officers approached Hamrick, and the first officer advised him that he had observed him participating in what he believed was a drug sale. Hamrick produced a prescription bottle and indicated that it contained his own prescription drugs. The officer remained suspicious because although the bottle label indicated contents of 12 capsules of vibramycin, it contained over 70 tablets of what turned out to be diazepam. One officer seized the prescription vial, and the other officer seized a small duffle bag held by Hamrick. The officer felt the bag for a weapon, and opened it after feeling a hard object in the bottom. Right on top was a large bag of marijuana, the sight of which prompted a remark by the other officer about the quantity and Hamrick’s response that it was half a pound.

The officers placed Hamrick under arrest, and escorted him to an empty office, where a search of his person revealed a small bag of marijuana. The officers then informed Hamrick of his Miranda rights. Hamrick indicated that he understood those rights, waived them, and stated that he had sold the man in the van 10 pills for 10 dollars. The officers also emptied the duffle bag and discovered cigarette papers, baggies, and scales. Held:

1. Hamrick contends that all of the evidence seized should have been suppressed as the product of an illegal arrest and search. A police officer may make a brief, investigatory stop, provided the officer has a reasonable, articulable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity, and the nature and extent of the detention is minimally intrusive. State v. Hodges, 184 Ga. App. 21 (360 SE2d 903) (1987). In the instant case, the officer’s personal observation of what appeared to be a drug sale provided sufficient basis for conducting a brief, investigatory stop. This reasonable suspicion was only bolstered by Hamrick’s presentation of the prescription bottle with inappropriate contents.

Concerning the search of the duffle bag and discovery of the marijuana, the arresting officer explained that experience had taught him that many drug dealers carry weapons and for the safety of the police officers and numerous people in the car dealership at the time, he had conducted a protective pat-down search of the bag for weapons. Upon feeling a hard object in the bottom of the bag that he could not identify, he opened the bag and found the half pound of marijuana on top. Such a protective pat-down and search of a bag is authorized where the investigating officer has an articulable, reasonable belief that the person stopped may be armed. See Burroughs v. State, 190 Ga, App. 467 (2) (379 SE2d 175) (1989); Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988). The pat-down and search of the duffle bag was authorized in the instant case.

2. Hamrick contends that the trial court erred in admitting inculpatory, oral statements of Hamrick, viz., his quantifying the marijuana in the duffle bag and his statement that he had given the man in the van 10 pills for 10 dollars. Concerning Hamrick’s statement that he had one-half pound of marijuana, it was not the product of a custodial interrogation, since Hamrick at that point in time was not under arrest. With regard to Hamrick’s custodial statement about selling the pills, following the Jackson v. Denno hearing, the trial court found that Hamrick had freely and voluntarily given the statement. Such factual findings by the trial court will be upheld on appeal unless clearly erroneous, Kincey v. State, 191 Ga. App. 300 (2) (381 SE2d 439) (1989), and we find no clear error in the instant case.

3. The prosecutor asked the arresting officer a question, “based on what you saw, your police experience, your police background, you became suspicious?” which was unsuccessfully objected to by defense counsel on the grounds that it was a leading question that suggested that the officer was suspicious. The prosecutor, however, rephrased the question and merely asked the officer if he were suspicious, and the officer was allowed to explain his suspicion over defense counsel’s additional objection that the answer was not responsive to the question asked. Hamrick contends that the question as originally asked was impermissibly leading and that the answer impermissibly expressed conclusions.

If the mere asking of the original question was error, we find that it was harmless. See Poole v. State, 130 Ga. App. 603 (7) (203 SE2d 886) (1974). The officer’s answer, in which he delineated the circumstances that aroused his suspicions, was properly admitted; a witness is allowed to explain an answer. Fields v. State, 176 Ga. App. 122 (335 SE2d 466) (1985). We also reject Hamrick’s related contention that the police officer’s explanation of why he had charged Hamrick with possession of the controlled substances with the intent to distribute impermissibly invaded the province of the jury under OCGA § 24-9-65.

4. During the sentencing hearing, the prosecutor referred to charges of habitual violator and DUI pending against Hamrick. Defense counsel objected on the grounds that the reference was improper in the sentencing phase, and the trial court responded, “I know that.” The trial court also indicated that it was already aware of the pending charges in any event, having presided over a suppression hearing regarding them. That statement of awareness did not rebut the presumption that the trial court did not consider the improper matter in fixing the sentence. Clark v. State, 138 Ga. App. 266 (226 SE2d 89) (1976); cf. Minis v. State, 150 Ga. App. 671 (5) (258 SE2d 308) (1979).

Decided September 26, 1990.

Phillip N. Lavender, for appellant.

Thomas C. Lawler III, District Attorney, J. Keith Miles, Debra K. Turner, Assistant District Attorneys, for appellee.

5. Hamrick also contends that there was a merger of the offenses of sale of diazepam and possession of diazepam with intent to distribute. However, in the instant case, where the portion of the contraband actually sold was used to prove the sale and the distinct remainder was used to prove possession with intent to sell, no merger occurred. Wilson v. Hopper, 234 Ga. 859 (3) (218 SE2d 573) (1975); see also Howard v. State, 144 Ga. App. 208 (1) (240 SE2d 908) (1977).

6. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find Hamrick guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1443, A90A1444.
    NODVIN v. WEST et al.; and vice versa.
    (397 SE2d 581)
   Birdsong, Judge.

Appellant Marvin P. Nodvin, an attorney, sued his former clients, appellees Thomas B. and Mildred B. West, in four counts for professional fees and interest allegedly owed to Nodvin, for damages and fraud, seeking, inter alia, punitive damages and expenses of litigation.

In February 1986, the trial court issued an order vacating and setting aside its prior order of December 1985, which denied appellant’s motion in summary judgment, and granted appellant partial summary judgment against appellees, as follows: (a) As to appellant’s claim for legal services relating to one Patterson, “in the amount of $10,488.71 principal, interest at 1.5% per month of $14,040.23, making a total of $24,488.94 [sic], plus costs”; and (b) as to appellant’s claim for legal services relating to one Hewatt, “in the amount of $16,494.09 principal, interest at 1.5% per month of $18,845.90, making a total of $35,339.99, plus costs.” The arithmetical error as to the total claim relating to Patterson was subsequently corrected by amendment of the order to reflect a total of $24,528.94. The trial court in its February 1986 order also provided that, “[t]here being no reason for delay, these partial summary judgments are ordered to be made the final order of this court solely as to the issues and amounts adjudicated.” The order did not expressly provide for post-judgment lntGicst

In West v. Nodvin, 183 Ga. App. 645 (359 SE2d 729), this court affirmed the trial court’s action striking certain affidavits of appellees and granting summary judgment to Nodvin; however, the issues therein addressed are not dispositive of the issues raised in the case sub judice.

In April 1988, appellant filed a motion for clarification as to accrual of damage, in essence requesting the trial court to specify that post-judgment interest runs on the amounts awarded by the partial summary judgment order, as amended, at the rate of 1.5 percent per month. On February 9, 1989, the trial court entered an order holding that the judgment of February 1986 bears no post-judgment interest. This order was subsequently vacated by rule nisi, filed February 16, 1989, following appellant’s motion for reconsideration.

On November 20, 1989, the trial court entered an order holding, inter alia, “that the [j]udgment at issue includes 12% annual [post-judgment] interest on the specified principal sums only, until the date paid.” Appellant has timely appealed this order, and appellees have cross-appealed, after this court denied application for interlocutory appeal, concluding “it appears to the court that the order which is the subject of the application is an order clarifying an earlier judgment of the court made final by the certificate of the trial judge pursuant to OCGA § 9-11-54 (b). Accordingly, the order ... is not interlocutory within the purview of OCGA § 5-6-34 (b). . . .” Held:

1. We are satisfied that the order of November 20, 1989, is subject to direct appeal. Courts are vested with constitutional authority to “exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments. . . .” (Emphasis supplied.) Ga. Const, of 1983, Art. VI, Sec. I, Par. IV. Further, a court has broad statutory power to correct clerical mistakes, and to correct errors arising from oversight or omission (OCGA § 9-11-60 (g)). See generally Williams v. Stancil, 119 Ga. App. 800 (1) (168 SE2d 643). The trial court, by its order of November 20, 1989, in an obvious attempt to effectuate properly its prior grant of partial summary judgment clarifies its judgment by holding “that the [j]udgment at issue includes 12% annual interest on the specified principal sums only, until the date paid.” The order granting partial summary judgment was certified as final, pursuant to OCGA § 9-11-54 (b), and this determination is still in effect. Further, we find that by subsequently clarifying the express contents of the order, which inter alia granted partial summary judgment, the trial court has clarified the omission in its judgment as to post-trial interest, which in essence is tantamount to corrective action under OCGA § 9-11-60 (g). Such corrective action constituted a final order which is directly appealable. Compare Brooks v. Fed. Land Bank, 193 Ga. App. 591 (1) (388 SE2d 704) (physical precedent only) with Crawford v. Kroger Co., 183 Ga. App. 836 (1) (360 SE2d 274) (whole court).

Any other interpretation would thwart the true intent of the trial court as evidenced, not only by its certification of its partial summary judgment as final, but also by its attempted certification of the clarification order for immediate review.

As notice of direct appeal was filed within 30 days of the filing of the clarifying order, which reissued for a limited purpose the partial summary judgment that was certified as final under OCGA § 9-11-54 (b), it is timely. See generally OCGA § 5-6-38; cf. Wills v. McAuley, 166 Ga. App. 4 (1) (303 SE2d 26).

I. Case No. A90A1444

2. Cross-appellants, the Wests assert, relying inter alia upon Bowers v. Price, 171 Ga. App. 516 (320 SE2d 211), that the trial court erred by holding that post-judgment interest accrues to the principal awarded in a final partial summary judgment, even though the order granting partial summary judgment did not contain a written specific provision for the recovery of post-judgment interest. We disagree.

In West v. Jamison, 182 Ga. App. 565 (356 SE2d 659), decided April 7, 1987, before the effective date of the 1987 amendment to OCGA § 7-4-12 which added the provision that post-judgment interest “shall apply automatically to all judgments in this state and . . . shall be collectable as a part of each such judgment whether or not such judgment specifically reflects the entitlement to such interest,” this court held that “[a]s for post-judgment interest at the rate of 12 percent, such interest is inherent in the judgment whether specifically mentioned in the judgment of the superior court as all judgments bear interest from date of rendition and it is immaterial that the verdict or judgment does not provide for future interest.” (Emphasis supplied.) Id. at 569, citing Lang v. South Ga. Inv. Co., 38 Ga. App. 430 (2) (144 SE 149), decided July 27, 1928; see also Stinson v. Ga. Dept. &c. Credit Union, 171 Ga. App. 303 (3) (319 SE2d 508), citing Lang, supra.

The judgment at issue in this case is distinguishable from that in Bowers, supra. In Bowers, counsel for the judgment creditor was advised to secure from the trial court an amendment providing post-judgment interest, and refused to do so. Bowers, supra at 517. In this case, while cross-appellee did not obtain an amendment of the judgment at issue, he did obtain a clarification that the judgment inherently “includes” post-judgment interest at 12 percent annual interest on the specified principal sums only. Accordingly, we find that Bowers is not dispositive of the issue raised in the cross-appeal.

II. Case No. A90A1443

3. Appellant Nodvin asserts that the trial court erred in ruling that the partial summary judgments, as amended, granted in behalf of appellant included post-judgment interest only at a rate of 12 percent per annum and only upon the portion of the partial summary judgments which could be determined to be principal. We disagree.

(a) Appellant asserts on appeal that in view of the judgment in the case of Betty Hall Clarke, Plaintiff, v. Thomas B. West, Sr., Mildred B. West and Thomas B. West, Jr., Defendants v. Decatur Federal Sav. & Loan Assn., Garnishee, Garnishment Number 87 G-14354, State Court of DeKalb County, in which appellant was a claimant, that appellee/cross-appellants are bound by collateral estoppel as to the issue in the case sub judice of accrual of interest at 1.5 percent per month on the judgment. At the onset, we note that appellant failed to raise timely the issue of collateral estoppel before the trial court, rather in his motion for reconsideration, filed February 21, 1989, of the trial court’s order of February 9, 1989, which denied appellant future interest on the judgment of February 14, 1986, appellant asserted that the judgment in the Clarke case “was not appealed . . . and became res judicata.” As the specific ground of collateral estoppel was never made a timely issue before the trial court, no question concerning this matter is presented for appellate review. See Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783-784 (321 SE2d 110). On appeal only issues properly and timely raised before the trial court will be considered. Department of Transp. v. Hillside Motors, 192 Ga. App. 637 (1) (385 SE2d 746). Moreover, after examining the posture of the record in this case, we are satisfied that the issue presented for our resolution is not shown to have been “directly decided” in Clarke, supra, within the meaning of Roddenberry v. Roddenberry, 255 Ga. 715, 717 (342 SE2d 464).

(b) The issue of award of pre-judgment interest is not before this court on appeal. As to the trial court’s determination of the amount of post-trial interest due: first, the provisions of OCGA § 7-4-12, as amended effective July 1, 1986, and thereafter, are to be applied only to judgments actually entered after the effective date of those statutory amendments. Department of Transp. v. Delta Machine &c. Co., 162 Ga. App. 252 (1) (291 SE2d 104); accord Fishel v. Colonial Stores, 165 Ga. App. 217 (299 SE2d 192); see generally OCGA § 1-3-5.

We find that for these purposes, it is the date the judgment in this case actually was entered, and not the date when the clarification of judgment order currently on direct appeal was entered, that is controlling. See OCGA § 9-12-40. Accordingly, we must turn to the case law to interpret the provisions of OCGA § 7-4-12 in effect at the time the judgment was entered in this case on February 14, 1986.

In Chilivis v. Rogers Oil Co., 135 Ga. App. 176, 177 (3) (217 SE2d 179), we held: “Generally interest on a judgment is to be calculated at 7% [12%] per annum from date of judgment until payment (Code § 57-108) [OCGA § 7-4-12], but where the contract or note upon which an action is based specifies a different rate, the judgment thereon bears interest from the date of the judgment at the contract rate.” However, the general rule in Chilivis has been modified by one particular portion of our holding in Bowers, supra. In Bowers, supra at 519, we held that “[w]here, as here, a right to execution and collection of post-judgment interest is asserted, it appears that the law contemplates that such right be evidenced by an underlying judgment which has been signed by the trial court and filed with the clerk.” As the judgment in this case was silent as to post-judgment interest and did not evidence the right thereto within the meaning of Bowers, the only extent to which such post-judgment interest could have been found to be awarded was to the extent such post-judgment interest was inherent in the judgment within the meaning of West, supra. In West, supra at 569, we held that “post-judgment interest at the rate of 12 percent ... is inherent in the judgment.” (Emphasis supplied.) Further, in West, supra, we held that “judgment may bear interest from the date of judgment only on the principal sum. The interest found to be due at date of the judgment may not bear interest.” Thus, “[a] judgment may be legally entered up for the principal sum and the interest due on the claim sued on to date of judgment. However, such a judgment bears interest only from its date on the principal sum.” Southern Loan Co. v. McDaniel, 50 Ga. App. 285 (2) (177 SE 834).

This opinion does not purport to interpret the statutory provisions of OCGA § 7-4-12 currently in effect this date.

(c) Further, this court cannot consider in the appellate process either mere allegations of fact found in a party’s pleadings, not admitted by the opposing party, or factual assertions in the parties’ briefs, when such allegations and assertions are not supported by the record. Behar v. Aero Med Intl., 185 Ga. App. 845, 846-847 (366 SE2d 223). Our examination of the records in these appeals shows that there exists in these particular records insufficient evidence of the existence of any contract, obligation, or note between the parties establishing that appellees will pay post-judgment interest at a specified rate other than the statutory rate of 12 percent per year provided for in the then effective OCGA § 7-4-12. Assuming without deciding, that the account was a commercial account within the meaning of OCGA § 7-4-16, this Code section on its face merely authorizes, but does not mandate, the charging of the maximum interest therein specified. Further, the “Marvin P. Nodvin Disclosure of Financial Charges” fails to establish therein that it applied to any account of appellees or that it was ever delivered to any of the appellees. A brief or attachment thereto cannot be used in lieu of the record or transcript for adding evidence to the record; we must take our evidence from the record and not from the brief of either party. Johnson v. Wade, 184 Ga. App. 675, 676 (1) (362 SE2d 469). The burden is on appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of errors is not brought up so that this court can make its determination from a consideration of all relevant evidence bearing thereon, an affirmance as to that issue must result. Addis v. Spain, 225 Ga. 609 (170 SE2d 585) and cases therein cited; Smith v. State, 160 Ga. App. 26 (1) (285 SE2d 749).

Decided September 12, 1990

Rehearing denied September 27, 1990

Marvin P. Nodvin, pro se.

Richard A. Gordon, for appellant.

Theodore L. Marcus, for appellees.

Appellant and cross-appellants’ other assertions are without merit.

Judgment affirmed.

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


text:
    A90A0829.
    TILLEY v. THE STATE.
    (397 SE2d 506)
   Beasley, Judge.

Tilley was convicted of public indecency by exposing himself in a lewd manner in the parking lot of a shopping mall. He appeals following denial of his motion for a new trial, OCGA § 16-6-8.

The evidence construed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following. An off-duty out-of-uniform police officer had parked her car at the far end of the shopping mall parking lot to make it easier for her sister, with whom she was to shop, to locate her. While the officer was standing outside her car looking for her sister, the officer noticed Tilley in a small pick-up truck circling her location several times and parking in front of her car in whatever direction the officer was looking. When Tilley pulled up the third time, the officer observed that he did not have his shirt on.

The officer became suspicious of Tilley’s behavior and got in her car to find paper on which to record his license plate number. Tilley drove around the officer’s car several more times and the officer again exited her car to observe the tag number. As the officer was trying to discern the number, Tilley parked his vehicle two or three parking spaces from her and “thrusted [sic] his entire bottom-half up and was masturbating in the parking lot.” Tilley had “placed his entire self up in the seat so [the officer] could see him.” It was still light out and there was nothing obstructing the officer’s view.

The officer approached Tilley, identified herself as a police officer and told him to get out of his vehicle. Tilley’s pants were at his knees and the officer noticed a roll of toilet paper in the vehicle. Tilley tried to leave. Tilley put his pants back on and the officer walked him to the mall and signed the warrant for his arrest.

1. The general grounds are based on the argument that photographs showed it was a factual impossibility for Tilley to be seen in his truck with his pants down from a distance of forty to fifty feet away.

The jury viewed the photographs and heard the defendant’s explanation of the incident, that he was merely changing into his work clothes. Witness credibility and weight of evidence are jury issues, OCGA § 24-9-80.

The evidence was sufficient to enable a rational trier of fact to find Tilley guilty of public indecency beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Tilley contends the court erred in denying his motion in limine and in granting the State’s motion to introduce evidence of a similar transaction, i.e., a prior act of public indecency for which he had been sentenced and subsequently discharged as a first offender. See OCGA §§ 42-8-60; 42-8-62. He argues solely that OCGA § 42-8-62 as interpreted in Queen v. State, 182 Ga. App. 794 (357 SE2d 150) (1987) barred introduction of the objected-to evidence.

Queen held that the trial court could not consider a prior first offender conviction and discharge in recidivist sentencing under OCGA § 17-10-7 (a). This case differs. Following a hearing, the trial court ruled that the State would not be allowed to introduce evidence of the first offender plea and conviction but only evidence of the transaction itself.

In order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction. Green v. State, 178 Ga. App. 203, 204 (2) (342 SE2d 386) (1986). Here, the disposition was irrelevant.

Only the circumstances of the similar prior incident were explored; there was no evidence of adjudication. In fact, the jury questioned the court about the outcome of the prior incident and the court, with the agreement of counsel, instructed that the jury would hear no further evidence and should make its finding of guilt or innocence on the evidence presented.

Decided September 27, 1990.

Michael S. Weldon, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

The first offender disposition and discharge of the earlier accusation of public indecency did not preclude, under OCGA § 42-8-62 (a), the admission of evidence of the underlying conduct itself for the purpose of showing a similar transaction engaged in by the same person.

We point out that the provisions of OCGA §§ 42-8-62 and 42-8-65 in certain circumstances may not act as a complete bar even to introduction of the first offender conviction itself. Gilstrap v. State, 250 Ga. 814, 816-817 (2) (301 SE2d 277) (1983), e.g., held that a defendant could attempt to impeach a witness with the witness’ first offender record even though the witness had fulfilled the terms of first offender probation.

Judgment affirmed.

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