text:
    A99A1724.
    WILBORN v. BLAKE.
    (530 SE2d 778)
   Phipps, Judge.

Valerie Blake brought this medical malpractice action against Dr. Wesley Wilborn. The jury returned a verdict awarding Blake $133,750 in damages. Wilborn appeals the final judgment. The primary issue is whether the testimony of Blake’s expert witness was sufficient to support a finding of professional negligence. We hold that it was and affirm.

On Thursday, October 29, 1992, Blake was suffering from pain in her right index finger and sought treatment from Wilborn, a board-certified dermatologist. A week earlier Wilborn had attended a seminar where he had been presented with a case involving glomerulus tumors of the fingertips. Although glomerulus tumors are very rare, Wilborn diagnosed Blake as having such a tumor based on a physical examination that took about five minutes. On Monday, November 2, Wilborn performed an in-office surgical procedure to remove Blake’s fingernail and excise the tumor.

Blake returned to Wilborn’s office on Tuesday, November 3, because her finger would not stop bleeding. At that time, Wilborn applied a pressure dressing and ordered Blake to return to his office on Friday, November 6. Instead she came to the office on Thursday, November 5, complaining of swelling, pain, discoloration, and compromised circulation in the finger. Wilborn then diagnosed Blake with a post-operative infection and prescribed the antibiotic Keflex.

Wilborn was absent from his office from November 6 through 13. On November 13, Blake returned to his office with the same basic complaints she had made on November 5. He then referred her to a vascular surgeon. Two-thirds of her finger had to be amputated because of gangrene. A pathology report showed that Blake in fact had a hemangioma tumor.

Dr. Jacob Rispler, a board-certified dermatologist, was Blake’s expert witness. His testimony was presented to the jury through the reading of his deposition at trial. Based on his review of Blake’s medical chart and other matters of record, Rispler testified that it was unclear whether her finger showed signs of infection when she first appeared at Wilborn’s office on October 29. According to Rispler, “an infection would have to be ruled out before [surgery] was anticipated.” When asked to identify diagnostic tools which could have been, used to determine whether a tumor was present, Rispler responded that Wilborn could have ordered an x-ray or a culture of the finger or could have performed blood work. Rispler testified that at least one of those diagnostic tests “should have been done” before surgery was undertaken and that an x-ray probably would have confirmed the absence of a glomerulus tumor. Rispler opined that, insofar as surgical removal of the tumor was concerned, “the standard of care” required Wilborn to refer Blake to a hand or vascular surgeon or to perform the surgery in a sterile, outpatient operating room rather than in his office. Rispler noted that different surgical techniques are used for removal of glomerulus tumors and hemangioma tumors. When asked to specify the differences, he acknowledged that it was outside his expertise as he refers all surgical patients to experienced surgeons.

Rispler further testified that when Blake returned to Wilborn’s office on November 3 with continued bleeding, “the standard of care would have been to immediately call either a vascular and/or hand surgeon, even a general surgeon and have somebody — expert in this area help you with the postoperative course.” According to Rispler, Wilborn should have prescribed an antibiotic on November 3 and should not have applied a pressure dressing for more than a few hours because it can compromise circulation. Rispler also condemned Wilborn’s prescription of Keflex on November 5, because Rispler thought a staphylococcus infection was indicated at that point, and “Keflex is never used as a treatment for staphylococcus infection.” Rispler testified that Wilborn’s overall treatment of Blake’s finger did not meet the applicable standard of care and that, in his opinion, amputation of the finger would not have been necessary if “the standard of care” had been met.

1. Wilborn charges the trial court with error in denying his motions for directed verdict and judgment notwithstanding the verdict.

A directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. The same standard applies to a motion for j.n.o.v.

(a) Wilborn challenges the sufficiency of Rispler’s testimony to show that in treating Blake he had breached the applicable standard of care.

Generally, a cause of action will lie against a physician . . . who does not bring to the exercise of his profession a reasonable degree of care and skill. . . . “The standard of care and skill ... is that which, under like circumstances and in similar conditions, is employed by the medical profession generally. [Cits.]” [Cits.]

Consequently, Brannen v. Prince holds that testimony in a medical malpractice action showing nothing more than a mere difference in views as to medical judgment exercised is insufficient to support an action for malpractice. Wagner v. Timms holds that testimony by the expert that “in his opinion certain procedures should have been utilized” also does not establish the standard. In reliance on cases such as Brannen and Wagner, Wilborn argues that Rispler’s testimony did not establish that he breached the standard of care. This argument is without merit. In numerous regards, Rispler testified that Wilborn’s treatment of Blake’s finger should have been performed in a different manner and did not comport with the standard of care.

(b) Wilborn asserts that Rispler’s testimony was insufficient because he failed to state in his deposition that he was familiar with the applicable standard of care.

Although Rispler averred in his OCGA § 9-11-9.1 affidavit that he was familiar with the applicable standard, he did not repeat this averment in his deposition. But the trial court charged the jury on the applicable standard, and Rispler’s qualifications as set forth in the deposition authorized the jury to find that he was familiar with it. The jury was authorized to. find that in testifying concerning requirements imposed by “the standard of care,” Rispler was referring to the applicable standard under Georgia law.

(c) Wilborn also challenges the sufficiency of Rispler’s deposition testimony on the ground that it was not based on properly framed hypothetical questions.

Rispler’s opinions were based on facts which were admitted through the testimony of witnesses at trial and documentary evidence. “For an expert to give his opinion based upon a certain state of facts, those facts must be supported by evidence admitted into the record.” Wilborn has waived his complaint as to the form of the questions by failing to raise any objections on that ground at trial.

2. Wilborn next contends that the trial court erred in failing to construe self-contradictory testimony of Rispler against Blake.

The rule relied on by Wilborn is that “where a party offers himself as a witness and his testimony is self-contradictory, vague, or equivocal, his testimony is to be construed most strongly against him. [Cit.]” “This rule applies only to the testimony of a party to the suit who offers himself as a witness and not to the testimony of a witness who is not a party. [Cit.]” The self-contradictory testimony rule does not apply to expert witnesses. Moreover, it does not appear that Wilborn sought to invoke the rule against Rispler or that Rispler’s testimony was self-contradictory. We, therefore, find no merit in this enumeration.

Judgment affirmed.

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

Decided March 9, 2000

Sumner & Riexinger, Stephen P. Riexinger, for appellant.

Gibson & Spivey, Douglas L. Gibson, for appellee.

        Norfolk Southern Corp. v. Smith, 262 Ga. 80, 83-84 (2) (414 SE2d 485) (1992).

        Goggin v. Goldman, 209 Ga. App. 251, 252 (433 SE2d 85) (1993).

        Lorentzson v. Rowell, 171 Ga. App. 821, 824 (321 SE2d 341) (1984).

       204 Ga. App. 866, 867 (2) (421 SE2d 76) (1992).

       158 Ga. App. 538, 539 (1) (281 SE2d 295) (1981).

       (Emphasis omitted.) Id.

       (Footnote omitted.) Columbus v. State, 270 Ga. 658, 666 (5) (513 SE2d 498) (1999).

        Manees v. Scicchitano, 122 Ga. App. 591, 592 (1) (b) (178 SE2d 262) (1970).

       Id.

        Ezor v. Thompson, 241 Ga. App. 275, 276 (1) (526 SE2d 609) (1999).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A1736.
    CUMMINGS v. THE STATE.
    (530 SE2d 782)
   Barnes, Judge.

Reginald M. Cummings appeals his conviction for trafficking in cocaine. He contends the trial court erred by admitting in evidence a statement he made, while in police custody but without Miranda warnings, that a jacket was his and also admitting in evidence the testimony of a police investigator concerning the practices of drug dealers. We affirm for the reasons stated below.

Viewed in the light most favorable to the verdict, the evidence showed that Cummings was alone in a motel room when sheriff’s deputies arrived to execute a warrant to search the room for cocaine. The deputies detained Cummings in the room while they searched. They found 93 pieces of crack cocaine on and in a dresser in the room.

A black jacket was also in the room, and a deputy asked Cummings if it belonged to him. When he said that it did, the deputy searched the jacket and found another piece of crack cocaine. At the time of this questioning, the deputy believed that Cummings was in custody but testified that he did not give Cummings Miranda warnings because he did not question Cummings and they were not necessary. At trial, Cummings moved in limine to exclude his statement about the jacket, but the trial court denied the motion.

Because the motel room was not registered in Cummings’s name, one of the deputies testified, over Cummings’s objection, that in his experience it was not unusual for dealers to be found in rooms registered to others. The dealers would have users rent the rooms in their names so that in the event a search warrant was executed at the room, the dealers could say that it was not their room. The total weight of the crack cocaine found in the search was a little over 28.5 grams.

1. Cummings contends the trial court erred by allowing the deputy to testify that Cummings acknowledged ownership of the jacket because his statement was the result of custodial interrogation which was not preceded by Miranda warnings. We disagree.

Not all questioning constitutes interrogation for Miranda purposes. Routine questioning “not related to the investigation of the case nor designed, expected, or likely to elicit information relevant to guilt” does not amount to a custodial interrogation. Shy v. State, 234 Ga. 816, 822 (I) (218 SE2d 599) (1975). Some initial on-the-scene inquiry is permissible before Miranda warnings are given if the questioning is not aimed at establishing a suspect’s guilt but is instead aimed at determining the nature of the situation. Lolley v. State, 259 Ga. 605, 606-607 (2) (b) (385 SE2d 285) (1989). Given the circumstances of the deputy’s question to Cummings, we do not find that Miranda warnings were required. Futch v. State, 145 Ga. App. 485, 488-489 (3) (243 SE2d 621) (1978). Accordingly, the trial court did not err by denying Cummings’s motion. Further, because of the overwhelming evidence establishing Cummings’s guilt, we find it highly probable that even if admitting the statement about the jacket was error, the error did not contribute to the judgment and that the error was harmless beyond a reasonable doubt. McGee v. State, 209 Ga. App. 261, 262 (1) (433 SE2d 374) (1993).

Decided March 9, 2000.

James P. Theodocion, for appellant.

2. Cummings alleges that the trial court erred by allowing the deputy to testify about his experience regarding dealers having users rent motel rooms because this information was not relevant to the issues in the case. Questions of relevancy are generally matters within the trial court’s discretion. Sleeth v. State, 197 Ga. App. 349, 350 (3) (398 SE2d 298) (1990). In this case, we cannot agree that this evidence was not relevant because this was a trafficking case. The testimony rebuts or explains the defense’s potential argument that the room was not under Cummings’s control because the room was not registered in his name. Moreover,

the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.

(Citations and punctuation omitted.) Dept. of Transp. v. Swanson, 191 Ga. App. 752, 754 (3) (382 SE2d 711) (1989). Accordingly, the trial court did not abuse its discretion by denying Cummings’s motion in limine.

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A99A1893.
    In the Interest of L. H. et al., children.
    (530 SE2d 753)
   Barnes, Judge.

The natural father of L. H., N. H., and W. H. appeals the termination of his parental rights; the natural mother’s parental rights were also terminated, but she is not a party to this appeal. The father contends the evidence is insufficient to support the termination of his parental rights because, at the conclusion of the hearing, the juvenile court announced that “[fit’s apparent from my interview with the two oldest children that they have some attachment for their parents and strong memories and some bond at least with their mother. They seem to derive some benefit from their relationship with their parents.” Based on this finding, the juvenile court announced in open court that it was not in the children’s best interests to terminate the parents’ parental rights.

Approximately a month later, however, without receiving further evidence, the juvenile court issued an order terminating both parents’ parental rights because “[t]he Court finds clear and convincing evidence that the children would most benefit from adoption with the legal and physical insulation from these unfit parents that procedure [] provides.”

Although the father contends that clear and convincing evidence does not support the court’s finding that termination of his parental rights would be in the best interests of the children, no error is enumerated regarding the juvenile court’s other determinations: that the children were deprived (OCGA § 15-11-81 (b) (4) (A) (i)) through parental neglect or inability (OCGA § 15-11-81 (a)) and that the deprivation is likely to continue (OCGA § 15-11-81 (b) (4) (A) (iii)). Accordingly, no issue concerning those decisions is properly before this court. Issues not enumerated as error will not be considered. Rider v. State, 226 Ga. 14, 15 (2) (172 SE2d 318) (1970). Therefore, the only issue before this court is whether clear and convincing evidence supports the juvenile court’s decision that termination of the father’s parental rights would be in the best interests of the children. For the reasons stated below, we affirm the decision of the juvenile court.

1. The standard of review in these cases is whether, after viewing the evidence in a light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been lost. OCGA § 15-11-86; In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993). On appeal, this court defers to the trial court’s factfindings and will affirm unless the appellate standard is not met. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

2. The juvenile court’s statement in court that the parental rights would not be terminated is of no legal significance. A trial court’s oral pronouncement is not a judgment until it is put in writing and entered as the judgment. Williams v. City of LaGrange, 213 Ga. 241, 242 (1) (98 SE2d 617) (1957). The trial court’s oral pronouncements on the record may provide insight on the intent of its subsequent written judgment, discrepancies between the two pronouncements must be resolved in favor of the written judgment. In the Interest of R. R., 222 Ga. App. 301, 305 (3) (474 SE2d 12) (1996) (physical precedent). Thus, the juvenile court’s oral statements on the record were not binding. Moreover, the juvenile court explained in its written order that its oral comments were based on the court’s belief at the time that “it would be advisable for custody to be transferred to the maternal grandparents under the newly effective Code section 15-11-34 [(a) (2)] so that the children would have a permanent home and would have the possibility of a continuous income stream from their father and mother.” After making these comments, however, the court reconsidered them based on further study of the new Code section.

3. Therefore, the only question before us is whether the juvenile court’s decision to terminate the father’s parental rights was supported by clear and convincing evidence. In reaching this decision, the juvenile court could properly consider the father’s past conduct in determining whether the children’s deprivation is likely to continue. In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). Further, the evidence supporting the juvenile court’s determination that the children were deprived and that the deprivation was likely to continue can also provide clear and convincing evidence to support the conclusion that continued deprivation will or is likely to cause serious harm to the children. OCGA § 15-11-81 (b) (4) (A) (iv); In the Interest of D. T, 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996). In this case, the father never appealed the juvenile court’s orders holding that the children were deprived, and these unappealed orders are sufficient to establish that the children were deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995).

The record shows the parents separated several times during their marriage until they finally separated for good in 1992. The father’s relationship with the children effectively ended in July 1994 when the children were removed from the parents’ custody because the children were deprived; the mother had been arrested for drug abuse and the father was suspected of having a drug problem. The court order placing the children in the Department of Family & Children Services’ custody stated

[the father] shall obtain a drug assessment which shall indicate whether [he] has a drug abuse problem. If the drug assessment shows that [he] does not have a drug abuse problem, then the temporary custody of the children shall automatically, without additional hearing, revert back to the father of the children.

Although the father asserts that he did not obtain the drug assessment because he was arrested the next day, the father also never obtained a drug assessment after he was released, even though the order remained in effect. Further, while he lived in Virginia, the father agreed to have a drug screen performed but would not agree to bear the expense.

As a consequence of the mother’s repeated incarcerations for drug abuse and other offenses, the children lived with their maternal grandparents from July 1994 until the termination hearing in July 1998. Finally, when he learned that the citizens review panel had recommended that DFCS seek termination of his parental rights, the father requested a hearing to show that he was serious about providing a permanent home for his children. The record, however, shows no evidence supporting such a conclusion. Rather than providing a home for his children, the father lived with his mother. Further, on the day of the hearing, the father had $48 in cash, no savings, and some personal property.

As soon as the father was released from confinement in 1994, he left the state to live in Virginia. Although he called them occasionally and sent presents on birthdays and Christmas, he has not seen his children since July 1994. Further, the father was given an opportunity to see his children when the caseworker arranged a meeting, but the father returned to Virginia without doing so. At the time of the termination hearing he was living with his mother in South Carolina.

Although the court ordered him to make support payments, he stopped making those payments in June 1997 allegedly because he was dissatisfied with the contact he had with the children. At the time of the hearing he was over $15,000 in arrears in the payments ordered as part of the reunification plan and the payments previously ordered by the superior court to support his children.

Based on this evidence, the juvenile court concluded that the father failed, without justification, to provide significant financial support for his children for more than one year; he had abandoned his children; he failed for more than one year to comply with the reunification plan; he failed for over four years to produce a drug assessment; he actively thwarted the authorities who were attempting to study whether his home was suitable for his children; and he failed to make any realistic effort to regain custody of the children.

Decided March 9, 2000.

James K. Knight, Jr., for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Sanders B. Been, for appellee.

The juvenile court further found that the continued deprivation was likely to continue and to cause further harm to the children. The children were confused about who their parents were and had little actual memory of their father. “They could not describe him physically.” Having found that the children would most benefit from adoption, the juvenile court terminated the father’s parental rights.

We find that clear and convincing evidence supports the juvenile court’s decision to terminate the father’s parental rights. Regardless of the father’s continued promises to do better in the future, his demonstrated inability or unwillingness to shoulder his responsibility as a parent was demonstrated by clear and convincing evidence. The termination was in the best interests of his children. In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998).

Accordingly, the judgment of the juvenile court is affirmed.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Johnson, Chief Judge.

text:
    A99A1904, A99A1905.
    KUEHN v. SELTON & ASSOCIATES, INC. et al.; and vice versa.
    (530 SE2d 787)
   Johnson, Chief Judge.

In these appeals we decide whether the parties to an employment contract were entitled to summary judgment regarding the enforceability, performance and meaning of noncompetition and other provisions contained in the agreement.

Brad Kuehn worked for Selton & Associates, Inc. (“SAI”) as a commercial real estate agent and broker. He negotiated office lease transactions with landlords on behalf of SAI’s clients, which were tenants. When the transactions were completed, the landlords paid SAI commissions, which SAI shared with its agents who handled the transactions. Believing that SAI was not paying him the commissions it owed him, Kuehn resigned from his position. A short time later, he established Atlanta Office Realty, Inc. (“AOR”), of which he was the only officer and employee. During his affiliation with AOR, Kuehn used information received during his tenure at SAI and competed with SAI in some lease transactions.

Kuehn sued SAI and its sole shareholder, Daniel Selton, for breach of contract and conversion, seeking to recover commissions he believes were due him but not paid. SAI countersued, claiming Kuehn breached the contract’s noncompetition and other provisions and improperly used and disclosed confidential information and trade secrets belonging to SAI after leaving the company.

The trial court denied summary judgment to Kuehn as to the enforceability of the restrictive covenant, finding that the covenant not to compete was reasonable, and granted partial summary judgment to SAI on Kuehn’s claims for breach of an oral contract and conversion. The trial court denied summary judgment to SAI on the issues of whether Kuehn gave proper notice of termination, whether he violated the restrictive covenant, whether he breachéd the agreement by not finishing deals through SAI, whether he divulged trade secrets and confidential information, and whether Kuehn breached his fiduciary duties. The trial court found that issues regarding attorney fees and punitive damages would also be left for the jury and provided in its order that any matters not specifically addressed in the order but contained in the parties’ motions for summary judgment were denied. Kuehn appeals in Case No. A99A1904. SAI and Selton appeal in Case No. A99A1905.

Case No. A99A1904

1. Paragraph 26 of the employment agreement provides in pertinent part that: “Upon expiration or cancellation of this contract. . . [Kuehn] will not compete with SAI on extensions, expansions, or renewals of SAI clients as long as Tenant remains in the building or project.”

Kuehn contends the trial court erred in denying his motion for partial summary judgment regarding the enforceability of this restrictive covenant because it is too broad to be enforceable. We agree.

A contract in general restraint of trade or which tends to lessen competition is against public policy and is void. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). A restrictive covenant contained in an employment contract, however, is considered to be in partial restraint of trade and will be upheld if the restraint imposed is reasonable, is founded on a valuable consideration, is reasonably necessary to protect the interest of the party in whose favor it is imposed and does not unduly prejudice the interest of the public. Id. A restrictive covenant will be enforced only if it is reasonable in terms of duration, territory, and the scope of activity precluded. Chaichimansour v. Pets Are People Too, No. 2, 226 Ga. App. 69, 70 (1) (485 SE2d 248) (1997); Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 62 (2) (449 SE2d 858) (1994). To be reasonable, it must be strictly limited as to time and territorial effect. Davis v. Albany Area Primary Health Care, 233 Ga. App. 311, 312 (503 SE2d 909) (1998). If any clause within a restrictive covenant is unenforceable, the entire covenant must fail; we will not apply the blue pencil theory of severability to restrictive covenants in employment contracts. Wolff v. Protege Systems, 234 Ga. App. 251, 254-255 (1) (d) (506 SE2d 429) (1998).

The restriction at issue in this appeal is unreasonable in terms of duration. It cannot be determined from the contract how long Kuehn’s activities would be restricted. The language “as long as Tenant remains in the building or project” renders the restriction operable for an indefinite number of years. It does not limit itself to the initial lease term (which, incidentally, might be any number of years) but includes all extensions, expansions and renewals of SAI clients. In fact, a close reading of the language shows that Kuehn would be precluded from competing with former clients of SAI which entered into renewals, extensions or expansions of leases so long as they remain in the building, even if the renewals, extensions or expansions were negotiated by the tenants and landlords independently of SAI. The restriction has the potential to be effective for decades. The covenant is therefore unreasonable and unenforceable. See generally Orkin Exterminating Co. v. Walker, 251 Ga. 536, 538 (2) (a) (307 SE2d 914) (1983); Gynecologic Oncology v. Weiser, 212 Ga. App. 858, 859 (2) (443 SE2d 526) (1994).

Furthermore, the territory is not reasonably limited. Where the restriction is broad — for example, not limited to clients the employee served — the territorial limitation must be specified and closely tied to the area in which the employee actually worked. See Chaichimansour, supra at 70-71 (1); see generally W. R. Grace, supra at 466 (2); Nunn v. Orkin Exterminating Co., 256 Ga. 558, 559 (1) (a) (350 SE2d 425) (1986); Puritan/Churchill Chem. Co. v. McDaniel, 248 Ga. 850, 851 (1) (286 SE2d 297) (1982); Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184 (1) (236 SE2d 265) (1977). The noncompetition clause at issue neither limits itself to clients served by Kuehn nor specifies a territory closely tied to the area in which he worked. In fact, not only is the territory not closely tied to an area in which Kuehn worked, but the affected territory is not even specified. The covenant does not disclose the locations of the affected buildings or projects. See, e.g., Guffey v. Shelnut & Assoc., 247 Ga. 667, 668 (278 SE2d 371) (1981). Indeed, SAI’s clients could be performing under current lease agreements in several counties or even several states. The burden imposed on Kuehn to determine where SAI’s clients are and whether he is in violation of the covenant in accepting a particular client is unreasonable. See Fuller v. Kolb, 238 Ga. 602, 604 (234 SE2d 517) (1977). The covenant is therefore unreasonable in terms of territory. In light of either defect, that as to territory or duration, the entire restrictive covenant is unenforceable. See Wolff, supra.

We disagree with SAI’s argument that the provision is reasonable because it is based on an administrative regulation promulgated by the Georgia Real Estate Commission. Assuming, without deciding, that a contractual provision is valid per se when it is based on an administrative regulation, the rule cited does not support SAI’s argument.

The rule relied upon provides, in relevant part, that:

Whenever a licensee decides to terminate an affiliation with a firm, such licensee may not have any contact with any of the firm’s clients that the licensee is serving under a listing, management agreement, or other brokerage engagement until the expiration of such a brokerage engagement. . . .

Official Compilation of Rules & Regulations of the State of Ga., Rule 520-l-.il (6).

The rule prohibits contact with the firm’s clients that the licensee is serving. Thus, the administrative rule relates only to the agent’s actual clients, making it narrower than the contractual provision relied upon by SAI, which relates to the employer’s clients. See generally Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376, 377-378 (1) (297 SE2d 473) (1982). The trial court erred in denying Kuehn’s motion for partial summary judgment on the enforceability of the restrictive covenant.

2. Kuehn claims the trial court erred in granting partial summary judgment to SAI on Kuehn’s conversion claim because a jury issue was presented as to whether SAI and Selton would be liable for conversion. We disagree.

The contract provides that Kuehn is to be paid a percentage of the commissions generated by his efforts when the commission is received by SAI. Kuehn’s conversion claim was properly struck because it was based on a mere failure to pay money due under a contract. See Faircloth v. A. L. Williams & Assoc., 206 Ga. App. 764, 766 (1) (426 SE2d 601) (1992). This is not the type of case for which a cause of action for conversion was intended. Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751 (1) (365 SE2d 494) (1988).

3. Kuehn contends the trial court erred in denying his motion for partial summary judgment on SAI’s claim that he misappropriated trade secrets and used confidential information to compete with SAI. This enumeration is without merit.

The contract provides that all client and business data are confidential and will not be given out without written authorization. In its counterclaim, SAI claimed that Kuehn misappropriated trade secrets by using SAI’s client lease documents to execute transactions through AOR. Kuehn concedes that he used SAI’s documents and information in connection with his work at AOR but says that SAI voluntarily gave him copies of those documents when he left and that he did not give the information to any third parties.

Kuehn conceded on deposition that the documents used are subject to the nondisclosure provision of the contract but argues that his use of the information while at AOR was not a breach, since he is AOR’s sole employee and officer and so did not disclose the information to anyone. Kuehn overlooks the fact that a corporation possesses a legal existence separate and apart from that of its officers and shareholders. Despite Kuehn’s attempt to be viewed as the alter ego of the corporation, he and AOR are considered separate legal entities. See Clark v. Cauthen, 239 Ga. App. 226, 227-228 (2) (520 SE2d 477) (1999). Whether he and the corporation should be treated as a single entity is generally a jury question. Id. Kuehn was not entitled to summary judgment on this issue.

Kuehn’s argument that he was entitled to summary judgment on SAI’s claim that he misappropriated trade secrets is also without merit. He contends that he cannot have misappropriated trade secrets when SAI gave him copies of the files. However, the Georgia Trade Secrets Act not only prohibits wrongful acquisition of trade secrets, it prohibits disclosure of trade secrets acquired under circumstances in which one has a duty to limit use of the information. OCGA § 10-1-761 (2) (B) (ii) (II), (III).

We point out that the parties make no argument as to whether the information at issue actually constitutes trade secrets. See OCGA § 10-1-761 (4). Indeed, we are not convinced that documents such as lease documents, which are often recorded as public documents, would generally come within the definition of trade secrets. And we note that while client lists may fall within the ambit of trade secrets, that is not inherently true of the information itself contained on the documents. Crews v. Roger Wahl, C.P.A, P.C., 238 Ga. App. 892, 898, n. 4 (520 SE2d 727) (1999). In any event, Kuehn testified that he took the files with the intent of using them to further SAI business. The trial court did not err in finding a genuine issue of material fact remained as to whether Kuehn misappropriated trade secrets and improperly used confidential information.

4. Kuehn argues that the trial court erred in granting SAI’s motion for summary judgment on his oral contract claim and in failing to grant his summary judgment motion as to SAI’s defenses based on the statute of frauds and the merger clause contained in the written agreement. Kuehn claims SAI orally agreed to pay him ten percent of the commissions SAI earned as a result of work performed by agents Kuehn recruited for SAI but that SAI failed to pay him his share of those commissions after the first year.

The court properly struck Kuehn’s claim as to an oral agreement. Paragraph 28 of the written agreement provides that it is the entire agreement and that there are no prior oral agreements between the parties. The record shows that the subject of the alleged oral agreement was discussed before the parties signed the written contract. Since it was not included in the written agreement, Kuehn’s claim is barred. See Great American Builders v. Howard, 207 Ga. App. 236, 240 (2) (427 SE2d 588) (1993). Furthermore, the statute of frauds barred any' such agreement because it was not to be performed within a year. OCGA § 13-5-30 (5).

5. Kuehn contends the trial court erred in denying his motion for summary judgment on SAI’s claims which were based on the alleged ineffectiveness of his oral termination of the contract.

SAI moved for partial summary judgment claiming, in part, that Kuehn breached the agreement by failing to properly notify SAI of his intention to stop working for SAL Because Kuehn breached the agreement, SAI argued, he is precluded from relying on the agreement to seek relief, and SAI is entitled to recover from him damages it incurred as a result of his breach. Specifically, SAI contended it is entitled to share in commissions Kuehn received during 1995, the year of his ineffective resignation. Kuehn filed a cross-motion for summary judgment on the same issue, arguing that the resignation notice was effective, and moved for judgment on SAI’s claims which were based on ineffective notice. The trial court ruled that Kuehn’s resignation was effective and denied SAI’s motion. At the same time, however, the trial court denied Kuehn’s cross-motion for partial summary judgment based on this same issue by not expressly granting his motion and by stating in its order that it denied all motions not expressly granted. The trial court erred in not granting Kuehn’s motion for summary judgment as to SAI’s claims which were based on the ineffectiveness of the termination notice.

6. Paragraph 10 of the contract provides that if the contract is terminated, “any and all deals that have been started through SAI will be finished through SAI and all commissions payable under the Contract shall continue for thirty (30) years.”

SAI asserted in its counterclaim that Kuehn breached the agreement by not finishing through SAI all deals he started in 1995. The trial court ruled that Kuehn did not breach the contract in this regard. This ruling was predicated upon a dispute between Kuehn and SAI regarding what the language meant. After finding an ambiguity and applying the rules of contract construction, the trial court construed the language in favor of Kuehn and against SAI, the document’s drafter. Having done that and finding no genuine issue of material fact remaining, the trial court precluded any recovery by SAI on this particular claim. Although the trial court did not specifically address Kuehn’s summary judgment motion on this issue, the court stated in its order that all motions not specifically addressed in the order are denied. However, upon finding that Kuehn did not breach the completion provision of the agreement, the trial court should have granted summary judgment to Kuehn on SAI’s claims which were based on his failure to complete deals through SAI.

Case No. A99A1905

7. SAI claims the trial court erred in finding that paragraph 10 of the contract, providing that any deals started through SAI must be finished through SAI, is ambiguous. SAI contends that, although the trial court made no such express finding, it did so implicitly by applying the rules of contract construction. We find no error.

In construing a contract, the trial court must first decide whether the contract language is ambiguous; if it is, the trial court must next apply the applicable rules of construction (OCGA § 13-2-2) to try to resolve the ambiguity. Alpha Beta Dickerson Southeastern v. White Co., 235 Ga. App. 273, 274 (1) (509 SE2d 351) (1998). Contract language is ambiguous if it is duplicitous, indistinct or has an uncertain meaning. Id.

In this case, the provision is ambiguous. As Kuehn points out, the meaning of the language “all deals that have been started” is unclear. The contract does not define when a deal starts. Selton acknowledged in his deposition that the term is “a very difficult term to define” and that it can have different definitions. According to Kuehn, a deal starts when the agent meets with the landlord and the tenant together. Selton, on the other hand, believes a deal starts when the tenant retains the broker to handle the deal. The trial court did not err in determining that the phrase is ambiguous.

SAI further complains that even if an ambiguity does exist, the trial court erred in construing it against SAI based on SAI having authored the contract, because the evidence was in dispute regarding Kuehn’s participation in the drafting of the contract.

Decided March 9, 2000

Kitchens, Kelley & Gaynes, Mark A. Kelley, for appellant.

Troutman Sanders, William M. Droze, Daniel S. Reinhardt, for appellees.

We do not agree that a jury issue was presented here. Although Selton stated in his deposition that he and Kuehn drafted the agreement, he also said that he (Selton) drafted the contract and that Kuehn made changes to and discussed it. Selton could not recall what changes Kuehn made. Kuehn averred that the contract was a form contract and denied that he negotiated any changes to the contract or drafted any part of the contract. Even if, as SAI claims, Kuehn negotiated changes to and discussed the contract drafted by Selton, there is no evidence that Kuehn drafted or participated in the drafting of paragraph 10. The trial court did not err in construing the ambiguity against SAL See generally Stinson v. Artistic Pools, 236 Ga. App. 768, 769 (1) (513 SE2d 510) (1999); Chem Tech Finishers v. Paul Mueller Co., 189 Ga. App. 433, 435 (3) (375 SE2d 881) (1988).

Judgment affirmed in Case No. A99A1905. Judgment affirmed in part and reversed in part in Case No. A99A1904. McMurray, P. J., and Phipps, J., concur.

       Kuehn also argues extensively about the enforceability of paragraph 27. However, SAI has not tried to enforce that provision, and it is not at issue in the case. Moreover, paragraph 27 is not enforceable if paragraph 26 is not enforceable. See Ward v. Process Control Corp., 247 Ga. 583, 584 (2) (277 SE2d 671) (1981); T. V. Tempo, Inc. v. T. V. Venture, Inc., 244 Ga. 776, 778 (262 SE2d 54) (1979).

       We address SAI’s claim that this was error in Case No. A99A1905.


author: Smith, Judge.

text:
    A99A1938.
    MANSFIELD et al. v. COLWELL CONSTRUCTION COMPANY.
    (530 SE2d 793)
   Smith, Judge.

James Mansfield and Vicki Golden (collectively “Mansfield”) as the natural parents of their deceased son, Shane Mansfield, brought a personal injury action against Colwell Construction Company (“Colwell”), the operator of a rock quarry, the site of Shane’s tragic death. Chris Wilson, the driver of the minivan in which Shane had been a passenger, was also sued. The gist of the complaint was that the joint negligence of both defendants combined to proximately cause Shane’s death.

After cross-claiming against Wilson, Colwell moved for summary judgment on several grounds. Colwell argued that the decedent’s injuries were caused by unforeseen intervening acts of others, that Shane failed to exercise ordinary care for his own safety, and that he failed to use such ordinary care as would have avoided the consequences of any alleged negligence of Colwell. Colwell also claimed it had denied the public a right of access to its property and denied the existence of a public road up to its spoil area where the incident purportedly took place. Finding no genuine issues of material fact remaining for jury resolution, the trial court granted summary judgment to Colwell. Mansfield appeals that determination. Because we find that Colwell was entitled to summary judgment, we affirm.

This case arose after Wilson and Shane proceeded up into an unpaved, unlit remote area located within the Whitepath quarry, a rock quarry and rock-crushing facility operated by Colwell. This quarry consisted of about 600 acres north of Ellijay. Within the quarry was a large mound of dirt or “spoil area” artificially created from excess material extracted from the ground during mining operations. In their complaint and throughout discovery, the plaintiffs identified the same area as a “scenic plateau.” Although Colwell concedes that its spoil area afforded a good view of the nearby mountains and was visible from a public highway, the manager of the quarry testified that this area was not open to the general public. Nor could this area be directly accessed by means of the public road that went through Colwell’s property. Colwell had used this spoil area for 12 to 15 years and had seeded the top of the mound with grass for erosion control.

Wilson, who had never previously been to this quarry, testified that he had absolutely no recollection of anything that occurred after leaving the driveway of Shane’s father’s home. On the night in question, piles of waste material were on the front end of the spoil area, thereby effectively blocking the pathway leading to the top. James Mansfield surmised that a pile of rocks in the middle of the road created an obstruction which forced the driver to reverse course; then during an attempt to turn around, the van’s rear wheels may have slid off the edge of the bluff. Shane’s death probably occurred after the van plunged off the edge of Colwell’s spoil area, falling approximately 200 feet to the ground. James Mansfield testified that he noticed some car tracks down one side of the embankment.

Hours before this incident, Shane, age 20, and Wilson, then age 19, had gone to a local swimming area near Shane’s father’s house. According to the testimony of several witnesses, while at the swimming area, Wilson and others were drinking beer and smoking marijuana. Before the group dispersed at about 5:00 or 6:00 p.m., while it was still daylight, Shane’s stepmother, Faye Mansfield, told Wilson she would be driving his van back to the house because she was concerned about his drinking and, for that reason, afraid to let him drive. After changing clothes, Wilson and Shane left nearly immediately with Wilson driving the 1987 Dodge Caravan owned by Wilson’s father-in-law. According to both Wilson and Faye Mansfield, Shane knew that Wilson did not have a driver’s license. Several hours later, at about 10:30 or 11:00 p.m., Wilson’s in-laws informed James Mansfield and his family that Wilson had been involved in an accident and Shane was missing. Shane’s body was found five days later at the bottom of the quarry’s spoil area. Wilson, who pled guilty to involuntary manslaughter, was unable to recall any of the details relating to the incident.

To support its motion for summary judgment, Colwell offered the depositions of Carlton Colwell, the property owner, and Steven Col-well, the operator of the quarry. Both Colwells denied having any knowledge about any public use of the quarry’s spoil area. No evidence showed that Colwell had given its express permission to Wilson or Shane to be on or near its spoil area on a Saturday night, during a time when the quarry was closed. Although Colwell apparently had not posted any warning signs or “no trespassing” signs on the road leading to its spoil area, Steven Colwell denied having any awareness of any other instance when members of the general public had gone out onto that bluff. He testified that he had never seen anyone out there and that “we don’t allow people on our property.”

Mansfield offered the affidavit of Keith Tipton and the testimony of two others to attempt to prove that this so-called scenic plateau had been used for recreational purposes, including four-wheeling. Relying on such evidence, Mansfield contends that Shane was present on Colwell’s property as a licensee. Colwell, however, counters that the decedent and Wilson were mere trespassers, but even if they were licensees, it owed only a limited duty to them. See OCGA §§ 51-3-1; 51-3-2.

By definition, a licensee is one who is not a customer, a servant, or a trespasser, who does not stand in any contractual relation with the owner of the premises, and is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification. OCGA § 51-3-2. The landowner or occupier of the premises owes a duty to a licensee only to avoid knowingly letting him run upon a hidden peril or wilfully causing him harm. Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331) (1968); see London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (2) (267 SE2d 214) (1980). The duty owed to a trespasser is to avoid wilfully or wantonly injuring him. Atlantic Steel Co. v. Cleaton, 52 Ga. App. 502, 506 (183 SE 827) (1936) (physical precedent only). Even when a property owner knows that it is customary for trespassers to come upon the premises, the duty owed is merely “to refrain from wilfully and wantonly injuring him once his presence [is] known; and no duty of anticipating the decedent’s presence [is] imposed. [Cit.]” Barber v. Steele, 133 Ga. App. 290, 292 (1) (211 SE2d 133) (1974).

• Even assuming solely for the sake of argument that Shane had the legal status of a licensee, and further assuming that the hazardous condition was either the pile of waste material consisting of rock or dirt which blocked the path to the spoil area or was the spoil area itself, Colwell could be held liable only in the event that four conditions were satisfied. Patterson, supra at 328. If the pile of rock or dirt obstructing the path to the spoil area comprised the hazard on Colwell’s property, then Mansfield had to prove: (1) Colwell knew or should have known that the pile of rock or dirt involved an unreasonable risk of harm; (2) Colwell should have expected that the pile of rock or dirt would not be discovered; (3) Colwell failed to exercise reasonable care to make the condition safe or to warn about it; and (4) Shane did not know or have reason to know of the condition and the risk involved. Id. Since a huge pile of rock or dirt blocking a pathway is readily distinguishable from an obscured hole plunging unseen down into the earth, we cannot agree that Mansfield has shown that this pile constituted an unreasonable risk of harm and that Colwell should have expected that something so patently obvious would not be discovered. Similarly, if the alleged hazardous condition was the spoil area itself, this was an open and obvious condition visible from a nearby highway and also does not satisfy the four requirements set forth in Patterson, supra.

Nor can we agree that this condition on the land constituted a mantrap designed by Colwell to ensnare the unwary. “The doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury. [Cit.]” Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193, 198 (150 SE2d 563) (1966). Examples of a mantrap include a spring gun or a trap or “a dangerous condition hidden with sufficient cover to obscure it or to render it unobservable to one who approaches it.” Id. A defendant’s liability for an injury resulting from a mantrap or pitfall presupposes a lack of knowledge about the hidden or concealed hazard on the part of the licensee or trespasser. Francis v. Haygood Contracting, 199 Ga. App. 74, 75 (1) (404 SE2d 136) (1991); see Frank Mayes & Assoc. v. Massood, 238 Ga. App. 416, 419 (518 SE2d 903) (1999). Moreover,

[s]o long as it is not so close to the traveled way as to constitute a peril to those who may accidentally step aside from the traveled way, a party may excavate upon his land or have holes thereon and this right is not subject to abridgement by parties happening to go out of their way and receiving injuries. [Cits.]

Hawkins v. Brown, 228 Ga. App. 311, 313-314 (2) (491 SE2d 423) (1997). Here, the passive or static condition of a large pile of rock or dirt positioned in the middle of a private pathway well off the public road did not constitute wilful or wanton conduct, and no evidence suggested that Colwell acted in such a way as to oblige or induce anyone to proceed toward this mound. Id. at 314.

Wilson, deposed in prison, entered guilty pleas under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970) to driving under the influence of marijuana and involuntary manslaughter. Wilson pled guilty to underage possession of alcohol and misdemeanor possession of marijuana. Despite entering his Alford plea, Wilson testified that he did not know for certain that he had been driving the van when it plunged off the edge of the bluff.

Further, although this quarry was only about 20 miles from Mansfield’s home, Mansfield offered not a shred of evidence regarding the intervening activities or the whereabouts of Wilson and Shane during the several-hour block of time between the time they left James Mansfield’s home and when Wilson was discovered wandering alone along the lower road beneath the spoil area.

No accident reconstruction evidence or expert testimony was offered to prove the actual cause of the van’s precipitous plunge off the bluff. Mere speculation that Wilson probably drove the van too close to the edge of the hillside was not sufficient to show culpability on the part of Colwell, especially in light of the overwhelming and uncontroverted evidence of Wilson’s alcohol and marijuana consumption before the incident. See Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (2) (456 SE2d 93) (1995). The record does not contain an autopsy report or any probative evidence as to the official cause of Shane’s death. See Grantham v. Amin, 221 Ga. App. 458, 459 (471 SE2d 525) (1996) (absence of evidence as to proximate cause entitled defendant to summary judgment).

When an injury could have been avoided by the exercise of ordinary care for one’s own safety, recovery is generally foreclosed. Sims v. Willoughby, 179 Ga. App. 2, 4 (345 SE2d 626) (1986); Shuman v. Mashburn, 137 Ga. App. 231, 237 (3) (223 SE2d 268) (1976) (physical precedent only). In both Sims and Shuman, the grant of summary judgment was found appropriate because of overwhelming evidence that the plaintiffs could have avoided the risk of injury by exercising even slight care. Id. In this case, Shane could likely have avoided injury by choosing not to be a passenger in a vehicle being operated by an unlicensed driver who had recently consumed both beer and marijuana, who was proceeding into an unlit, unpaved area, and who apparently failed to take precautions to avoid driving or backing his vehicle off the edge of an elevated plateau. See Watson v. Marshall, 212 Ga. App. 206, 208 (2) (441 SE2d 427) (1994).

Decided March 9, 2000.

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, for appellants.

Hicks, Casey, Young & Barber, William T. Casey, Jr., Teri D. Alpert, for appellee.

Although the underlying facts of this case are unquestionably tragic, the evidence contained in the record before this court does not show that Colwell breached a duty of care to the decedent and that the breach proximately caused the injuries sustained. Davis v. Scott, 232 Ga. App. 493, 494 (502 SE2d 332) (1998). Under these circumstances, summary judgment was appropriate. Francis, supra at 74 (1).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Carlton Colwell owns the property and leases it to Colwell Construction Company.


text:
    A99A2346, A99A2347.
    CROWN DIAMOND COMPANY v. N. Y. DIAMOND CORPORATION (two cases).
    (530 SE2d 800)
   Barnes, Judge.

These appeals challenge the trial court’s dismissal of Crown Diamond Company’s (“Crown”) appeal of a judgment in favor of N. Y. Diamond Corporation (“N. Y. Diamond”). In Case No. A99A2346, Crown, appeals from the trial court’s order, filed December 18, 1998, dismissing Crown’s appeal of the judgment in favor of N. Y. Diamond and also authorizing the clerk to release a posted bond. Crown filed its notice of appeal from this order on December 23, 1998.

On January 28, 1999, the trial court issued another order also dismissing this same appeal, but this time directing that the bond would not be released pending disposition of Crown’s extraordinary motion for new trial. Crown filed a notice of appeal from this order on February 10, 1999, and upon docketing in this court, the appeal was assigned Case No. A99A2347.

Even though the notices of appeal in both cases are from the trial court’s orders dismissing the same appeal, they were forwarded to this court as two separate cases. Because both cases concern the dismissal of the same appeal and the parties have filed combined briefs and enumeration of error for both cases, we will consolidate them for disposition.

Crown contends the trial court erred by dismissing its appeal because the delay in filing a transcript of the April 16 hearing was neither unreasonable nor inexcusable. For the reasons stated below, we disagree.

The dismissed appeal concerns a judgment in favor of N. Y. Diamond that was entered on April 29, 1998. Crown filed its notice of appeal from that judgment on May 8, 1998. In addition to identifying the judgment appealed from and the jurisdictional basis for bringing the appeal to this court, the notice of appeal directed the clerk to omit nothing from the record on appeal and stated that a;“[t]ranscript of evidence and proceedings will be filed for inclusion in the record on appeal.” Crown, however, did nothing to arrange for the preparation of the transcript of a hearing that was held on April 16, 1998.

In August 1998, Crown’s attorney became concerned about the status of the record and instructed a paralegal to call the Fulton State Court appeals clerk to check on it. According to the paralegal, the appeals clerk told her they were still compiling the record. In September, the lawyer again asked his paralegal to contact the clerk’s office about the record on appeal, and she was informed that the clerk’s office had everything needed to prepare the record for transmittal to the Court of Appeals and that the delay resulted solely from a lack of staffing in the clerk’s office.

Crown’s counsel states that on November 30, 1998, he learned for the first time that the reason for the delay in transmitting the record to the Court of Appeals was his failure to order a transcript of the April 16, 1998 hearing. The next day, he “requested that the court reporter prepare and file a transcript from that hearing,” and he paid the costs of the transcript.

On December 10, 1998, N. Y. Diamond filed a motion to dismiss the appeal because of Crown’s inexcusable and unreasonable delay in filing the transcript. The transcript was finally filed that same day. After Crown responded to the motion, the trial court held a hearing. At the conclusion of the hearing, the court found the delay was caused by Crown’s unreasonable and inexcusable delay in filing the transcript of the proceedings and granted N. Y. Diamond’s motion to dismiss the appeal. A written order dismissing the appeal was filed December 18, 1998.

Case No. A99A2346

1. A trial court is authorized to dismiss an appeal for failure to file the transcript when the delay caused by the failure was unreasonable, the unreasonable delay was inexcusable, and it was caused by the party responsible for filing the transcript. OCGA § 5-6-48 (c); Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990). “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion.” (Citations and punctuation omitted.) Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991). Further, trial courts have very broad discretion when deciding whether to dismiss an appeal for delay. Kleber v. Cobb County, 212 Ga. App. 441, 442 (2) (442 SE2d 296) (1994).

2. Under our law, a party filing a notice of appeal must “state whether or not any transcript of evidence [or] proceedings is to be transmitted as a part of the record on appeal.” OCGA § 5-6-37. When a transcript is to become part of the record on appeal, the appellant must have the transcript prepared at its expense and have it filed to be part of the record on appeal within 30 days after the notice of appeal was filed. OCGA §§ 5-6-41 (c); 5-6-42. If the transcript cannot be filed within 30 days, the appellant must request an extension of time under the procedures stated in OCGA § 5-6-39 to file the transcript. OCGA § 5-6-42. An appellant, however, is responsible for preparing and filing only the transcript, not the record. Long v. City of Midway, 251 Ga. 364 (306 SE2d 639) (1983).

The clerk of court has the responsibility for preparing the record and, after the transcript is filed, transmitting the record on appeal, i.e., the record and transcript, to the appellate court. OCGA § 5-6-43 (a); Long, supra, 251 Ga. at 364. Appellants are not accountable for delays caused by clerks of court or court reporters after the transcript has been ordered properly (OCGA § 5-6-48 (f); Wagner v. Howell, 257 Ga. 801, 802 (363 SE2d 759) (1988)); appellants are held accountable only for delays that they cause. Baker, supra, 260 Ga. at 115.

While the failure of Crown’s counsel and the clerk’s office to differentiate between the record, the preparation and filing of the transcript of evidence and proceedings, and the record on appeal may have contributed to Crown’s failure to discover its failure to order the transcript, this confusion did not delay filing the transcript. Because we will hold Crown responsible only for the actual delay in forwarding the record caused by its failure to file the transcript, this confusion is not significant in this case.

According to the appeals clerk, the record could have been transmitted to this court as early as October 19, 1998, but for Crown’s failure to have the transcript prepared and filed by that date. Although nothing in the record on appeal shows when the record on appeal would have been forwarded to this court after the transcript was finally filed on December 10, 1998, our law requires that the record on appeal be forwarded to the appellate court within five days of filing the transcript. OCGA § 5-6-43 (a). Consequently, Crown’s failure to file the transcript actually delayed the forwarding of the record for several months. We do know that by not having the transcript on file on October 19, 1998, when the record was ready, Crown delayed the forwarding by over 50 days.

Crown did not explain whether for some reason it believed the transcript had been prepared and filed or whether Crown simply forgot that it had designated that a transcript of the evidence and proceedings would be included in the record on appeal. The record shows, however, that Crown’s counsel “simply forgot to order the transcript” because the hearing “had nothing to do with the subjects on appeal.”

On appeal, Crown argues that the hearing was insignificant and minor. Whether it was necessary to make the transcript of this hearing part of the record on appeal, however, was Crown’s decision. Nothing required Crown to make the transcript of this allegedly insignificant, minor hearing part of the record on appeal. Having elected to make the transcript part of the record on appeal, Crown was obligated to have the transcript prepared and filed or to file an amended notice of appeal changing its election. Crown did neither. It is not the clerk of court’s responsibility to go beyond the designation and determine whether a transcript is necessary. Boveland v. Young Women’s Christian Assn. &c., 227 Ga. App. 241, 242 (1) (489 SE2d 35) (1997). It is too late now to argue that because the transcript of the hearing was not necessary, Crown’s failure to order it in the first instance should be excused.

3. The trial court’s initial determination is . whether the delay was unreasonable. Central of Ga. R. Co. v. DEC Assoc., 231 Ga. App. 787, 789 (501 SE2d 6) (1998). This question refers to the length and effect of the delay (Sellers v. Nodvin, 262 Ga. 205, 206 (1) (b) (415 SE2d 908) (1992)) and is a separate issue from whether the delay was inexcusable. Cook v. McNamee, 223 Ga. App. 460, 461 (477 SE2d 884) (1996). A delay is unreasonable if it directly delays placement of the case on the earliest possible calendar in this court or delays the docketing of the appeal and the hearing of the case in this court. Kendall v. Burke, 237 Ga. App. 742, 743 (516 SE2d 791) (1999). The record in this case shows that Crown’s failure to order the transcript in a timely manner did both. Thus, the trial court did not abuse its discretion by finding the delay unreasonable.

4. The next issue is whether the delay was inexcusable. “The ordinary signification applied to the word ‘inexcusable’ is that the conduct by act or omission was ‘not excusable; incapable of being justified.’ Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989).” Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 500 (2) (458 SE2d 377) (1995). Because Crown’s only excuse for failing to order the transcript was that its counsel forgot, the delay was inexcusable. Even though counsel may have forgotten that he did not order the transcript, he also forgot to check to see if the transcript could be filed within 30 days of filing the notice of appeal. Counsel also forgot to request an extension for filing the transcript and never once checked on the status of the transcript with the court reporter. Checking on the status of the record with the appeals clerk does not rectify this lack of diligence. The trial court did not abuse its discretion by finding the delay inexcusable. See Burton v. Hamilton, 204 Ga. App. 18, 19 (418 SE2d 398) (1992).

Decided March 9, 2000.

McGee & Oxford, Donald L. Cook, Mozley, Finlayson & hoggins, Wayne D. Taylor, Lawrence B. Domenico, for appellant.

Cornelison & Van Gelderen, Leon A. Van Gelderen, for appellee.

This is not a case in which the trial court based its findings merely upon the failure of the appellant to request an extension of time in which to file the transcript. See Dalton v. Vo, 224 Ga. App. 382 (480 SE2d 377) (1997). Instead, it is one in which Crown did nothing to cause the transcript to be prepared. See Durden v. Griffin, 270 Ga. 293, 294 (509 SE2d 54) (1998).

5. Therefore, under the totality of the circumstances, the trial court did not abuse its discretion by dismissing the appeal in Case No. A99A2346 based on its conclusion that Crown caused a substantial delay in the ultimate docketing of this appeal so as to render it stale. Jackson, supra, 217 Ga. App. at 504.

Case No. A99A2347

6. In view of our disposition of the issues in Case No. A99A2346, Case No. A99A2347, which concerns the same dismissal of the same underlying appeal, is moot.

Judgment affirmed in Case No. A99A2346. Appeal dismissed in Case No. A99A2347.

Blackburn, P. J., and Eldridge, J., concur.

       No issue concerning the bond is asserted in either appeal.

       Review of the hearing transcript shows the hearing concerned the trial court’s final order in the case, including amounts that should be awarded.


author: Pope, Presiding Judge.

text:
    A99A2359.
    HENDRIX v. THE STATE.
    (530 SE2d 804)
   Pope, Presiding Judge.

Johnny Hendrix challenges his conviction of aggravated battery on the grounds that the State failed to prove venue and that the trial court improperly limited cross-examination. Because we find that venue was established under OCGA § 17-2-2 and that the court did not abuse its discretion regarding the scope of cross-examination, we affirm.

Construed in favor of the verdict, the facts show that Hendrix picked up his ex-girlfriend, Mamie Moore, from her cousin’s home in Chatham County. He told her that her son had been shot, and he offered to drive her to see him. Moore testified that the two “started like we was going to Metter and then we stopped on Derenne and White Bluff to the service station” and got gas. Then “we started going down 16,” and after some time he grabbed her hair and “started beating her” while he was driving. At one point he pulled over “to the side of 16,” but then continued. Then, “he pulled off on Ash Branch Road and . . . and started beating me more. . . .” Hendrix then pulled her back into the van, and as they were coming “back into town,” “he kept on beating me in my face. . . .” He then took her to his home on Dean Forest Road, but she did not testify to any beating there. Testimony and photographs introduced at trial revealed that Moore’s eye was severely bruised and swollen as a result of the incident.

1. In general, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2. Our Supreme Court has held that “venue must be established beyond a reasonable doubt.” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Although slight evidence is sometimes sufficient to prove venue, that rule is applied only “when the evidence is not conflicting and when no challenge to venue is raised at trial.” Id. Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998). Here Hendrix moved for a directed verdict, arguing that the only evidence showed that the crime occurred on Ash Branch Road, which he claims is located in Bryan County.

The record in this case is woefully short of evidence showing in what county the crime occurred. First, although the parties appear to agree that the Ash Branch Road exit of Highway 16 is located in Bryan County, there is no evidence in the record of that fact. Second, Moore’s testimony does not indicate whether any of the beating occurred in Chatham County. The record does not reflect whether the gas station is in Chatham County, and we cannot take judicial notice that a particular street or address is located within a particular county. Mega v. State, 220 Ga. App. 481, 482 (1) (469 SE2d 771) (1996), overruled on other grounds, Joiner v. State, 231 Ga. App. 61, 63 (497 SE2d 642) (1998).

The only evidence is that the drive began in Chatham County and continued on State Highway 16 and that the beating occurred somewhere along the route. This Court may take judicial notice of the statutorily mandated official state highway map. Jordan v. State, 212 Ga. 337, 340 (1) (92 SE2d 528) (1956) (former Ga. Code Ann. § 95-1608; see OCGA §§ 32-4-1; 32-4-2). The official state highway map shows that Highway 16 originates in Savannah in Chatham County, then proceeds through Effingham, Bryan, and Bulloch Counties, and beyond. Moore testified at one point that the whole episode lasted “about three hours, or maybe longer.” Thus, the two could have driven through three or more counties on Highway 16 in that time. Indeed, Hendrix testified that he turned his van around at the exit for State Highway 119, which is located — according to the official state highway map — near the border of Bryan and Bulloch Counties. And some evidence was presented that Ash Branch Road is even farther to the west.

Application of two subsections of OCGA § 17-2-2 resolves this appeal. OCGA § 17-2-2 (h) provides: “If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” Further, if a crime is committed in a car traveling within the state,

and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.

OCGA § 17-2-2 (e).

This crime occurred in a car traveling across several counties and continued as the car headed “back into town,” i.e., Savannah and Chatham County. It cannot precisely be determined in which county or counties the beating occurred. But, the evidence shows beyond a reasonable doubt that the crime might have been committed in Chat-ham County. Venue was appropriate in that county under OCGA § 17-2-2 (e) and (h). See, e.g., Moss v. State, 160 Ga. App. 42 (1) (285 SE2d 776) (1981).

Because we have concluded that there was sufficient evidence of venue under OCGA § 17-2-2, Hendrix’s enumeration that his trial counsel should have moved for a directed verdict on this point at the end of the State’s case is moot.

2. Construed in favor of the verdict, the evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The trial court did not err in limiting Hendrix’s cross-examination of Moore.

Hendrix’s attorney questioned Moore about her rocky relationship with Hendrix. When he asked her if she had ever hit Hendrix, the State objected to the relevance of the question, and the court sustained the objection.

Decided March 9, 2000.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

A trial court has the discretion to limit the scope of cross-examination. Givens v. State, 264 Ga. 522, 523 (2) (448 SE2d 687) (1994). Absent abuse, the court’s discretion will not be disturbed on appeal. Sweeney v. State, 233 Ga. App. 862, 866 (6) (506 SE2d 150) (1998).

Hendrix’s defense was that he did not hit Moore, not that he was justified in doing so. He testified that he did not remember striking the victim, that he did not injure her, and that he did not see any bruises on her after the trip. Because he was not claiming justification, specific acts of violence against him by the victim are not relevant. Brown v. State, 270 Ga. 601, 602 (2) (512 SE2d 260) (1999); Johnson v. State, 270 Ga. 234, 235-236 (3) (507 SE2d 737) (1998).

. We find no abuse of discretion.

Judgment affirmed.

Smith and Miller, JJ., concur.


text:
    A99A2474.
    A99A2475.
    YOUNG v. THE STATE. JACKSON v. THE STATE.
    (530 SE2d 758)
   Pope, Presiding Judge.

Co-defendants Charles E. Young and Lizzie Outlaw Jackson were convicted by a jury of possession of cocaine and possession of a firearm during the commission of a felony. On appeal, both defendants enumerate as error the denial of their motions for directed verdict and challenge the sufficiency of the evidence to support their convictions. Additionally, Young argues that the trial court erred in failing to give his requested charge on equal access. For the reasons that follow, we affirm both convictions.

1. Defendants enumerate as error the denial of their motions for directed verdict and, in separate enumerations of error, also challenge the sufficiency of the evidence to support their convictions.

On appeal the evidence is viewed in the light most favorable to support the verdict, and defendants no longer enjoy a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a challenge to the sufficiency of the evidence, whether enumerated as error on appeal or made in the form of a motion for directed verdict of acquittal at trial, is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. See, e.g., Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997); Noble v. State, 225 Ga. App. 470, 471-472 (484 SE2d 78) (1997). Viewed in this light, the evidence shows the following: At about 8:00 p.m. on November 4, 1996, Officer Scott Ryals of the Henry County Police Department observed a car with an expired tag traveling southbound on Interstate 75. Ryals stopped the vehicle and asked the driver, defendant Young, to exit the vehicle while Ryals checked his license and proof of insurance. Ryals said Young’s eyes appeared to be bloodshot, but he did not smell alcohol or notice anything else that might have indicated that Young was under the influence of alcohol. After he checked his license, Ryals told Young he was free to go but commented that his eyes were bloodshot and asked Young if he had anything in the car, such as alcohol, prescription medication or narcotics, that might have caused his eyes to be red. Young responded in the negative. Ryals then asked if he could search the vehicle, and Young gave his consent to search. Ryals testified he had walked about halfway to the passenger side of the vehicle when Young advised him that there was a handgun under the front seat. Ryals asked the passenger, defendant Jackson, to exit the vehicle and then retrieved the handgun from under the passenger side of the front seat. Ryals testified that he also found a quantity of what was subsequently identified as 6.8 grams of cocaine “[r]ight with the gun.” Ryals testified that the gun was “underneath the front seat, more on the passenger’s side, but kind of pushed toward the middle of the seat,” and that neither the gun nor the cocaine was visible from outside the vehicle. Both defendants were searched and $629 in U. S. currency was found on Young, but no drug paraphernalia were found on either defendant.

Both defendants testified at trial and denied knowing that the cocaine was under the seat. Young testified that he was a long-haul truck driver and that he and Jackson, his fiancée, had been on the road since late September. Defendants testified that they had left the car in which the contraband was found at Jackson’s mother’s house in Alamo, Georgia, and that anyone in Jackson’s family was allowed to drive the car. On the day of the arrest, defendants had driven from Illinois to Jackson’s mother’s house in Alamo. Young left Jackson in Alamo and proceeded to drop the truck off at the terminal in Hazelhurst, where he also received his pay of $738.48. Jackson drove the car to Hazelhurst, picked up Young, and then drove three and one-half hours to Atlanta to buy some makeup, pick up mail, and visit family. Defendants were traveling back to south Georgia when they were stopped. Young testified that they did not stop in Atlanta when they had driven around it earlier in the day because 18-wheel trucks are allowed inside the perimeter only under specified circumstances. According to Young, the gun was left in the,car the entire time it was at Jackson’s mother’s house in Alamo; according to Jackson, Young did not know it, but she had taken the gun out of the car while they were on the road and left it inside her mother’s house. Jackson testified she stuck the gun, which she said was inside a bag with some important papers, under the car seat when she picked up the car on November 4.

Defendants argue that the state’s evidence shows nothing more than their spatial proximity to the contraband and that the state failed to establish their constructive possession of the cocaine. “A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” (Citation and punctuation omitted.) Jackson v. State, 216 Ga. App. 842, 844 (1) (456 SE2d 229) (1995) (physical precedent only). It is true, as defendants argue, that

[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. And, where as in this case, the conviction is based on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether this burden has been met is a question for the jury, and its determination will not be disturbed unless the verdict is insupportable as a matter of law.

(Citations and punctuation omitted.) Noble v. State, 225 Ga. App. at 471.

Defendants argue that others had access to their car, that the state’s evidence showed the cocaine was behind the gun, and that the gun was placed in the car after the cocaine. But the officer testified that he found the cocaine "right with the gun,” and that he was absolutely certain the gun and cocaine were together. And there was no affirmative evidence that defendants’ car had been used in their absence, only that they gave permission for others to use the car.

This case is similar to both Noble v. State, 225 Ga. App. at 471, and Jackson v. State, 216 Ga. App. at 843 (1), in which we found the evidence established defendants’ constructive possession of the contraband. In Noble the contraband was found inside the pillowcase of a pillow which was lying on top of a gun that defendant admitted he owned; this evidence, we held, provided the additional link between defendant and the contraband. Noble, 225 Ga. App. at 471-472. In Jackson, the evidence suggested defendant was intoxicated, and the contraband was found next to an empty beer container on the floorboard under his seat. In this case, the officer testified that he found the cocaine “right with the gun,” which defendants admitted they owned. This provided an additional link or connection between the cocaine and the defendants. And although neither the gun nor the contraband was in plain view, the defendants’ testimony showed the gun was easily accessible, and the officer’s testimony established that the gun and contraband were within defendants’ dominion and control. See Jackson, 216 Ga. App. at 844 (1); compare Mitchell v. State, 268 Ga. 592 (492 SE2d 204) (1997) (evidence that contraband was found under front passenger floor mat was insufficient to show constructive possession by passenger when the car was owned and operated by driver and his girlfriend); Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994) (in which only evidence linking defendant to the contraband was inadmissible hearsay).

Decided March 9, 2000

Thomas E. Stewart, for appellants.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

2. Defendant Young enumerates as error the refusal of the trial court to give his written requested charge on equal access. We find no error. The transcript plainly shows that Young withdrew this request after the trial judge indicated he would not charge on the presumption of possession arising from ownership or control of the vehicle. And we reject Young’s contention that failure to give the charge rises to the level of constitutional harm and that we should therefore address this enumeration even though he withdrew his request to charge at trial. Moreover, “when[, as here,] the trial judge elects not to charge the jury on the presumption of possession, an equal access instruction is not required.” (Citations and punctuation omitted.) Thompson v. State, 234 Ga. App. 74, 77 (3) (506 SE2d 201) (1998).

Judgments affirmed.

Smith and Miller, JJ., concur.


text:
    A00A0592.
    STARLING v. THE STATE.
    (530 SE2d 757)
   Johnson, Chief Judge.

William Starling appeals his convictions for driving under the influence and weaving over the roadway. At the conclusion of the state’s case, Starling moved for a directed verdict, claiming the state failed to prove the issue of venue beyond a reasonable doubt. The probate court denied his motion for a directed verdict, and Starling appealed to the Superior Court of Monroe County, which found no error of law. Because the state failed to prove that venue was proper in Monroe County, we must reverse the convictions.

It is well established that venue is an essential element of a criminal charge and must be proved by the state beyond a reasonable doubt. Contrary to the state’s argument, Starling clearly challenged venue when he pled not guilty to all charges and argued the lack of venue during his motion for a directed verdict.

Even viewed in a light most favorable to support the verdict, the record does not contain evidence of venue. The officer testified that he was employed by the Monroe County Sheriff’s Office. However, at the time he made the stop he was “coming in to work.” Since he was not yet on duty, no inference could be made that the officer was acting within the territorial jurisdiction of his office. The record is devoid of any evidence showing that the officer’s route to work fell strictly within Monroe County. The officer further testified that he was “on Georgia 18, approximately a mile and a half from [Forsyth] or from Georgia 401, which is 1-75.” However, testimony relating to these highways, which failed to specify the county in which the highways are located, is not sufficient to establish venue.

We thoroughly reviewed every line of the transcript, and the videotape of the officer’s stop to look for any evidence showing where the events occurred. However, the state failed to introduce any evidence that venue was proper in Monroe County. We are at a loss to explain this oversight since proving venue is a simple exercise that requires only one question and should be one of the first questions asked in every case. Although the uniform traffic citations were included as part of the record, they are not evidence of venue and cannot form the factual predicate necessary to establish venue. As such, the state failed to carry its burden on the essential element of venue, and the evidence was insufficient to prove venue beyond a reasonable doubt. Accordingly, we must reverse. Starling’s enumerations of error regarding the sufficiency of the evidence are therefore moot.

Decided March 9, 2000.

Chris Jensen, for appellant.

Richard G. Milam, District Attorney, James L. Moss, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

McMurray, P. J., and Phipps, J., concur.

        Graves v. State, 269 Ga. 772, 773-774 (1) (504 SE2d 679) (1998).

       Id. at 774; see also Garrett v. State, 236 Ga. App. 385 (512 SE2d 315) (1999).

       Compare Frisbey v. State, 236 Ga. App. 883, 885 (2) (514 SE2d 453) (1999); Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998).

        In the Interest of N. T. S., 242 Ga. App. 109, 111 (2) (528 SE2d 876) (2000); Bradley v. State, 238 Ga. App. 490 (519 SE2d 261) (1999).

        Graves, supra; Garrett, supra.


author: Eldridge, Judge.

text:
    A00A0850.
    SANCHEZ v. THE STATE.
    (530 SE2d 775)
   Eldridge, Judge.

A Whitfield County grand jury indicted Ener Sanchez for: Count 1, trafficking in methamphetamine — 28 grams or more; Count 2, trafficking in cocaine — 28 grams or more; Count 3, possession of a firearm during the commission of a crime; and Count 4, giving a false name. The case was tried before a jury, and Sanchez was found not guilty on Count 3 (possession of a firearm during the commission of a crime), but guilty on Count 4 (giving a false name). The jury hung on Counts 1 and 2, and the trial court declared a mistrial. Thereafter, the State reindicted Sanchez in a two-count indictment charging him with trafficking in methamphetamine — 28 grams or more, and trafficking in cocaine — 400 grams or more. A second jury trial resulted in Sanchez’s conviction on both counts. He appeals, raising issues with regard to his plea in abatement and plea in bar which were heard and denied prior to the second trial. Finding no error in the trial court’s rulings, we affirm Sanchez’s convictions.

1. Sanchez contends that, following the jury’s deadlock and the trial court’s declaration of mistrial, the State should not have been allowed to reindict him for trafficking in “400 grams or more” of cocaine, as opposed to the “28 grams or more” for which he was originally indicted. Sanchez argues that, by reindicting him for the larger amount, he faced a significantly increased punishment which is “presumed to be prosecutorial vindictiveness,” as proscribed by the United States Supreme Count in Blackledge v. Perry, 417 U. S. 21, 24 (I) (94 SC 2098, 40 LE2d 628) (1974).

This issue has been decided adversely to Sanchez by the Supreme Court of Georgia’s decision in Griffin v. State, 266 Ga. 115, 119-120 (464 SE2d 371) (1995). In Griffin, the Supreme Court noted that the “presumption” of prosecutorial vindictiveness discussed in Blackledge focused on a prosecutor’s motivation to discourage other defendants from exercising their right to appeal, a constitutionally protected right. However,

[t]he reasoning of Blackledge is inapplicable in the context of jury deadlock. Here, as the State points out, what provided the State an opportunity to “up the ante” was not a successful appeal of a conviction, but rather a mistrial. The appeal of the plea of former jeopardy, had it been successful, would have created no opportunity for enhancement of charges or penalty. A mistrial resulting from an inability of a jury to reach a verdict, especially when entered on the trial court’s own motion, is not subject to chilling as is the exercise of the right to appeal. Therefore, no presumption of prosecutorial vindictiveness arises.

(Citations omitted.) Griffin v. State, supra at 120. The trial court did not err in denying Sanchez’s plea in abatement.

2. Next, Sanchez argues that the State was well aware of the increased amount of cocaine prior to the first trial and could have re-indicted at that time. That they did not do so until after mistrial shows (according to Sanchez) that the State was motivated by actual prosecutorial vindictiveness against him for exercising his right to trial.

We will be bound by the trial court’s findings of fact unless they are clearly erroneous. See, e.g., Brown v. State, 250 Ga. 66, 73 (4) (295 SE2d 727) (1982). The evidence on this issue shows that when Sanchez was first indicted, the Georgia Bureau of Investigation Crime Laboratory (“Crime Lab”) had performed an analysis on the methamphetamine seized from Sanchez but had not analyzed the cocaine. The State was unaware of the specific quantity of cocaine recovered from Sanchez. Accordingly, the State chose to indict Sanchez “conservatively” on the cocaine count. On March 18, 1999, ten days prior to trial, the State received a complete Crime Lab report containing the cocaine analysis, as well as the analysis of the methamphetamine. Sanchez’s trial was set for March 30, 1999, and the next Whitfield County grand jury did not meet until March 31, 1999. The State “chose not to reindict it because it would have delayed the proceedings even further.” Following the mistrial, however, the State had the opportunity to reindict Sanchez using the amount of cocaine reflected in the Crime Lab report. Based on this evidence, the trial court specifically found that “[t]he State’s reindictment of the Defendant in Case 40306-T was not the result of any vindictive or improper motive.” Because such conclusion is supported by the record, we find no error.

3. Sanchez next contends that the doctrine of “collateral estoppel” should have prevented the State from retrying him on the trafficking offenses, since the State presented evidence of the trafficking offenses during his trial on the possession of a firearm count and he was acquitted thereon. We do not agree.

The doctrine of collateral estoppel, which is embraced within the constitutional guarantee against double jeopardy, “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (90 SC 1189, 25 LE2d 469) (1970). The record of the prior proceeding must “affirmatively demonstrate [ ] that an issue involved in the second trial was definitely determined in the former trial. . . . [Cit.]” United States v. Haines, 485 F2d 564, 565 (7th Cir. 1973), cited in Preston v. State, 257 Ga. 42, 45 (4) (354 SE2d 135) (1987). The possibility that an issue may have been determined in the former trial does not prevent the relitigation of that issue. United States v. Haines, supra at 565.

In that regard, a person possesses a firearm during the commission of a felony when he has: (a) on or within arm’s reach of his person; (b) a firearm; (c) during the commission of a felony crime. OCGA § 16-11-106 (b). Clearly, then, a defendant may be acquitted of possession of a firearm during the commission of a felony crime if the jury determines that the State failed to prove beyond a reasonable doubt either (a) that the weapon involved was “on or within arm’s reach” of the defendant, or (b) that the weapon involved was a “firearm” within the meaning of OCGA § 16-11-106 (a). Whether the defendant was committing a felony crime need not even be reached if the State has failed to prove the defendant had on or within arm’s reach of his person a firearm. Thus, the doctrine of collateral estoppel would not, as a matter of law, preclude retrial on the substantive crime when a defendant has been acquitted of possession of a firearm during the commission of that crime.

Moreover, as a matter of fr.ct, the jury in the prior trial of Sanchez’s case could not decide about Sanchez’s commission of the trafficking offenses. That is why a mistrial was declared with regard to those counts. Accordingly, Sanchez’s acquittal on the possession of a firearm count does not affirmatively demonstrate that the jury “definitely determined [the issue of Sanchez’s commission of the trafficking offenses] in the former trial.” United States v. Haines, supra at 565. The denial of Sanchez’s plea in bar was not error.

4. We find the evidence sufficient to withstand a challenge thereto. The record shows that at 2:00 a.m. on July 24, 1998, officers from the Dalton Police Department executed a search warrant at Sanchez’s residence. Sanchez was lying on his bed. During the search, an officer popped up the dropped ceiling tiles over Sanchez’s bed. Two wrapped packages were recovered from the ceiling. The packages were opened in order to conduct field tests on the contents. During this process, Sanchez stated “Don’t snort any of that. It’s good shit. . . . You guys don’t know anything about drugs, you’re cops.” One package contained 174.6 grams of methamphetamine, and the other package contained 988 grams of cocaine with a purity of 64 percent. This evidence was sufficient for a rational trier of fact to have found Sanchez guilty beyond a reasonable doubt of the trafficking offenses for which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 9, 2000.

Jerry W. Moncus, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The validity of the search is not contested herein.


author: Blackburn, Presiding Judge.

text:
    A99A1829.
    PINE TREE PUBLISHING, INC. v. COMMUNITY HOLDINGS, INC.
    (531 SE2d 137)
   Blackburn, Presiding Judge.

In this action for copyright infringement, Pine Tree Publishing, Inc. appeals the trial court’s order opening a default judgment against Community Holdings, Inc. pursuant to OCGA § 9-11-55 (b). Pine Tree contends that, because a final judgment had been entered, the trial court had no authority to open default. For the reasons set forth below, we agree.

The record shows that Pine Tree filed a complaint against Community Holdings for copyright infringement on September 21, 1998. Community Holdings was served on October 12, 1998, but failed to answer. Pine Tree then moved for a finding of default, and a final judgment was entered against Community Holdings on December 4, 1998. On December 10, 1998, Community Holdings, citing OCGA § 9-11-55 (b), filed a motion to open the default judgment or, in the alternative, set aside the judgment. After a hearing, the trial court granted Community Holdings’ motion to open default pursuant to OCGA § 9-11-55 (b), finding that Pine Tree would not be prejudiced and that the infringement case was a proper one to hear on its merits.

OCGA § 9-11-55 (b) provides:

At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.

(Emphasis supplied.) See also Allen v. Nash, 195 Ga. App. 597 (1) (394 SE2d 395) (1990).

In situations where a final judgment has been entered, default cannot be opened unless and until the final judgment has been set aside pursuant to OCGA § 9-11-60 (d). A motion to set aside may be brought to set aside a judgment based upon:

(1) [l]ack of jurisdiction over the person or the subject matter; (2) [flraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) [a] nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.

OCGA § 9-11-60 (d).

In this case, final judgment had been entered against Community Holdings. As such, the trial court had no authority to open the default judgment pursuant to OCGA § 9-11-55 (b) without first setting aside the final judgment pursuant to OCGA § 9-11-60 (d), so that the case, in its entirety, could be heard on its merits. See Archer v. Monroe, 165 Ga. App. 724 (2) (302 SE2d 583) (1983). The transcript reveals, however, that the trial court opened default without considering whether the final judgment that had already been entered could appropriately be set aside pursuant to OCGA § 9-11-60 (d). The trial court stated: “The court will grant defendant Community Holdings, Inc.’s motion to open the default judgment under the provisions of the statute authorizing the opening of default judgment.”

Because a final judgment had been entered in this case, the trial court initially should have considered Pine Tree’s motion to set aside such judgment, applying the stringent analysis of OCGA § 9-11-60 (d). Because this analysis has not been made, we must vacate the court’s order which inappropriately opened default without first setting aside the final judgment and remand this case so the trial court may make such a determination in accordance with OCGA § 9-11-60 (d).

Decided March 10, 2000.

Warren R. Power, for appellant.

Smith, Welch & Brittain, Katharyne C. Johnson, for appellee.

Judgment vacated and case remanded.

Eldridge and Barnes, JJ, concur.