text:
    A97A1605, A97A1606.
    LEWIS v. THE STATE (two cases).
    (494 SE2d 678)
   Birdsong, Presiding Judge.

In 1994 Jeremy Patrick Lewis was charged in Cherokee County Superior Court in two indictments with several violations of the Georgia Controlled Substances Act (GCSA), possession of a firearm by a convicted felon, and for being a recidivist. He pled guilty. The denials of his motions to withdraw guilty pleas were appealed to this Court in 1994, but because no orders denying the motions were filed, the case was remanded for completion of the record and for possible appointment of new counsel. After our March 1995 remand, the trial court did not appoint new counsel until December 1995. On April 12, 1996, the trial court finally filed orders in an effort to comply with our March 1995 dictate to complete the record. Counsel then waited until September 1996 to file “amendments” to the motions to withdraw the guilty pleas. After a hearing the trial court ruled in January 1997. Those rulings are the subject of these appeals.

These are the underlying facts:

In 1994 Jeremy Patrick Lewis was in jail subject to Indictment 146 charging him with possession of cocaine and marijuana with intent to distribute and of being a recidivist. In May 1994 he was indicted in Indictment 206 alleging that while he was in jail, he thrice did “Attempt to Violate [the GCSA] (OCGA § 16-13-33)” by attempting to possess lysergic acid and marijuana; and that he was an Habitual Violator so sentenced in 1988 in Fulton and DeKalb Counties, and had also been convicted in 1992 in Gwinnett County for two counts of violating the GCSA and one count of possession of a firearm by a convicted felon.

Appellant was called to trial on Indictment 146 after being indicted in Indictment 206 for trying to get drugs while in jail. The State announced its intent to present the charges in Indictment 206 as similar transactions. Appellant then entered a plea of guilty to all counts.

Appellant’s timely filed motions to withdraw his pleas and for reconsideration were denied in June 1994. Appellant filed a timely appeal. He contended he had not been advised of the effect of his guilty pleas to the recidivist counts. His attorney sought to withdraw because appellant was thus claiming ineffective assistance. As stated above, by order of March 1, 1995 we remanded the case “for completion of the proceedings and record below” because there were no written orders denying the motions to withdraw pleas.

Our remittitur was made the judgment of the trial court in March 1995. On April 9, 1995 appellant wrote the judge saying he had had ineffective assistance and had to have another attorney appointed. On April 18, appellant wrote the court clerk seeking a hearing on effectiveness of counsel. On April 27, 1995, trial counsel withdrew, but the trial court did not appoint new counsel until December 1995.

On April 12, 1996, the trial court filed orders in an effort to comply with our March 1995 remand. These two orders addressed the 1994 motions to withdraw pleas on grounds that counsel did not advise him there was a 30-years-to-serve mandatory sentence for recidivists. Without elaboration, the court held there was no basis for allowing a plea withdrawal. In December 1995, the trial court appointed new counsel. After the March 1996 entry of orders denying appellant’s original motion to withdraw guilty pleas, new counsel in September 1996 filed “amendments” to the motions to withdraw pleas, raising new issues. After a hearing in October 1996, the trial court held that appellant had not received inadequate assistance of counsel and that it had no jurisdiction to hear the 1996 motion to withdraw pleas.

Appellant cites numerous errors on appeal as this 1997 ruling. For the reasons below, we will not address most of those enumerations. Held:

1. The superior court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered. State v. Johnson, 222 Ga. App. 156 (473 SE2d 593); Stuckey v. State, 204 Ga. App. 793 (420 SE2d 655); Stargell v. State, 204 Ga. App. 45 (418 SE2d 372); Harden v. State, 177 Ga. App. 531 (339 SE2d 793). In Jarrett v. State, 217 Ga. App. 627, 628 (458 SE2d 414) we held that even a void sentence is subject to the same jurisdictional restraints. As in Jarrett, we find no cases authorizing the trial court to allow the withdrawal of a plea after the expiration of the term. It is well established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings. State v. Johnson, supra.

While the case was on appeal, supersedeas attached, and we remanded this case in March 1995 so the trial court could complete the record by entering the orders denying appellant’s 1994 motion to withdraw his guilty pleas, and so it could appoint new counsel. The March 1995 remand was not an open-ended invitation to the trial court to enter those orders at its leisure and to entertain further motions, and its jurisdiction did not allow such further actions. Its task was simply to supply the missing orders by which it had denied appellant’s 1994 motions to withdraw pleas and to reconsider. However, the trial court did not issue orders denying appellant’s 1994 motions to withdraw pleas until April 1996. When jurisdiction of the case was returned to the trial court, it was obliged to act promptly on the appellate directive in order to satisfy appellant’s due process right, but the dilatoriness in processing this appellant’s due process rights may have worked to appellant’s advantage, so all parties share in the responsibility for the delay.

The trial court may have appeared to have continued jurisdiction of the case because of its statement in its most recent orders that “the defendant’s original motion to withdraw his plea [was not] filed until September 1996.” In fact, however, appellant filed his “original motion” to withdraw his pleas in 1994 and it was ruled on in 1994. The 1996 “amended” motions seeking to withdraw pleas were long out of that court’s jurisdiction to allow (or deny) withdrawal of guilty pleas under Stuckey, supra. The rule stated in Harden, Stargell, Jarrett, and Stuckey, supra, — that the trial court’s jurisdiction to “entertain” a motion to withdraw a guilty plea ends after the term of court in which the conviction was rendered — applies equally to the trial court’s re-acquisition of jurisdiction of the conviction as in this case. After re-acquiring jurisdiction in March 1995 the trial court had only until the end of that term to complete its rulings by issuing orders denying appellant’s 1994 motions to withdraw. The term ended the day before the second Monday in May, when the next term began in the Blue Ridge Circuit which includes Cherokee County. OCGA § 15-6-3 (6) (A). After the beginning of the next term, May 2, the trial court had no further jurisdiction to issue orders denying appellant’s 1994 motions to withdraw so that a proper appeal could be had.

The April 1996 order denying appellant’s 1994 motions to withdraw pleas was therefore without jurisdiction.

2. The superior court’s duty in the first instance, in 1994 when these pleas were entered, was to create a record and to issue orders showing that the guilty pleas were freely and voluntarily made and that a factual basis existed for the guilty pleas. Uniform Superior Court Rule 33. See State v. Evans, 265 Ga. 332 (454 SE2d 468); and see USCR 33.9, which requires the trial court to “make [ ] such inquiry on the record as may satisfy him that there is a factual basis for the plea.” Evans, supra at 334; see also Woody v. State, 229 Ga. App. 823 (494 SE2d 685). As to appellant’s guilty pleas to Indictment 206, the order did not satisfy the requirement in Evans that a factual basis for the pleas be shown. “Attempts” charged under OCGA § 16-13-33 must be sufficient in fact under OCGA § 16-13-33 to amount to a consummated crime, and mere preparatory acts which do not proximately lead to its consummation do not constitute an attempt to commit the crime under such cases as Smith v. State, 156 Ga. App. 695, 696 (275 SE2d 689) and Guzman v. State, 206 Ga. App. 170, 171 (424 SE2d 849).

3. The trial court did not have jurisdiction to entertain a motion for new trial based on ineffectiveness of counsel, because the issue was not raised at the “earliest practicable” opportunity. The failure to raise and pursue the issue of ineffectiveness of counsel in the trial court is a procedural bar to making it in this Court. Sartin v. State, 223 Ga. App. 759 (479 SE2d 354). On March 9, 1995, before our remittitur was made the judgment of the court below, appellant sent a letter to the trial judge saying he had learned his trial counsel would serve as appellate counsel and that he would have to have another attorney appointed for appeal “because there is and will be a conflict between us . . . because my appeal is based on inadequate and ineffective counsel.” Appellant did not, however, file any pleading raising the issue of ineffective assistance of counsel nor did he ask for a hearing until nearly a year later, in April 1996. It does not appear from the record that appellant pursued his first mention of such a claim after his letter to the judge in March 1995 when he mentioned the claim in a letter written to the judge in connection with getting another attorney appointed.

Decided September 24, 1997

Reconsideration denied October 28, 1997

Gregory A. Hicks, for appellant.

Jeremy R Lewis, pro se.

The purpose of requiring this issue to be raised at the earliest practicable opportunity is to facilitate the orderly satisfaction of due process rights and to facilitate judicial economy. This case was already unreasonably burdened with repeated procedural problems despite appellant’s more than passing familiarity with criminal procedure, as the trial court found; to allow this issue to be raised in this Court years after the record in the first case has been destroyed would be unreasonably burdensome to all courts and all defendants. As the issue of ineffectiveness of counsel was not timely raised and resolved, the trial court could not rule on it. Sartin, supra.

4. Even assuming that the trial court’s April 1996 orders denying appellant’s 1994 motions to withdraw pleas were not void for lack of jurisdiction as held in Division 1, appellant did nothing to perfect a right to appeal from the trial court’s orders of April 1996. Appellant was not relieved of the necessity to appeal these April 1996 orders denying his 1994 motions to withdraw pleas. No document of record indicates that any procedural anomaly exists which would allow appellant not to appeal the April 1996 orders within 30 days. Accordingly, he may not now appeal those orders, even if they had been made within the jurisdiction of the court.

The trial court’s 1997 orders, which are the subject of this appeal are void as the court was without jurisdiction to hear a claim of ineffectiveness of counsel, and are therefore vacated. According to the holdings above, the trial court was without jurisdiction to hear anything after May 1, 1995 when the term of the remittitur ended, no motion raising ineffectiveness of counsel having been filed at the “earliest practicable” opportunity within the time when any court had jurisdiction.

Judgment vacated.

Ruffin and Eldridge, JJ., concur.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A97A1840.
    BAILEY v. JOYNER.
    (495 SE2d 45)
   Judge Harold R. Banke.

Marcia B. Joyner sued third-party defendant Grover C. Bailey, alleging negligence. In his sole enumeration of error, Bailey appeals the trial court’s denial of his motion to dismiss.

This case arose during a real estate closing. Joyner, the buyer, noticed that all the closing documents incorrectly named Robert Estep as the purchaser. Both Joyner and Estep so informed Bailey, a real estate attorney who represented American General Finance, Inc., the lender. Bailey undertook to correct the error on most of the documents and allegedly promised to correct the deed. Bailey then asked Citicorp Mortgage, Inc. (“Citicorp”), the seller, to draft a new warranty deed and forward it to him. When Citicorp drafted the new warranty deed, it did not remove Estep’s name. Bailey or his agents failed to notice the error and filed the deed with the clerk of court. This act purportedly clouded Joyner’s title to the property and caused her to be named in two lawsuits.

Bailey moved to dismiss Joyner’s complaint on the ground that she failed to comply with OCGA § 9-11-9.1’s affidavit requirement. The trial court denied the motion, finding that the complaint contained no allegations of professional negligence which would require an expert affidavit. Bailey then filed this interlocutory appeal. Held:

The trial court properly denied the motion to dismiss. Not all complaints alleging wrongful acts committed by professionals must be accompanied by an expert’s affidavit in compliance with OCGA § 9-11-9.1. Howard v. City of Columbus, 219 Ga. App. 569, 572 (2) (466 SE2d 51) (1995). “‘It is not the intent of OCGA § 9-11-9.1 to cause dismissal of a complaint alleging negligence or breach of a duty merely because the defendant asserts he is a “professional.” ’ [Cit.]” Flowers v. Memorial Med. Center, 198 Ga. App. 651, 652 (402 SE2d 541) (1991). “[T]here are instances in which actions performed by or under the supervision of a professional are nevertheless not professional acts constituting professional malpractice, but, rather, are acts of simple negligence which would not require proof by expert evidence.” Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (3) (395 SE2d 809) (1990). The breach of a duty requiring ordinary care, albeit in a legal context, is not legal malpractice triggering OCGA § 9-11-9.1. See HCA Health Svcs. &c. v. Hampshire, 206 Ga. App. 108, 113 (4) (c) (424 SE2d 293) (1992).

Decided November 19, 1997

Reconsideration denied December 15, 1997.

Hawkins & Parnell, Thomas F. Wamsley, Jr., Christine L. Mast, H. Lane Young II, for appellant.

Lawrence, Ford & Ridgway, Francis N. Ford, for appellee.

The gravamen of Joyner’s claim is that “Bailey, acting through his employees and agents, negligently presented the erroneous deed to the Clerk of Court, Putnam County, for filing in the official property records.” Nothing in these allegations requires expert proof to establish negligence. Kneip, 260 Ga. at 410 (3). Nor do the allegations raise an implication that the act required professional legal judgment or that only a person with professional legal training was authorized to undertake it. Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (2) (354 SE2d 872) (1987). The decisive factor in the injury underlying this litigation was not a legal misjudgment, but an apparent failure to make sure that Citicorp corrected the name on the deed as it had promised. Id. Because the complaint “may be construed to state a cause of action for simple negligence, i.e. negligence that can be determined without the resort to expert testimony,” we decline to reverse. Piedmont Hosp. v. Milton, 189 Ga. App. 563, 564 (377 SE2d 198) (1988); see Jones v. Bates, 261 Ga. 240, 242 (2) (403 SE2d 804) (1991).

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A97A2454.
    STEINER v. HANDLER et al.
    (495 SE2d 132)
   Birdsong, Presiding Judge.

Appellant Cynthia L. Steiner appeals the order of the superior court granting partial summary judgment to appellees William L. Handler and Karen J. Handler.

Vinings Bank & Trust brought the underlying civil action against three officers and directors of Corporate Art International, Inc. (Corporate Art) and their wives, all of whom had been guarantors for certain promissory notes, agreements and other obligations of Corporate Art. Subsequently, Thornton White Corporation took assignment of the interests of Vinings Bank & Trust (Bank) and was substituted a party-plaintiff. In response to plaintiff’s initial complaint, appellees/defendants William and Karen Handler filed an answer, a counterclaim against plaintiff, and cross-claims for contribution against the other four remaining defendants, including appellant and her spouse, based on the Handlers’ payment to plaintiff on defendants’ guaranty liability. Appellees then filed a motion for partial summary judgment against the four cross-claim defendants. Cross-claim defendants Gene W. Young and Cynthia M. Young failed to answer both the initial complaint and the Handlers’ cross-claim, and cross-claim defendant Eric C. Steiner declared bankruptcy before the trial court ruled on the Handlers’ motion; thus, only appellant Cynthia Steiner defended against the motion for partial summary judgment. The trial court granted appellees’ motion and appellant appealed.

The record reflects that in March 1989, Corporate Art obtained a $225,000 line of credit from Vinings Bank & Trust and executed notes in favor of the Bank. Also, in March 1989, the six defendants (Handlers, Youngs and Steiners) each executed and delivered to the Bank guaranty agreements and third-party pledge agreements; the former instruments being executed under seal. The guaranty pertinently provided: “The obligations covered by this Guaranty include any and all indebtedness or liability of the Principal to the Bank now existing or hereafter coming into existence, whether express or implied, direct or indirect, absolute or contingent, and any renewals or extensions thereof, in whole or in part. . . .” The Guaranty expressly was being given “[i]n consideration of the sum of Five Dollars ($5.00) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, as well as for the purpose of inducing the [Bank] to extend credit to [Corporate Art] ... or to renew or extend in whole or in part any existing indebtedness of [Corporate Art] to Bank.”

In early 1991, appellant and Eric Steiner were divorced. (Note: Appellees assert and appellant does not deny that she has since remarried Eric Steiner.) Subsequently, there was a rearrangement of the structure of the indebtedness between the Bank and Corporate Art and a new agreement and loan arrangement were reached as memorialized by a consolidated loan and security agreement and master note, dated June 5, 1991. The 1991 loan and security agreement were modified on at least three subsequent occasions, as memorialized in a forbearance agreement, a first modification of the loan and security agreement, dated January 31, 1992, and a second modification of the loan and security agreement, dated September 29, 1992. The only documents personally signed by appellant, however, were the original guaranty and third-party pledge agreement of 1989. In April 1993, the Bank declared a default on the Corporate Art line of credit agreement and demanded payment of $249,000 from Corporate Art and its guarantors. Certain corporate assets were applied to the debt and the Bank advertised to foreclose deeds to secure debt on realty pledged by appellees. Appellees paid $176,000 to the Bank on their guaranty liability and the joint and several liability of their co-defendants. Appellant enumerates three errors. Held:

1. In the trial court, appellant asserted the defense of lack of consideration against the claims of contribution of the appellees. The trial court, citing OCGA § 10-7-1 and Griffin v. Ga.-Pacific Corp., 177 Ga. App. 852 (341 SE2d 499), found that lack of consideration is not a defense. The original guaranty agreement reveals on its face that appellant and her husband received $5 and other valuable consideration, including the extension of credit to Corporate Art. A contract of surety can be based, as was done in this case, on “consideration of credit or indulgence or other benefit given to [the surety’s] principal.” See generally OCGA § 10-7-1; compare Virgil v. Kapplin, 187 Ga. App. 206, 208 (3) (369 SE2d 808). Moreover, appellant does not expressly enumerate as error the trial court’s holding that lack of consideration was not a defense, and such a contention is not reasonably contained within any of the errors enumerated. Thus, this issue is not preserved on appeal. See DeKalb County v. Lenowitz, 218 Ga. App. 884, 887 (1) (463 SE2d 539).

2. Appellant, citing Bearden v. Ebcap Supply Co., 108 Ga. App. 375 (133 SE2d 62), tacitly asserts that her 1989 guaranty was unenforceable because she executed the instrument when she was married to Eric Steiner. However, when appellant signed the instrument, married women had become vested with the legal power to enter into valid suretyship agreements. See generally OCGA §§ 10-7-1; 19-3-10. Bearden, supra, is distinguishable from the facts of this case. Moreover, this contention is not reasonably contained within the scope of appellant’s enumerations of error and, thus, is not preserved on appeal. DeKalb County, supra.

3. Appellant contends the trial court erred in granting partial summary judgment against her, because the 1991 agreement and its subsequent modifications effected a novation of those instruments on which her liability was based. Appellant agreed in 1989 to guarantee payment of the line of credit for Corporate Art — the corporation of which her husband was president and shareholder. The guaranty pertinently extended to “any and all indebtedness or liability of the Principal to the Bank now existing or hereafter coming into existence. . . .” (Emphasis supplied.) The guaranty also contained certain express waivers of various rights by appellant, including the following: “The Undersigned [appellant and husband] hereby consents and agrees that the Bank may at any time without notice to or further consent from the Undersigned, either with or without consideration: ... (2) Extend or renew for any period, whether or not longer than the original period, alter, modify or exchange any of the Obligations or any writing evidencing the Obligations hereunder. . . .” (Emphasis supplied.) Further, appellant expressly waived, inter alia, notice of “the creation or extension or renewal of any [obligation” under the guaranty; and, “agree[d] that the terms, conditions and provisions of any note or other evidences of indebtedness secured by this Guaranty, heretofore or hereafter executed, shall be and become a part of this Guaranty, the Undersigned [appellant and husband] hereby ratifying and confirming all such terms, conditions, and provisions of said notes or other evidences of indebtedness.” (Emphasis supplied.) It is clear from a reading of the guaranty in its entirety that appellant consented in advance to the very course of conduct in which the Bank subsequently, and in good faith, engaged to benefit Corporate Art. “It is axiomatic that ‘(a) surety or guarantor may consent in advance to a course of conduct which would otherwise result in his discharge.’ ” Anderton v. Certainteed Corp., 201 Ga. App. 538, 539-540 (1) (411 SE2d 558); accord Dunlap v. C & S DeKalb Bank, 134 Ga. App. 893, 896 (4) (216 SE2d 651) (surety or guarantor may consent in advance to course of conduct which otherwise would result in his discharge); compare Greenwald v. Columbus Bank &c., 228 Ga. App. 527 (492 SE2d 248) (guarantors can consent in advance to changes that are subsequently made). Appellant agreed in advance to the providing of additional credit extensions by the Bank and gave guaranty as to any and all indebtedness or liability of Corporate Art now existing or hereafter coming into existence. Moreover, appellant expressly consented in advance to the Bank’s giving, without notice to or further consent by appellant, with or without consideration, to the extension or renewal of any of the obligations, arising under the guaranty, for any period and to the alteration, modification, or exchange of any of the obligations arising under the guaranty. “ ‘Thus, since [appellant] consented in advance to be responsible for just such [instruments as subsequently were executed without her participation and to the obligations arising therefrom, she] cannot have been discharged as a surety by [such occurrences], even if under other circumstances such a note could be considered a novation.’ ” Anderton, supra at 540 (1); accord Dever v. Lee, 188 Ga. App. 483, 485 (3) (373 SE2d 224). Upshaw v. First State Bank, 244 Ga. 433 (260 SE2d 483) is distinguishable and not controlling. Appellant’s first enumeration of error is without merit.

4. Appellant contends the trial court erred in disregarding the affidavit of Eric Steiner which demonstrated that a genuine issue of material fact exists whether the contribution claim should be barred because of an agreement between William Handler and Eric Steiner. Mr. Steiner merely stated in his affidavit that he, Gene Young, and William Handler “became the principals of [Corporate Art] with the understanding that Mr. Handler would provide the funding and Mr. Young and myself the expertise to run the business. Our understanding . . . throughout the operation of the business, was that Handler would not seek contribution from us of any amounts owed by [Corporate Art] to other entities, including Vinings Bank & Trust.” Mr. Handler executed an affidavit in which he expressly denies that he ever discussed contribution or waiver of any claim of contribution with Eric or Cynthia Steiner.

Assuming for purposes of this partial summary judgment litigation that Mr. Handler had a mere “understanding” with Eric Steiner and Gene Young that he would not seek contribution, nevertheless, this fact alone would not create an enforceable agreement not to seek contribution, particularly a specific agreement for the third-party benefit of appellant Cynthia Steiner. OCGA § 13-3-1 provides: “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” See also OCGA § 13-3-2. There exists no evidence that this so-called understanding was intended by the parties to be a binding agreement or that it was backed by adequate consideration (see, e.g., OCGA §§ 13-3-40 (a); 13-3-41; 13-3-42). Further, utilizing the test to determine whether a contract is unenforceable because of vagueness set forth in Davidson Mineral Properties v. Baird, 260 Ga. 75, 79 (7) (390 SE2d 33), we conclude that this mere “understanding” was too vague to be enforceable. See also E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 362 (7) (359 SE2d 148); Jones v. Ely, 95 Ga. App. 4 (96 SE2d 536). Assuming arguendo that the so-called “understanding” had constituted an enforceable agreement in accordance with limited subject matter stated in Mr. Steiner’s affidavit, there exists no evidence that appellant Cynthia Steiner was a party to or a third-party beneficiary of such an agreement.

5. Appellant contends the trial court erred in granting partial summary judgment as it disregarded the requirement of commercial reasonableness on disposition of collateral. We note that “the reciprocal rights and liabilities among the cosureties which arise from the relationship, such as the right to contribution and to the benefit of security and indemnity in the hands of the other, are not founded on contract but on general considerations of justice and equity.” Floyd Davis Sales v. Central Mtg. Co., 197 Ga. App. 532, 533 (398 SE2d 820). OCGA § 23-2-71 provides: “In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden and one has paid more than his share, he shall be entitled to contribution from the others. . . .” The right of appellees to obtain contribution is not restricted to their first establishing that the creditor Bank disposed of the collateral in a commercially reasonable manner. “The permission to have contribution ‘where all are equally bound to bear the common burden, and one has paid more than his share,’ is absolutely unrestricted.” Southern R. Co. v. City of Rome, 179 Ga. 449, 452 (176 SE 7). (Moreover, the burden of enforcing the Bank’s obligations toward the collateral should not, in fairness, be imposed upon the unfortunate coguarantor or cosurety who has been required to make payments for all. Cf. 38 AmJur2d, Guaranty, § 129.) The authority cited by appellant, pertaining to the right of a creditor to claim a deficiency resulting from a sale of collateral, is not controlling as to this issue.

Decided December 15, 1997.

George M. Geeslin, for appellant.

Gershon, Olim, Katz & Loeb, Jay E. Loeb, for appellees.

Additionally, the record does not contain any evidence that the Bank failed to sell the Corporate Art collateral in a commercially reasonable manner; applying the standard in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), we find no genuine issue of material fact would exist as to appellant’s contention. Appellant’s enumeration, as crafted, is without merit.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A2529.
    FLINT ELECTRIC MEMBERSHIP CORPORATION v. ED SMITH CONSTRUCTION COMPANY, INC.
    (495 SE2d 136)
   Birdsong, Presiding Judge.

Appellant Flint Electric Membership Corporation appeals from an order granting summary judgment in behalf of appellee/third-party defendant Ed Smith Construction Company, Inc.

Suit was filed for damages for personal injury and loss of consortium by Edward and Patricia Lee against appellant Flint Electric who, contemporaneously with the filing of their answer, filed a third-party complaint against Ed Smith Construction Company relying upon the indemnity provisions of the “High-voltage Safety Act.” See generally OCGA § 46-3-30 et seq. At the time of injury, Mr. Lee was an employee of appellee construction company. While the construction company was reconstructing a bridge and culvert, a crane being operated by one of its employees came in contact with a high-voltage line of appellant electric company. Mr. Lee who was on the job at the time sustained an electrical shock when electricity from appellant’s lines passed through the crane’s cable into a bundle of steel bars that he was touching. Thereafter, Mr. Lee filed a workers’ compensation claim against the construction company and was awarded some weekly and medical benefits until the self-insured workers’ compensation program went into receivership. Appellant’s sole enumeration is that the trial court erred in granting appellee’s motion for summary judgment. Appellant contends that it was entitled to indemnity under the provisions of the High-voltage Safety Act and that such indemnity is not and should not be barred by the exclusive remedy provision of the Workers’ Compensation Act. Held:

OCGA § 46-3-40 (b) of the High-voltage Safety Act pertinently provides: “Any person responsible for the work who violates the requirements of Code Section 46-3-33 [required conditions for commencing work within ten feet of high-voltage line] and whose subsequent activities within the vicinity of high-voltage lines result in . . . injury or damage to person or property shall be strictly liable for said injury or damage. Any such person shall also indemnify the owner or operator of such high-voltage lines against all claims, if any, for personal injury, including death, property damage, or service interruptions, including costs incurred in defending any such claims resulting from work in violation of Code Section 46-3-33.” Except as exempted under §§ 46-3-37 and 46-3-48, which sections are not here applicable, the term, “ ‘[p]erson responsible for the work’ means the person actually doing the work as well as any person, firm or corporation who employs and carries on his payroll any person actually doing the work.” OCGA § 46-3-32 (3). Although the above indemnity provisions are statutory, appellee construction company contends it cannot be subjected to suit, as a third party, in view of the exclusive remedy bar of the Workers’ Compensation Act (OCGA § 34-9-11). OCGA § 34-9-11 (a) pertinently provides: “The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... , at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee. . . .”

The issue before us is whether and, if so, to what extent the workers’ compensation exclusive remedy provision should bar the express indemnity provisions of the High-voltage Safety Act. This issue was resolved in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 SE2d 171) (whole court). As stated in City of Dalton, supra at 820, the High-voltage Safety Act notwithstanding, “the employee may not sue the employer in tort, and the employer may not be impleaded as a joint tortfeasor in an employee’s action against a third party.” The High-voltage Safety Act does not create an exception to the exclusive remedy provision of the Workers’ Compensation Act. Id. at 820; see also Preston v. Ga. Power Co., 227 Ga. App. 449, 452 (1) (489 SE2d 573) (trial court did not err in holding plaintiff was a borrowed servant and his claim, involving application of the High-voltage Safety Act, was barred by OCGA § 34-9-11 (a)).

Decided December 15, 1997

Chambless, Higdon & Carson, Emmitte H. Griggs, Jon C. Wolfe, Joseph H. Davis, Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, for appellant.

Weissman, Nowack, Curry & Zaleon, Frances R. Mathis, Leigh M. Wilco, for appellee.

We decline appellant’s importuning to cause our holding in City of Dalton, supra, to be revisited and overruled; as appellant correctly concedes, Dalton, supra, “decided that the exclusive remedy bar did prevent actions such as the one brought by Flint Electric in this case.”

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


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

text:
    A97A0890.
    HINSON v. THE STATE.
    (494 SE2d 693)
   McMurray, Presiding Judge.

Defendant Fitzgerald Hinson a/k/a Columbus Hinson was tried before a jury and found guilty of trafficking in cocaine, violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute), and possession of a firearm during the commission of a crime. Defendant’s motion for new trial was denied, and this appeal followed. In 12 enumerations of error, he complains of the sufficiency of the evidence, the denial of his motion to suppress, the introduction of similar crimes evidence and the failure to give a contemporaneous limiting instruction, the denial of his motion for mistrial, the introduction of defendant’s incriminating statement, the failure to charge on a lesser included offense, and the effectiveness of trial counsel. Held:

1. (a) The denial of defendant’s motion to suppress will be considered first. “When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court [is] guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial [court] hears the evidence, and [its] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [those findings]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” (Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646).

At the hearing on defendant’s suppression motion, uniform Officer D. K. Byers of the DeKalb County Police Department testified that on February 6, 1994, he was dispatched to Eobin Hill Court at 2:00 a.m., to investigate a possible kidnapping, in response to William Hugh Bell’s complaint to police that “his wife, Kelly Bell, was being . . . held against her will . . . [by a man] known to carry a weapon. . . .” Mr. Bell identified that man by name as defendant, Columbus Hinson. “Mr. Bell said . . ., that’s him, indicating [a] car that had just pulled up.” Officer Byers observed as “Ms. Bell was brought home by [defendant] in a car [that defendant] parked at the adjacent house from where Ms. Bell lives.” Officer Byers “stopped the vehicle and stopped [defendant]. [Officer Byers] checked the vehicle for [his (Officer Byers’)] safety for weapons,” including those areas where, in his experience, weapons have been concealed, “which would be under the passenger seat, under the driver’s seat, between the seats, the glove box, et cetera.” Officer Byers had not yet had a “chance to talk to [Ms. Bell] until after he stopped [defendant].” “Under the front passenger seat, [Officer Byers] located a paper bag that contained ... 88 rocks, [that] is, little chunks of crack cocaine, each in their own separate plastic bags, [and also] located [18.7 grams of] powder cocaine, . . . and [further] located [30.3 grams of] suspected marijuana.” “In the glove box [Officer Byers] located a [Glock]. It was a Model 21. It was a semiautomatic pistol, .45 caliber.”

Defendant contends the trial court erred in denying his motion to suppress, arguing he was subjected to a warrantless arrest without probable cause when Officer Byers ordered him out of his car at gunpoint and placed him in the back of the patrol car.

(b) “A policeman making a reasonable investigatory stop may conduct a limited protective search for concealed weapons when he has reason to believe that the suspect is armed and dangerous, and if, during the search contraband is turned up, it may be used as evidence in a prosecution for its possession. Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612).” (Emphasis omitted.) Bethea v. State, 127 Ga. App. 97, 98 (192 SE2d 554). The question for decision in the case sub judice is whether Officer Byers had a reasonable suspicion that defendant was engaged in criminal activity to warrant a forcible stop of defendant’s car and a search of defendant’s person and vehicle for weapons. Based upon the information supplied to Officer Byers by William Hugh Bell, we conclude the forcible stop and protective search were justified under the circumstances.

(c) “To justify a brief ‘Terry’ stop [under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)], an officer must have an articulable, reasonable suspicion that the law is being violated. The reasons justifying an investigatory stop need not rise to the level of probable cause, but must be more than a mere hunch and must not be arbitrary or harassing.” (Footnotes omitted.) Sams v. State, 265 Ga. 534, 535 (1) (459 SE2d 551).

In the case sub judice, a reasonable, articulable suspicion that defendant was engaged in an armed kidnapping was supplied by William Hugh Bell. “[W]here the hearsay ... is [supplied by] an identified interested citizen[,] . . . the credibility is not as suspect and the analysis is not as stringent [as where information is supplied by an anonymous tipster].” Tuzman v. State, 145 Ga. App. 761, 764 (2) (A), 766 (244 SE2d 882). “[A] law-abiding citizen has a ‘built in’ credibility. [Cit.]” Miller v. State, 155 Ga. App. 399 (I) (A), 400 (270 SE2d 822). See also Devier v. State, 247 Ga. 635, 637-638 (5) (277 SE2d 729) (A hearsay declarant is deemed reliable upon a showing that “he or she is a police officer, the victim of the crime, a law-abiding and trustworthy citizen, or even a declarant against penal interest. [Cits.]”). “The Supreme Court [of the United States] has ‘recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.’ Michigan v. Long, 463 U. S. 1032, 1047 (III) (103 SC 3469, 77 LE2d 1201) (1983).” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321). Consequently, Officer Byers’ decision to detain defendant pending an accurate assessment of the situation was not unreasonable under the circumstances. Id. It follows that the protective search of defendant and his vehicle for weapons was authorized and that the trial court correctly refused to suppress the contraband discovered on defendant’s person and in his vehicle during the protective search for weapons.

2. Under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), the evidence adduced at trial was sufficient to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, of trafficking in cocaine, violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute), and possessing a firearm during the commission of a crime as alleged in the indictment.

3. Defendant’s fifth enumeration has merit. Under the controlling authority of the recent whole court decision in Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157), the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence. Consequently, we reverse the judgment of conviction for all three counts and remand for a new trial.

4. The defendant’s remaining enumerations have been considered and are found to be without merit or to present circumstances ■ unlikely to recur upon any retrial.

Judgment reversed.

Andrews, C. J., Birdsong, P. J., Smith and Eldridge, JJ., concur and also concur specially. Beasley and Ruffin, JJ., concur in Divisions 2, 3, 4, and in the judgment.

Eldridge, Judge,

concurring specially.

I concur fully with the majority. It is acceptable under the Fourth Amendment for the police to stop persons and detain them briefly in order to investigate a “reasonable suspicion” that the persons have engaged or are about to engage in criminal activity. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). “Reasonable suspicion” is determined from the totality of the circumstances based upon some minimal objective justification for the stop. United States v. Sokolow, 490 U. S. 1 (109 SC 1581, 104 LE2d 1) (1989). The Terry rationale applies to allow the police to conduct an investigatory stop of a car. United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605) (1985). Thereafter, under Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983), “the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.” (Emphasis supplied.) Id. at 1051.

The information provided to Officer Byers from the victim’s husband that his wife had been kidnapped by the appellant; that appellant was known to carry a gun; that the victim had been gone for almost 12 hours; and that the husband had received a recent telephone call from the victim wherein she related that appellant had threatened to harm her, provided sufficient articulable, objective criteria to justify both the stop of appellant’s car in order to find out what was going on and an area search of the passenger compartment of the car for the officer’s safety prior to questioning.

It is irrelevant that the officer did not follow the alleged kidnap victim into the house and obtain more information before detaining appellant, when the information that he had was sufficient to warrant the stop. Since the evidence showed that appellant was driving away, the detention was necessary immediately in order to ascertain the situation.

It is also irrelevant that appellant was secured in the back of the police vehicle when the passenger compartment was being searched. Although Michigan v. Long speaks to an. officer’s belief that a suspect “may gain immediate control of weapons,” id. at 1049, the use of the term “immediate control” must not be taken out of the context of the opinion. The Supreme Court specifically held in Michigan v. Long, “The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. This reasoning is mistaken[.] . . . During any investigative detention, the suspect is ‘in the control’ of the officers in the sense that he may be briefly detained against his will[,] . . . [but] if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.” (Citations and punctuation omitted; emphasis supplied.) Id. at 1051-1052. Clearly, the term “immediate control” encompasses a situation wherein a suspect is released after detention and has the potential immediately thereafter to obtain control of a weapon by returning to the vehicle. “[A] Terry investigation, such as the one that occurred here, involves a police investigation ‘at close range,’ when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a ‘quick decision as to how to protect himself and others from possible danger. In such circumstances, we have not required that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.” (Citations and punctuation omitted; emphasis omitted and supplied.) Id. at 1052.

I am authorized to state that Chief Judge Andrews, Presiding Judge Birdsong, and Judge Smith join in this special concurrence.

Beasley, Judge,

concurring in the reversal of the judgment.

I concur fully in Divisions 2, 3, and 4 of the majority opinion but not with the application of controlling principles in Division 1. The reversal of the judgment is also required because of the trial court’s ruling on the motion to suppress, which Hinson justifiably enumerates as error.

“Although we construe the evidence most favorably to upholding the trial court’s findings and judgment, this court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision.” (Citations and punctuation omitted.) Raulerson v. State, 223 Ga. App. 556, 557 (2) (479 SE2d 386) (1996).

In addition to the facts outlined in the majority opinion, others are relevant. William Bell, the “concerned citizen,” was not known to Officer Byers. The only suggestion that Hinson might have access to a weapon was Bell’s saying that the person was “known to carry a weapon.” When Mrs. Bell got out of the front passenger side of the car and headed into the house, she did not speak to the officer or her husband, who were standing in the yard. Hinson began to back out of the neighbor’s driveway, but the officer activated the blue light on his marked patrol car and positioned the patrol car to prevent Hinson’s leaving. He wanted to investigate “the extent [and] nature ... of the two being together.” He ordered Hinson out of the car at gunpoint and locked him in the back of the patrol car. According to the officer, Hinson was cooperative, not abusive or offensive towards the officer, and had committed no known offense. No one else was in Hinson’s car.

At that point, before asking Hinson or Kelly Bell any questions, the officer searched those areas of the passenger compartment of Hinson’s car where weapons might be hidden, including the glove compartment and the area under the front seats. The officer testified that he conducted this search for his own safety. Under the passenger seat, the officer found a bag containing cocaine and marijuana, and inside the glove compartment he found a .45 caliber pistol. He then went further and searched the trunk, where he found a shotgun.

The trial court found the officer had “probable cause” to stop and detain Hinson and “probable cause” to search the car because of Bell’s reported statement that Hinson was known to carry a weapon. It appears the trial court merely used the wrong terms and in fact agreed with the State’s arguments that (1) the officer had “articu-lable suspicion” to perform a brief investigative stop; and (2) the limited search of the vehicle for weapons was justified by concern for the officer’s safety, pursuant to Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983). Assuming a brief investigative stop was warranted, see Streicher v. State, 213 Ga. App. 670, 672 (445 SE2d 815) (1994), the subsequent non-warrant search was unreasonable under the circumstances.

In Michigan v. Long, supra, 463 U. S. at 1035-1036, officers detained Long for an investigation after he ran his car into a ditch. Long exited the car and met officers at its rear, but he did not immediately respond to questions and appeared to be “under the influence of something.” When Long turned and began walking toward the open car door, officers saw a large hunting knife on its floorboard. They stopped Long and conducted an unfruitful “pat-down” search of his person for weapons. One officer then shined a light into the car and, observing something protruding from under the armrest, lifted the armrest and found marijuana.

The court ruled the limited search justified by the officers’ concern that Long might have access to a weapon in the car and held “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Id. at 1049.

Bentley v. State, 214 Ga. App. 580, 582-583 (3) (448 SE2d 479) (1994), held police were justified in searching a passenger compartment after drug suspects stated they had weapons in their car. In Newby v. State, 178 Ga. App. 891, 892 (2) (345 SE2d 102) (1986), a protective search for weapons was justified when police stopped suspects who had reportedly committed armed robbery a few minutes earlier and saw the butt of a firearm protruding from under the front seat of the suspects’ car. Holbrook v. State, 177 Ga. App. 318, 319-321 (1) (339 SE2d 346) (1985), held a protective sweep of a vehicle before it was returned to a detained suspect was justified by facts showing that defendant was on probation, his father had just been stopped in possession of a weapon, his brother was a prison escapee, the three men were known to the FBI as frequent drug traffickers, and the police had information that a bank robbery might be in the offing. Compare State v. Jarrells, 207 Ga. App. 192, 193-194 (4) (427 SE2d 568) (1993), a case remanded for the trial court to determine whether, as an incident to detention, a vehicle search for weapons was justified by reasonable articulable belief of the presence of a weapon of which an occupant might gain immediate control. A weapon search is not justified in law merely by the statement of the officer that caution for safety is the reason for the search; objective facts must support the fear of danger created by the possibility that the suspect will gain control of a weapon if the police do not secure it first.

As the Supreme Court stated in Michigan v. Long, supra, the police may not conduct such searches every time they conduct an investigative stop. 463 U. S. at 1049, n. 14. A protective sweep of a vehicle’s passenger compartment is merely an extension of the investigative stop, the scope of which “is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.” (Citation and punctuation omitted.) State v. Brown, 178 Ga. App. 307, 308 (1) (342 SE2d 779) (1986). The search, like the investigative stop, must be “reasonably related in scope to the circumstances which justified the interference in the first place.” (Citation and punctuation omitted.) Tarwid v. State, 184 Ga. App. 853, 855 (363 SE2d 63) (1987). The “weapons search” of Hinson’s car at the point conducted was not justified by the circumstances.

First, the only information which could have justified the search of Hinson’s vehicle was Bell’s reported statement that Hinson was “known to carry a weapon.” Nothing in the record shows how Bell obtained this information or whether the officer and Bell even talked about it, and nothing in Bell’s reported statement indicated Hinson was carrying a weapon that night. See Oboh v. State, 217 Ga. App. 553, 555-556 (458 SE2d 177) (1995) (stop not justified by bank tellers’ statements that defendant was “acting very suspicious”). The credibility of Bell’s allegations was jeopardized by the event as it unfolded before the officer: Bell’s “kidnapped” wife was brought home within an hour of the officer’s dispatch to the residence, left the car with no apparent sign that she and Hinson had been fighting or arguing, and simply walked in the front door of her house without approaching her husband or the police officer. The officer knew that Mrs. Bell and Hinson were acquaintances. The record does not show that the officer asked Hinson if he was armed, or conducted a pat-down search of Hinson’s person, or saw any weapons in Hinson’s car prior to the search, or made any inquiry of Hinson about who he was or why he was with Mrs. Bell. Compare Michigan v. Long, supra; Bentley, supra.

In addition, at the time of the search Hinson was locked in the patrol car and presented no danger to the officer. As the State notes, an officer may be justified in searching a vehicle for weapons before releasing a suspect he has not arrested. See Holbrook, supra. But Officer Byers conducted the search before he ever determined he would release Hinson or had reason to believe Hinson would use a weapon if released back to his car and given the liberty to leave. When asked why he searched the Hinson vehicle before questioning Kelly Bell, the officer explained: “I was going to investigate it and since Mr. Hinson’s vehicle was identified as being his vehicle, presumably with him in it, and I had the suspect of the alleged kidnapping there,... it wouldn’t have been a good idea for me to let him go having a suspect for an alleged kidnapping there when I could have completed the case right there by making that arrest, if, in fact, it was a kidnapping. And also Mrs. Bell [was not going] anywhere else. So I could have questioned her later on as to the facts of the case, which I did in fact do.” At the time of the search the officer did not know whether Hinson would be formally arrested or allowed to reenter his car.

An investigative stop must be “limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.” (Citation and punctuation omitted.) Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995). Although the officer had no reasonable grounds to detain Hinson except to investigate whether there was a kidnapping, he searched the Hinson vehicle before making any effort to speak to the alleged victim. As recited above, the officer’s own testimony shows he conducted this search before making any attempt to investigate whether Hinson had committed a crime against Kelly Bell.

Thus, the search was not justified by “a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted]’ the officer in believing that [Hinson was] dangerous and . . . [might] gain immediate control of weapons.” Michigan v. Long, supra, 463 U. S. at 1049. The circumstances in this case, unlike those in Michigan v. Long, supra, and the cases cited above, were not shown to be necessary for the officer’s safety and thus did not give him “specific and articulable facts” justifying a search of the vehicle for weapons. Id. The trial court was required by law to grant Hinson’s motion to suppress.

Decided November 7, 1997

Reconsiderations denied December 2, 1997 and December 16, 1997

Sharon D. Smith-Knox, for appellant.

Fitzgerald Hinson, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Benjamin M. First, Assistant District Attorneys, for appellee.

I am authorized to state that Judge Ruffin joins in this concurrence.


author: Beasley, Judge.

text:
    A97A1495, A97A1496.
    ROSE v. FIGGIE INTERNATIONAL, INC.; and vice versa.
    (495 SE2d 77)
   Beasley, Judge.

This is a product liability action arising from an incident in which a nozzle assembly of a fire extinguisher spontaneously exploded and separated from the canister. It caused a cloud of chemicals to disperse in Margaret Rose’s apartment, allegedly harming Rose. She sued the manufacturer of the fire extinguisher, Figgie International, Inc., whose motion in limine was granted so as to exclude evidence of similar spontaneous explosions of the same model extinguisher and to exclude evidence of Figgie’s subsequent recall of the extinguisher for a manufacturing defect that caused spontaneous explosions. At Rose’s request, the court also excluded evidence of psychiatric and psychological evaluations of Rose, which diagnosed Rose as suffering from psychiatric disorders that caused her to create or exaggerate her physical symptoms. In this interlocutory appeal we hold that the trial court erred in granting both motions in limine.

Case No. A97A1495

Since 1980, Figgie has designed, manufactured, marketed, and sold a fire extinguisher known as the American LaFrance Model P-250MA. Figgie admits that in some of the fire extinguishers it manufactured between August and October 1985, the threads on the collar or spud of the extinguishers were slightly out of tolerance, meaning the diameter of the hole into which the valve was screwed was larger than it should have been. This manufacturing defect would sometimes result in the nozzle assembly spontaneously exploding and separating from the canister, the contents of which were under 190 psi of pressure. Figgie’s representative testified that unless an extinguisher was improperly cross-threaded when being recharged, or had been struck sideways with sufficient force to damage the valve, the defective threading was the only reasonable explanation for a spontaneous explosion and valve separation.

Figgie’s records show that by May 1990 it had received notice of over 50 incidents of spontaneous valve separation explosions involving this model. Later that month Captain Irvine of the DeKalb County Fire Department notified Figgie that four extinguishers of this model had recently exploded in DeKalb County. Figgie made no public announcements or warnings at that time.

During the night of September 4, 1990, as Rose and her children slept in their DeKalb County apartment, the nozzle assembly on their Figgie fire extinguisher model P-250MA spontaneously exploded and separated from the canister. Rose inhaled the chemicals released by the explosion while she evacuated her children from the apartment and made phone calls to get help. She alleges she suffered permanent lung damage as a result. The day following the incident, a maintenance employee of the apartment complex disposed of the exploded extinguisher without the knowledge or consent of Rose or Figgie.

In May 1991, Figgie issued a notice recalling its model P-250MA extinguishers manufactured during the August through October 1985 time period and specified the serial numbers, including the serial number of Rose’s extinguisher. The basis for the recall, which references Rose’s and the four other explosions in DeKalb County, was the valve threading defect.

Rose sued Figgie, asserting strict liability, negligent manufacture, breach of warranty, and failure to warn. She also sought punitive damages. Figgie moved to exclude evidence of the 50 other incidents of spontaneous explosions and of the recall notice. Ruling to exclude other-incident evidence, the court explained orally that without the extinguisher Rose could not establish that the other extinguishers were substantially similar, for she could not prove that hers had the same manufacturing defect as the others which exploded. At the hearing on the motion to reconsider the ruling, the court reiterated that “without the instrumentality, I don’t see how you can bring any substantially similar or any other incident in. There is nothing to compare it to. . . . You don’t have the instrumentality to compare to any other incident.” Accordingly, the court also excluded evidence regarding the recall notice. Rose appeals from these two rulings.

1. Decisions to exclude evidence of similar incidents are “reviewed for abuse of the trial court’s discretion. [Cits.]” Whitley v. Gwinnett County, 221 Ga. App. 18, 20 (3) (470 SE2d 724) (1996). But where the record indicates that the court based its decision on a misapprehension of the law, reversal is appropriate. Phillips v. Drake, 215 Ga. App. 210, 211 (1) (449 SE2d 879) (1994). See Flagg v. State, 187 Ga. App. 297, 299 (2) (370 SE2d 46) (1988) (sentencing reversed where court misapprehended the law). This is also true where the court misapprehends the facts. Ga. Building Svcs. v. Perry, 193 Ga. App. 288, 290 (1) (a) (387 SE2d 898) (1989) (exclusion of evidence reversed). We find the trial court based its decision on a misapprehension that the law requires the availability of the instrumentality in question to establish it had the same manufacturing defect.

(a) The court correctly held Rose must first establish that her extinguisher had the manufacturing defect at issue. Without that fact, it would be unnecessary to decide whether the 50 incidents involving other extinguishers with the defect were substantially similar. “In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law.” (Citations and punctuation omitted.) General Motors Corp. v. Moseley, 213 Ga. App. 875, 877 (1) (447 SE2d 302) (1994). See Mack Trucks v. Conkle, 263 Ga. 539, 544 (3) (436 SE2d 635) (1993); Skil Corp. v. Lugsdin, 168 Ga. App. 754, 755 (1) (309 SE2d 921) (1983). Regarding punitive damages, “evidence that appellant knew from complaints of similar incidents that the probable consequence of a certain defect would be to inflict injury was relevant to the question of malice or wanton misconduct. [Cits.]” Skil Corp., supra, 168 Ga. App. at 755. Also, “the manufacturer’s knowledge of dangerous propensities is relevant to its duty to adequately warn of same. [Cits.]” Id.

The court found the absence of Rose’s extinguisher precluded a showing that it had the same manufacturing defect as the other extinguishers. But “[i]t has often been held that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence.” Firestone Tire &c. Co. v. King, 145 Ga. App. 840, 842 (1) (244 SE2d 905) (1978). See Folsom v. Sears, Roebuck & Co., 174 Ga. App. 46, 47 (329 SE2d 217) (1985). Because a product may be destroyed as a result of an incident, circumstantial evidence is particularly appropriate in product liability cases to show the manufacturing defect. For example, in King the tire blowout had destroyed the area containing the allegedly defective material so it could not be observed physically. The court reasoned that “[t]o rule that this prevented [King] from establishing a prima facie case would be to insulate manufacturers from liability for defective products in any case where the defect causes its own destruction. Such a result would be totally untenable.” Id.

Similarly, in Skil Corp., a saw’s blade guard did not close, injuring the plaintiff Lugsdin. Through no fault of either litigant, the saw became unavailable for inspection. Citing the evidence that the saw was new and had not been tampered with or altered, and the expert testimony that there was no other reasonable explanation for failure of the blade guard other than a defect in the saw’s spring mechanism, we concluded that “[circumstantial evidence may be used to establish the existence of a manufacturing defect at the time the product left the manufacturer, even where the product is consumed or destroyed in the use that resulted in the plaintiff’s injury. Based upon the evidence recited above . . ., there was sufficient evidence from which the jury could infer that the saw was defective when sold by the appellant-manufacturer.” (Citations omitted.) 168 Ga. App. at 756-757.

Thus, even without the extinguisher, Rose could use circumstantial evidence to prove it had the same threading defect as the extinguishers in the other incidents. See Central of Ga. R. Co. v. Butts, 211 Ga. App. 619, 620 (1) (440 SE2d 218) (1994) (train car with allegedly defective window had been sold for scrap; circumstantial evidence admitted to show defect); Firestone Tire &c. Co. v. Hall, 152 Ga. App. 560, 562-563 (1) (263 SE2d 449) (1979) (absent the allegedly defective tire, the jury could infer from circumstantial evidence that “there was no other reasonable explanation for the blowout other than a defect in the tire”); Glynn Plymouth v. Davis, 120 Ga. App. 475, 481 (1) (170 SE2d 848) (1969) (though car unavailable, “wholly circumstantial” evidence admissible to show defective brake drums), aff’d 226 Ga. 221 (173 SE2d 691) (1970); Central of Ga. R. Co. v. Keating, 45 Ga. App. 811, 814 (3) (165 SE 87) (1932) (bridge portion destroyed in accident; other portions of bridge admissible to show wood was in rotten condition), rev’d on other grounds, 177 Ga. 345 (170 SE 493) (1933).

(b) Circumstantial evidence relevant to prove a manufacturing defect may include evidence of the existence of the defect in goods produced at the same plant at around the same time. Citing Browning v. Paccar, Inc., 214 Ga. App. 496, 498 (1) (a) (448 SE2d 260) (1994), Goss v. Total Chipping, 220 Ga. App. 643, 645 (1) (a) (469 SE2d 855) (1996), explained that such “cases involve dangerous defects in manufacturing or producing mass-produced items. A defect in one such item in its design or manufacture would necessarily occur in thousands of identical products. In such cases, proving that the defect existed in other products and caused accidents in the past is highly relevant to proving the facts of the case on trial.” See Carsten v. Wilkes Supermarket of Gwinnett County, 181 Ga. App. 834, 835 (1) (353 SE2d 922) (1987) (evidence of no complaints regarding turkeys processed at same plant at same time may show no negligence); Atlanta Coca-Cola Bottling Co. v. Burke, 109 Ga. App. 53, 58-59 (1) (134 SE2d 909) (1964) (evidence of another Coke bottle with foreign substance admissible if shown to come unchanged from same plant); E. T. Comer Co. v. Joyner, 32 Ga. App. 661 (124 SE 356) (1924) (evidence of other bad salt from same storehouse admitted to show defect); Standard Cotton Mills v. Cheatham, 125 Ga. 649, 652-653 (3) (54 SE 650) (1906) (evidence of other misaligned machines in same plant admitted to show this machine was misaligned); Central of Ga. R. Co. v. Bernstein, 113 Ga. 175 (38 SE 394) (1901) (evidence of other negligent blasts from same time period at same site admissible). See generally Annot., “Admissibility, in action against manufacturer, packer, or bottler for personal injury due to defective or injurious condition of article, of evidence that like products were free from, or were subject to, defective or injurious conditions,” 127 ALR 1194 (1940) (a “systematic method of manufacture” will likely produce same defect at other times).

Other jurisdictions agree. For example, Embs v. Pepsi-Cola Bot tling &c., 528 SW2d 703, 706 (Ky. App. 1975), recites: “ ‘Some circumstantial evidence is very strong, as when you find a trout in the milk/ There are some accidents, as where a beverage bottle explodes in the course of normal handling, as to which there is common experience that they do not ordinarily occur without a defect; and this permits the inference of a defect. This is particularly true when there is evidence in the case of the antecedent explosion of other bottles of the same product.” (Citations omitted.)

(c) Figgie nevertheless argues that similar incidents are only admissible in cases alleging a design defect, and not in cases alleging a manufacturing defect, as here. A design defect necessarily results in all products having the defect, whereas a manufacturing defect will only occur in those products which were improperly manufactured following design. But because a manufacturing defect involves the use of a systematic process, evidence that some goods produced during a certain time through a certain process had a defect is probative to show that other goods produced during that same time through the same process may also have the defect. See Goss, supra, 220 Ga. App. at 645; Browning, supra, 214 Ga. App. at 498. See also Davidson Oil Country Supply Co. v. Klockner, Inc., 908 F2d 1238, 1245-1246 (5th Cir. 1990) (similar incidents admissible in both design and manufacturing defects cases).

(d) Figgie next argues that Firestone Tire &c. Co. v. King, supra, 145 Ga. App. at 843 (3), prohibited the use of other incidents to demonstrate the existence of the manufacturing defect. King did not so hold. The manufacturer in King argued that the court should have granted a mistrial when a witness referred to other tire failures. The opinion does not reflect why the manufacturer considered such testimony improper. It may have been because no similarity foundation had been laid, or some other reason. Without addressing whether the testimony was wrongful, we simply held that where the trial court instructed the jury to disregard as unresponsive the testimony objected to, the court acted within its discretion in denying a mistrial.

(e) A jury could infer from the circumstantial evidence that Rose’s extinguisher had the same threading defect as the extinguishers involved in the other 50 spontaneous explosions. Between 1980 and 1990 Figgie had manufactured approximately 900,000 fire extinguishers. Figgie admitted that during a specific three-month period in 1985 it manufactured 18,000 P-250MA extinguishers, some of which contained a threading defect that would cause the nozzle assemblies from these extinguishers to spontaneously explode and separate from their canisters. Such explosions, in addition to explosions caused by improper recharging, in fact occurred over 50 times. Four were in DeKalb County. Figgie eventually recalled all P-250MA extinguishers manufactured during this three-month period, identifying them by serial number. The P-250MA extinguisher which spontaneously exploded in Rose’s DeKalb County apartment was identified by its serial number as manufactured by Figgie during the specific three-month period and as a product included in the recall notice. Even without the extinguisher, such circumstantial evidence is sufficient to establish Rose’s extinguisher had the threading defect.

(f) Figgie points out, as the cause of the explosion, that in Rose’s original complaint she alleged that on the day preceding the incident the apartment maintenance man had improperly recharged her extinguisher. Citing Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 602-603 (385 SE2d 677) (1989), Figgie argues that Rose, having failed to withdraw these allegations, is bound by them as admissions and may not attempt to prove otherwise. Figgie asserts that because an improper recharge immediately prior to the incident would virtually destroy the inference that a manufacturing defect caused the explosion, this disproves the existence of the defect in Rose’s extinguisher and differentiates this explosion from the 50 other incidents.

Following substantial discovery Rose in fact had withdrawn the allegations of recharge, as conceded by Figgie’s counsel at oral argument. Even though these allegations may be used as evidence against Rose, they are not conclusive, and she is free to refute or explain them. Strozier, supra, 192 Ga. App. at 603. In deposition she explained that these allegations resulted from a miscommunication with her counsel and that the extinguisher had not been moved or touched since a maintenance man checked it in 1986.

(g) The circumstantial evidence being sufficient to demonstrate a threading defect in Rose’s extinguisher, the next inquiry is whether the other 50 incidents were substantially similar to the incident in question so as to be admissible to prove notice and punitive damages. Moseley, supra, 213 Ga. App. at 877. In the 50 incidents, the nozzle assembly spontaneously exploded and separated in a passive environment and were not preceded by a recharging or a striking of the nozzle. These extinguishers had the threading problem and were manufactured at the same plant during the same time as Rose’s. Such demonstrates substantial similarity.

2. Rose contends that the evidence of the product recall is similarly relevant. We agree. “The recall letter is admissible as long as there is first introduced some independent proof that the particular product in question suffered from the same defect. The recall letter alone is insufficient to create a jury issue of the presence of such a defect in the product. But, it is relevant on the question whether the defect was present when the [extinguisher] left the manufacturer.” Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 287 (2) (260 SE2d 20) (1979). See Browning, supra, 214 Ga. App. at 497-498 (1) (lack of recall admissible to show no design defect). See also Hessen v. Jaguar Cars, 915 F2d 641, 648-649 (11th Cir. 1990) (car destroyed by fire; recall of bad fuel hose in similar cars admitted); Nevels v. Ford Motor Co., 439 F2d 251, 258 (5th Cir. 1971) (recall for defective steering mechanism of same model car admitted). Compare Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 258-259 (5) (a) (461 SE2d 877) (1995) (recall not admitted because concerned a different tire), reVd on other grounds 267 Ga. 226 (476 SE2d 565) (1996).

In sum, the trial court erroneously ruled that without the extinguisher there was no independent evidence that Rose’s extinguisher suffered from the same defect. Other circumstantial evidence reflects that Rose’s extinguisher had the threading defect. The court also erred in excluding the evidence regarding recall.

Case No. A97A1496

Figgie cross-appealed the ruling of the trial court excluding the testimony of Dr. David M. Davis, a psychiatrist, and Dr. W. James Powell, a psychologist, who would testify Rose has psychiatric disorders that explain the cause and extent of her alleged respiratory ailments. The ruling exceeded the court’s discretion and requires reversal.

Soon after the explosion, Dr. Cook, a pulmonologist, began treating Rose for respiratory problems. Despite a medical history of an apneic spell, seasonal hayfever and allergies, a punctured or damaged lung, and shortness of breath, she told Dr. Cook she had never experienced any type of respiratory problems previously. He has since treated her for chronic obstruction bronchitis, or a bronchospastic disorder, which in his first deposition he could not say to a reasonable medical certainty was caused by her inhalation of the airborne material arising from the explosion incident. He testified in a later deposition that based on the lack of any prior respiratory problems, he believed to a reasonable medical certainty the explosion caused her pulmonary disorders.

The court ordered Rose to undergo an exam from a pulmonologist (Dr. Wellman) hired by Figgie. Dr. Wellman detected audible wheezes in her lungs and determined she had an obstructive airways disease. But he also determined that she made an “extremely minimal” effort to cooperate with his instructions and to exhale maximally. He concluded that “she was trying to make me think that she was actually sicker than she really is.” He further opined that her lung problems were not related to the explosion.

Dr. Burton, a county medical examiner, reviewed Rose’s medical records and the contents of the fire extinguisher and opined that Rose’s ongoing lung problems were not related to the explosion. Rather, he felt her problems were more consistent with a sporadic asthmatic-type bronchitis, commonly associated with seasonal allergies. He also noted various references in her medical records to “functional overlay,” which refers to medical problems without an organic cause but having most likely an emotional or mental cause.

Figgie then deposed Dr. Mazzeo, a neurologist who between 1992 and 1994 treated Rose four times for headaches arising from an auto accident. In addition to her headaches, Rose complained she was depressed and anxious, and Dr. Mazzeo prescribed anti-depressant medicine. But his examinations did not reveal any physical neurological abnormalities to explain her headaches. He diagnosed her headaches as arising from a psychiatric disorder known as somatoform, which he defined as a mental condition that causes the patient to experience physical symptoms out of proportion to any physical insult or ailment. He also noted that she craved the physician-patient interaction, and that she relished the sick role. He repeatedly recommended that she receive psychiatric treatment, which she steadfastly refused. Dr. Mazzeo personally observed no respiratory difficulties, and he did not learn that she had any respiratory complaints until the fourth visit. When asked if the somatization disorder would make Rose more likely to continue with pulmonary complaints beyond those a mentally-unimpaired person would experience, he testified this was likely, but that he would require further eváluation to apply it to her respiratory complaints.

Soon thereafter Figgie moved the court, pursuant to OCGA § 9-11-35, to compel Rose to submit to a psychiatric examination to determine whether her mental condition was causing her pulmonary complaints. Figgie submitted the affidavit of psychiatrist Dr. Davis, who deposed that based on his review of the medical records and depositions, Rose suffered from one or more psychiatric disorders related to the claims asserted in this suit. Figgie also pointed to Rose’s testimony in her interrogatory responses and deposition that she had experienced mental depression since the time of the explosion, and that she was seeking recovery for mental distress. Finding that the mental condition of Rose was in controversy and that good cause existed, the court ordered her to submit to a mental examination by Dr. Davis over two days.

Based on an extensive psychiatric evaluation and a full battery of psychological tests, as well as his trained medical observations of the lack of any pulmonary distress, Dr. Davis, assisted by psychologist Dr. Powell, determined that Rose suffered from a psychiatric clinical disorder of malingering or somatoform and from a psychiatric narcissistic personality disorder with anti-social features and histrionic traits. All of these mental disorders are listed in the Diagnosis and Statistical Manual of Mental Disorders, Fourth Edition. Excerpts of the book were attached to Dr. Davis’ affidavit.

Dr. Davis deposed that because of these disorders (a) Rose was intentionally producing false or grossly exaggerated physical symptoms motivated by financial compensation of the lawsuit, (b) she often exaggerated or manufactured information to overcome feelings of inferiority and to inflate her own self importance, and (c) she frequently took advantage of others to achieve her own ends. He concluded that her physical complaints were psychiatric in nature and not related to the explosion.

Figgie subsequently deposed Rose’s neighbor, who testified that immediately following the explosion Rose told her that she intended to feign a respiratory illness.

Arguing that the psychiatric evidence went solely to her credibility, a matter reserved exclusively for the province of the jury, Rose moved in limine to exclude the testimony of Drs. Davis and Powell. Granting this motion, the court referred to the evidence as “an opinion that essentially says little more than she is a malingerer,” which “has nothing to do with this case.” Figgie appeals this order.

3. (a) “The credibility of a witness is a matter to be determined by the jury. . . .” OCGA § 24-9-80. Georgia does not allow witnesses to opine that a party or victim is lying or telling the truth, for under this statute credibility “is a matter solely within the province of the jury. An expert witness may not testify as to his opinion of the victim’s truthfulness.” (Citations and punctuation omitted.) Campbell v. State, 221 Ga. App. 135, 137 (470 SE2d 524) (1996). See Gorski v. State, 201 Ga. App. 122, 123 (2) (410 SE2d 338) (1991) (psychologist’s opinion that victim’s testimony not credible is inadmissible); Jennette v. State, 197 Ga. App. 580, 581-583 (3) (398 SE2d 734) (1990) (expert testimony about “lying child syndrome” is inadmissible).

Drs. Davis and Powell do not opine that Rose is lying or not credible. Rather, they diagnose her as suffering from recognized psychiatric disorders that have caused her to have or complain of physical symptoms out of proportion to any injuries she may have experienced. These disorders may explain the testimony of other physicians that her respiratory ailments are sporadic and lack an organic basis, and, if linked to the explosion, have continued over a much longer period of time than would normally be expected. This relates directly to the issue of causation. Did the emissions of the exploding fire extinguisher cause the injuries of which plaintiff complains?

Such evidence would also relate to damages. Having indicated that she was suffering from depression as a result of the explosion, Rose made her mental condition relevant. The extent of that depression and of her physical ailments as exacerbated by her psychiatric disorders is relevant in determining the amount of damages. The evidence is admissible pursuant to OCGA § 24-9-67. The court erred in finding the evidence “had nothing to do with this case.”

(b) Rose nevertheless argues that the trial court should not have ordered the psychiatric exam in the first place. Not having appealed from that order or enumerated that order as error, Rose has “waived this issue on appeal.” Wilson v. City of Atlanta, 223 Ga. App. 144, 145, n. 1 (476 SE2d 892) (1996). Furthermore, the trial court did not err in finding that Rose’s mental condition was an issue and that there was good cause to order the psychiatric exam. The testimony of one of Rose’s own treating physicians (Dr. Mazzeo) that Rose suffered from a mental disorder of somatoform that had caused or exacerbated headaches after an earlier auto collision and that might similarly cause or exacerbate her pulmonary ailments, made Rose’s mental condition a relevant issue in the case and constituted substantial grounds for ordering the psychiatric exam. Also, Rose herself testified her mental depression related back to the explosion.

(c) Rose next argues that Dr. Davis’ opinion that Rose is malingering is nothing more than an inadmissible opinion that she is lying. This argument fails for several reasons. First, Dr. Davis testified without contradiction that malingering is a recognized psychiatric clinical disorder. We have previously acknowledged evidence that malingering is a mental condition. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 876 (2) (99 SE2d 370) (1957).

Second, he diagnosed its presence in her and also diagnosed her with a psychiatric narcissistic personality disorder with anti-social features and histrionic traits. Moreover, he has a background in pulmonary diseases but observed no pulmonary distress in Rose.

OCGA § 24-9-67 provides that the “opinions of experts on any question of science, skill, trade, or like questions shall always be admissible.” Even if the testimony goes to the ultimate issue to be decided by the jury, expert opinion “is admissible where the conclusion of the expert is one which jurors would not ordinarily be able, to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). Based on the uncontradicted evidence of record, the extensive diagnoses of the psychiatric disorders at issue and their impact on Rose’s medical symptoms are beyond the ken of average laymen. They explain the cause and extent of the alleged injuries.

We have consistently allowed experts to testify as to malingering. “Whether appellant was feigning injury was a relevant query, and expert testimony relative thereto was properly admitted over a relevancy objection. [Cits.]” Wildstein v. Gray, 146 Ga. App. 222, 223 (2) (246 SE2d 130) (1978). Asserting malingering as a defense in a workers’ compensation action, the employer in David Jordan Logging Co. v. Sales, 203 Ga. App. 410, 411 (2) (416 SE2d 803) (1992), had a doctor testify “he found no physical reason for the claimant’s continued complaints, that some of the claimant’s complaints were due to a hysterical reaction to the injury and that psychological factors could be a cause of his continued complaints.” David Jordan Logging held that the ALJ improperly refused to hear evidence concerning a motive for the malingering.

Decided December 5, 1997

Reconsideration denied December 16, 1997

Calabro & Jennette, Michael M. Calabro, Larry F. Jennette, Jr., for appellant.

Smith, Howard & Ajax, Frederick W. Ajax, Jr., Michael D. St.

Physician testimony as to whether the victim was malingering was also allowed in Drake v. Shurbutt, 129 Ga. App. 754, 755 (1) (201 SE2d 184) (1973); Sinclair Oil Corp. v. Hendrix, 119 Ga. App. 770, 771-772 (2) (168 SE2d 862) (1969); General Gas Corp. v. Whitner, 110 Ga. App. 878, 879 (4) (140 SE2d 227) (1965); Roberson v. Lumber-mens Mut. Cas. Co., 92 Ga. App. 572, 573 (89 SE2d 270) (1955); Tifton Brick &c. Co. v. Meadow, 92 Ga. App. 328, 332-333 (5) (88 SE2d 569) (1955); Daniel v. Ford, Motor Co., 88 Ga. App. 58, 60 (76 SE2d 66) (1953); and Ga. R. &c. Co. v. Howell, 28 Ga. App. 798, 803-804 (7) (113 SE 101) (1922).

Experts may also “express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story.” (Citations and punctuation omitted.) Knight v. State, 207 Ga. App. 846, 847 (1) (429 SE2d 326) (1993). This is not considered a direct opinion as to whether the victim is lying. Hall v. State, 201 Ga. App. 626, 627 (2) (411 SE2d 777) (1991).

The trial court abused its discretion in ruling that the expert testimony as to Rose’s malingering and other psychiatric disorders was irrelevant and inadmissible.

Judgment reversed in Case Nos. A97A1495 and A97A1496.

McMurray, P. J., concurs. Smith, J., concurs in the judgment only.

Amand, James T Brieske, for appellee.

Dawson & Huddleston, Patrick A. Dawson, amicus curiae.

       Figgie’s representative initially claimed that the extinguisher was possibly returned to Figgie and discarded. In a subsequent deposition he testified that upon further review it appeared that Figgie had never received the extinguisher. Rose’s daughter testified that she saw the maintenance man remove the extinguisher, which testimony Rose confirmed.

       See C. A. Assoc. v. Dow Chem. Co., 918 F2d 1485, 1489 (10th Cir. 1990) (“Both federal and state courts routinely permit introduction of substantially similar acts or occurrences in product liability actions to demonstrate the existence of a defect”); McGonigal v. Gearhart Indus., 851 F2d 774, 778 (5th Cir. 1988) (evidence that another grenade had exploded prematurely relevant to show this grenade was negligently manufactured); Nevels v. Ford Motor Co., 439 F2d 251, 258 (5th Cir. 1971) (admitted evidence of other loose steering mechanisms in 1967 Mustangs manufactured at same plant to show manufacturing defect); Rhodes v. Michelin Tire Corp., 542 FSupp. 60, 62 (E.D. Ky. 1982) (“few things could be more relevant in a products action than the occurrence or the non-occurrence of other accidents or failures under similar circumstances”); Gen. Motors Corp. v. Van Marter, 447 S2d 1291, 1293 (Ala. 1984) (evidence of wiring malfunction in similar car admissible); Dura Corp. v. Harned, 703 P2d 396, 410-411 (Alaska 1985) (admitted other exploding air tanks); Bass v. Cincinnati, Inc., 536 NE2d 831, 833 (Ill. App. 1989) (“It is common sense that the higher the number of accidents involving a product the more likely it is that the product is” defective);
        Brown v. North American Mfg. Co., 576 P2d 711, 716 (Mont. 1978) (similar accidents show door defectively designed). But see Ford Motor Co. v. Phelps, 389 SE2d 454, 457 (Va. 1990) (evidence of other 1981 Grenadas that stalled admissible only to show notice and not as corroboration of defect).

       Psychiatric evidence of malingering is also allowed in criminal cases to determine the defendant’s competency or sanity. McMichen v. State, 265 Ga. 598, 606 (9) (b) (458 SE2d 833) (1995); Taylor v. State, 261 Ga. 287, 289 (1) (404 SE2d 255) (1991); Brown v. State, 261 Ga. 66, 69 (2) (a) (401 SE2d 492) (1991).


author: McMurray, Presiding Judge.

text:
    A97A2586.
    FATHER & SON MOVING & STORAGE COMPANY OF GEORGIA, INC. v. PEACHTREE AIRPORT PARK JOINT VENTURE.
    (495 SE2d 87)
   McMurray, Presiding Judge.

This is a dispossessory proceeding concerning office and warehouse space leased by plaintiff Peachtree Airport Park Joint Venture to defendant Father & Son Moving & Storage Company of Georgia, Inc. The lease of the premises signed by both parties includes a provision that “[tjenant shall have no pets or animals in premises without prior written consent of Landlord. . . .” In fact, defendant kept a dog in the premises, locked in the warehouse area, for security purposes. On December 4, 1996, plaintiff’s agent mailed to defendant a letter noting the above lease provision and demanding the removal of the dog. When it was clear that the dog remained on the premises beyond the 30-day default cure period provided under another provision of the lease, plaintiff’s agent elected to terminate defendant’s lease and defendant was notified by a letter from plaintiff’s attorneys sent on January 13, 1997. Defendant refused to surrender possession of the premises and the present action was initiated. Defendant appeals from the state court order granting plaintiff’s motion for summary judgment and ordering the issuance of a writ of possession. Held:

Relying upon evidence that plaintiff, through its agent, verbally gave permission for the dog to be on the premises and had knowledge of the presence of the dog for a period of time without expressing any objection, defendant maintains that the parties mutually departed from the contract provision prohibiting pets in the premises. However, “OCGA § 13-4-4 specifically provides that the effect of a quasi-new agreement resulting from a mutual departure from the terms of a contract is not to extinguish the original contract altogether but merely to suspend those terms departed from until ‘reasonable notice (is) given ... of intention to rely on the exact terms of the agreement.’ See American Iron &c. Co. v. Nat. Cylinder Gas Co., 105 Ga. App. 458, 462 (125 SE2d 106) (1962).” Ga. Income Property Corp. v. Murphy, 182 Ga. App. 101, 103 (1), 104 (354 SE2d 859). Plaintiff having clearly given reasonable notice of its intent to rely on the exact terms of the written lease via the letter of December 4, 1996, even if there was a mutual departure from the pet clause of the lease, it provides no defense to the present action.

Defendant also argues that evidence that another tenant had a dog on the premises suggests a waiver of plaintiff’s ability to enforce the pet clause. However, no citation of authority or argument is provided in support of this proposition and we are aware of none. The state court did not err in granting plaintiff’s motion for summary judgment and in ordering the issuance of a writ of possession.

Decided December 5, 1997

Reconsideration denied December 16, 1997.

McKenney & Froelich, David M. Kupsky, for appellant.

Wiles & Wiles, Noel J. Cotney, Jr., for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Ruffin, Judge.

text:
    A97A1512.
    MORGAN v. THE STATE.
    (495 SE2d 138)
   Ruffin, Judge.

Bartow Morgan was arrested for, inter alia, driving under the influence of alcohol. A subsequent breath test indicated Morgan had an alcohol concentration of greater than .10 grams. The State charged Morgan with criminal violations stemming from his conduct, and the Department of Public Safety (“the Department”) suspended his driver’s license pursuant to OCGA §§ 40-5-67.1 and 40-5-67.2. The Department later reinstated Morgan’s license after he (1) submitted proof that he completed a DUI alcohol or drug use risk reduction program and (2) paid a $200 restoration fee. See OCGA § 40-5-67.2 (a) (1). Morgan’s criminal charges for driving under the influence remained pending, however, and he filed a plea of former jeopardy with the trial court. The trial court denied Morgan’s plea, and he appealed. We affirm.

Morgan argues that the $200 license restoration fee constituted punishment for the same offense for which he is now being criminally prosecuted. According to Morgan, the State’s attempt to punish him twice for the same offense is a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Art. I, Sec. I, Par. XVIII of the Georgia Constitution of 1983.

We recently rejected this same argument in Thompson v. State, 229 Ga. App. 526 (_SE2d_) (1997). For the reasons stated in Thompson, we conclude that Morgan’s payment of the restoration fee did not constitute punishment. Thus, we find no error in the trial court’s denial of Morgan’s plea.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided December 16, 1997

Robert W. Chestney, for appellant.

Kenneth W. Mauldin, Solicitor, Ruth M. Bebko, Assistant Solicitor, for appellee.