text:
    A94A1321.
    GREENE COUNTY HOSPITAL AUTHORITY et al. v. WALDROUP et al.
    (451 SE2d 62)
   Smith, Judge.

This is the second appearance of this case on appeal. Kathy Waldroup, individually and as guardian of Jerry Waldroup, brought an action against Greene County Hospital Authority, Minnie G. Boswell Memorial Hospital, Dr. James E. Southerland, and Nurse Stem-bridge, seeking damages for medical bills, pain and suffering, and loss of consortium arising from alleged medical malpractice, as well as punitive damages. The trial court dismissed the complaint for failure to file appropriate affidavits as required by OCGA § 9-11-9.1. This court affirmed the dismissal with respect to the hospital and the nurse, but allowed Waldroup to proceed against the doctor. Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256 (419 SE2d 36) (1992).

During the pendency of the earlier appeal Jerry Waldroup died. Thereafter, Kathy Waldroup sought and received permission to amend her complaint to reinstate the hospital and nurse as parties defendant. She then filed a “First Amended Complaint” “individually and as administratrix of the estate of Jerry Waldroup” naming the same defendants, including those earlier dismissed by the trial court. This amended complaint again sought damages for medical bills, pain and suffering, loss of consortium, and punitive damages, and it added a claim for the full value of Jerry Waldroup’s life.

The hospital and the nurse answered the amended complaint, raising as a defense the previous dismissal of the complaint against them. Their motion for summary judgment on the basis of collateral estoppel or estoppel by judgment was denied, and their application for interlocutory appeal was granted.

The issue presented here is straightforward, although one of first impression: If a plaintiff brings suit individually and as representative of an injured person, and the complaint is dismissed against some of the parties for failure to file an OCGA § 9-11-9.1 affidavit, may that plaintiff thereafter amend her complaint to add a claim for wrongful death arising out of the same incident and reassert her earlier claims against the dismissed parties as administrator of the estate? We hold that she may not.

In the majority of states “a judgment for or against the decedent in an action for his injuries commenced during his lifetime, or the compromise and release of such an action, will operate as a bar to any subsequent suit founded upon his death. The wrongful death action for the benefit of survivors is, like other actions based on injuries to others, derivative in nature, arising out of and dependent upon the wrong done to the injured person and thus barred when his claim would be barred.” W. P. Keeton et al., Prosser & Keeton on the Law of Torts, § 127, p. 955 (5th ed. 1984).

The existing Georgia law governing res judicata and collateral estoppel supports adoption of this majority rule. Collateral estoppel and res judicata are related but distinct concepts. “Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.” (Citations and punctuation omitted.) Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, P. C., 214 Ga. App. 193, 194 (447 SE2d 101) (1994).

1. With respect to the cause of action for wrongful death asserted by Waldroup in the amended complaint, the doctrine of collateral estoppel applies. Under this theory, the earlier decision bars further action if the same issues were litigated in the previous action by the parties or those in privity-with the parties, though upon a different cause of action. Smith v. Wood, 115 Ga. App. 265, 266-267 (154 SE2d 646) (1967). The issues in the prior action must have been actually litigated and decided, and they must have been necessary to the prior decision. Boozer v. Higdon, 252 Ga. 276, 278 (1) (313 SE2d 100) (1984).

Here, the amended complaint addresses the same issues, although stating a different cause of action. All Waldroup’s claims arise out of the acts performed by the doctor, nurse and hospital on May 5, 1988, and allegedly constituting malpractice on Mr. Waldroup. The amended complaint repeats the factual allegations of the original complaint almost verbatim. Because of the derivative nature of the wrongful death action, the identity of subject matter is clear.

The central issue litigated on the earlier appeal was whether Waldroup’s affidavits were adequate to state a claim under OCGA § 9-11-9.1. The parties fully litigated this issue in the first phase of this action, and the trial court determined that Waldroup failed to fulfill the requirements of OCGA § 9-11-9.1 and dismissed the complaint for failure to state a claim for medical malpractice. This court affirmed the trial court’s dismissal of the complaint for failure to state a claim against the hospital and the nurse, thus concluding the action against them on the basis of that ruling. “[F]or the judgment in the former decision ... to be conclusive, it must have been based not merely on purely technical grounds, but in part on the merits where under the pleadings they were or could have been involved.” Oxendine v. Elliott, 170 Ga. App. 422, 430 (317 SE2d 555) (1984).

A dismissal for failure to file an affidavit under OCGA § 9-11-9.1 is a final adjudication on the merits. That Code section itself provides: “if a plaintiff fails to file an affidavit as required by this Code section . . . such complaint is subject to dismissal for failure to state a claim.” OCGA § 9-11-9.1 (e). It cannot be renewed or amended without a judicial determination that the affidavit was available but not filed due to mistake. OCGA § 9-11-9.1 (e), (f). The Georgia Supreme Court has held that “[a] complaint is subject to dismissal for failure to state a claim when the plaintiff fails to file an expert affidavit as required. [Cit.] A dismissal for failure to state a claim is a dismissal on the merits. [Cit.]” Lutz v. Foran, 262 Ga. 819, 824 (4) (427 SE2d 248) (1993).

Waldroup contends that issues of negligence must be reached and passed upon by the court for collateral estoppel to apply. Although the allegations of Waldroup’s first complaint were not tried before a jury, this is not necessary for an issue to be “litigated and decided” for purposes of collateral estoppel. The trial court determined that Waldroup had failed to state a claim for medical malpractice, and that decision was affirmed by this court. An analogy exists predating the Civil Practice Act: “ ‘In order that a judgment or decree should be on the merits, it is not necessary that the litigation should be determined on the merits, in the moral or abstract sense of these words. It is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases. ... A finding against a party . . . that his cause of action as shown by him, is barred by the statute of limitations or by laches is a decision upon the merits, concluding the right of action.’ [Cits.]” Gamble v. Gamble, 204 Ga. 82, 88-89 (1) (48 SE2d 540) (1948). The same may be said of a final disposition based on other affirmative defenses, including failure to state a claim, of issues that would have been otherwise litigated. Such dispositions are nevertheless “litigated and decided” by the trial court. Thus, Waldroup’s contention that a dismissal under OCGA § 9-11-9.1 is “upon purely technical grounds” must fail.

2. With respect to the causes of action alleged by Waldroup against the hospital and the nurse common to both the original and amended complaints, the doctrine of res judicata applies. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40. The test is similar to that for collateral estoppel, requiring three elements: “(1) identity of the parties, including their privies; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction.” (Citations and punctuation omitted.) McIver v. Jones, 209 Ga. App. 670, 672 (434 SE2d 504) (1993). The claims raised in the original complaint have been adjudicated and affirmed on appeal, thus binding the trial court in all subsequent proceedings. See OCGA § 9-11-60 (h). With respect to the claims asserted in the original complaint and again in the amended complaint, the earlier ruling of this court is res judicata and the law of the case as between the same parties.

3. Finally, we must consider whether the requirement of privity is fulfilled, making the plea of res judicata or collateral estoppel available against Waldroup’s amended complaint. See Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852, 853 (399 SE2d 708) (1990), aff’d sub nom. Ridco Exterminating Co. v. Stiltjes, 261 Ga. 697 (409 SE2d 847) (1991). In the first complaint, Waldroup brought the action both individually, for loss of consortium, and in a representative capacity as guardian on behalf of Mr. Waldroup, for medical and other expenses and pain and suffering. In her amended complaint, Waldroup sued individually for consortium and wrongful death, see OCGA § 51-4-2, and in a representative capacity as administratrix of Mr. Waldroup for medical and other expenses and for pain and suffering. See Smith v. Mem. Med. Ctr., 208 Ga. App. 26, 27 (1) (430 SE2d 57) (1993).

Decided October 26, 1994

Reconsideration denied November 28, 1994

Lokey & Bowden, Malcolm Smith, for appellants.

Kilpatrick & Cody, Alan R. Perry, Jr., John F. Beasley, Jr., Matthew H. Patton, Blasingame, Burch, Garrard & Bryant, Gary G. Blasingame, H. Samuel Atkins, Jr., for appellees.

While we held in Stiltjes that a plaintiff in a fiduciary capacity was a legally different person from the same plaintiff in her individual capacity, that holding is not dispositive here. In Stiltjes the plaintiff brought an earlier suit in an individual capacity only, then brought a second suit in a representative capacity only. Here, Waldroup appeared throughout this action in both her individual and representative capacities, acting as representative for the same individual at all times before and after his death. “ ‘Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity is found to exist, all are alike concluded and bound by the judgment.’ [Cit.]” Smith v. Wood at 269 (4). Throughout this action Waldroup appeared both in her individual capacity and as the representative of Mr. Waldroup. She fulfilled the same function both as guardian of Mr. Waldroup and as administrator of his estate, representing one who was unable to act as a party because of disability or death. In both instances, her interest was identical: pursuit of Mr. Waldroup’s claims arising out of the alleged malpractice. Amendment of the complaint did not serve to create a separate legal identity and destroy privity.

We conclude that the identity of parties is complete, the principles of res judicata and collateral estoppel apply, and Waldroup’s amended complaint reviving her claims against the hospital and the nurse is barred by the litigation and dismissal of her original complaint.

Judgment reversed.

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


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A94A1418.
    In re HASTY.
    (450 SE2d 848)
   Pope, Chief Judge.

Attorney Jason R. Hasty was appointed to represent indigent defendant Perry Rhames. At the arraignment held on November 12, 1993, Rhames pled not guilty. The case was subsequently placed on the trial calendar for January 24, 1994. It is undisputed that Hasty received timely notice of the trial calendar and he in fact appeared at a preliminary calendar call on January 5, 1994.

On January 24, 1994, Hasty appeared at the regular calendar call and announced not ready. At the same time he filed numerous motions, including a motion for a continuance. On January 25, 1994, the trial court denied the motion for continuance and held a hearing with regard to the other motions. At the conclusion of the hearing, it is undisputed that the trial judge specifically asked Hasty whether there were any negotiations underway with the State that might lead to Rhames changing his plea to guilty. In response to this question Hasty said that no negotiations were underway and that the case would be tried. According to the trial judge, the district attorney agreed that no negotiations were underway but expressed concern that Hasty’s client might change his plea before the trial began. In response to this, Hasty again denied that there would be a change in his client’s plea. The judge informed Hasty that jurors would be summoned the following day, January 26, specifically for his defendant’s trial and that no back-up cases would be called. Moreover, the judge informed Hasty that he should be present and ready for trial at 8:30 a.m.

According to Hasty, he continued to attempt to prepare for trial during the night of January 25, 1994. On the morning of the trial, however, it is undisputed that Hasty advised Rhames that he should consider changing his plea. At 8:30 a.m., before the case had been called and jury selection started, Hasty told the judge and the district attorney that his client wanted to change his plea to guilty, even though it is undisputed that there had been no negotiations with or recommendation from the district attorney. The trial judge accepted Rhames’ guilty plea and subsequently asked Rhames at what point he had begun to consider changing his plea. Rhames told the court that he had discussed pleading guilty with Hasty early on in the case. The judge then asked Hasty when the decision to change his client’s plea was made and what prompted it in light of the assurances Hasty had given to the court on the previous day. The record shows that Hasty’s response to this question was vague at best. At the conclusion of the questioning, Hasty was held in criminal contempt and fined $500. Hasty’s request for a full hearing on the matter also was denied.

On appeal, Hasty argues that the trial court erred in finding him in contempt and in failing to allow him a separate hearing. Additionally, Hasty contends that the evidence was insufficient to support a finding of criminal contempt.

Decided November 28, 1994.

Howard & Delaney, Stephen A. Delaney, for appellant.

Garry T. Moss, District Attorney, A. Dee Morris, Assistant District Attorney, for appellee.

Although we do not address the issue of whether the evidence in this case was sufficient to warrant a finding of contempt, we do conclude that Hasty should have been given a separate hearing on the matter. It is true that “[d]irect summary criminal contempt which arises in the presence of the court and tends to scandalize it and hinder or obstruct the orderly processes of the administration of justice, the preservation of order and decorum in the court, etc. is exempt from the due process requirements of notice and hearing. Moody v. State, 131 Ga. App. 355 (206 SE2d 79) (1974).” (Emphasis supplied.) Spruell v. State, 148 Ga. App. 99, 102 (250 SE2d 807) (1978). In this case, however, Hasty’s conduct does not rise to such a level as to necessitate or warrant summary action by the trial court. Hasty’s conduct did not tend to scandalize the trial court or interfere with the preservation of order or decorum in that court. His conduct was not of the type that must be dealt with summarily. Consequently, we believe that the appropriate method of handling this matter is to provide Hasty with a separate hearing.

Additionally, we hold that the trial judge should disqualify himself from officiating over any further proceedings in this matter. “Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including but not limited to instances where the judge is to the judge’s knowledge likely to be a material witness in the proceeding.” (Citation and punctuation omitted.) In re Crane, 253 Ga. 667, 668 (324 SE2d 443) (1985). Here, disqualification is appropriate because it is clear that the trial judge is likely to be called as a material witness at Hasty’s contempt hearing.

In light of the above, we conclude that the trial court erred in denying Hasty a separate hearing on the issue of contempt. Therefore we remand the case back to the trial court for said hearing with the instruction that the hearing be conducted by a judge other than the one who originally presided over this matter.

Judgment reversed and remanded with instruction.

McMurray, P. J., and Smith, J., concur.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A1723.
    BOWDEN et al. v. PRYOR et al.
    (450 SE2d 845)
   Smith, Judge.

Theresa Bowden and Rodney Caldwell brought suit against Roger Pryor and Bill Babrow, doing business as Bill’s Auto Care Unlimited, Inc. Plaintiffs alleged they paid defendants to repair their Toyota Célica, but the vehicle was not repaired and defendants kept their money. Defendants responded that plaintiffs brought the car to them for repairs but never supplied an engine as agreed. After storing the inoperable car for over a year on their lot, defendants contend they settled with plaintiffs for storage charges. Defendants moved for summary judgment, the trial court granted the motion, and plaintiffs appeal.

While the underlying facts are in dispute, they are immaterial because plaintiffs have failed completely to address two affirmative defenses: defendants’ claim of release or accord and satisfaction and defendants’ assertion that the proper defendant was never served because the auto repair business is a corporation. Defendants asserted these defenses in their answer, attaching a copy of the release. They also counterclaimed for abusive litigation. Plaintiffs generally denied the allegations of the counterclaim, but did not address either defense in the pretrial order, and never contended that the release was involuntarily entered into or otherwise invalid.

Defendants moved for summary judgment on both theories, attaching the release and their business’s certificate of incorporation as well as affidavits supporting their defenses. The release, while in-artfully drafted, was prepared by plaintiffs. It clearly states that the sum paid to the mechanics is in satisfaction of storage fees and releases both the corporation and its owners and operators. Defendants correctly pointed out that no assertions of duress, fraud or inadequacy of the release were raised by plaintiffs in the pretrial order or indeed at any time.

In their response to defendants’ motion, plaintiffs simply relied on their pleadings and provided no countervailing evidence with respect to the existence of the corporation. Their perfunctory brief never challenges or even mentions the defense of release and accord and satisfaction. The trial court granted the motion, and plaintiffs appeal.

Plaintiffs never addressed the issues of corporate identity or release on summary judgment, nor have they addressed them in their brief on appeal. They merely cite general law on summary judgment. In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Plaintiffs have utterly failed to refute or even address the merits of defendants’ motion.

Decided November 28, 1994.

Alvin L. Kendall, for appellants.

Michael T. Camp, for appellees.

In response to defendants’ motion for a frivolous appeal penalty in this court, plaintiffs raise for the first time the unsupported contention that the release was obtained under duress. This assertion comes far too late, and it simply highlights plaintiffs’ failure or refusal to join issue on either of the defenses raised in defendants’ answer. Moreover, plaintiffs still have not addressed the issue of corporate identity. Throughout this litigation, plaintiffs ignored the two controlling issues, though they were raised again and again by defendants. Plaintiffs’ conduct has wasted the time and resources of defendants, the trial court, and this court. Whether this is due to carelessness, incompetence, or wilful blindness is impossible to say, but the attitude of plaintiffs and their counsel throughout this litigation should be both deplored and actively discouraged.

Accordingly, frivolous appeal penalties in the amount of $500 are assessed against plaintiffs and their counsel jointly pursuant to Court of Appeals Rule 26 (b).

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I cannot agree that this Court should impose a penalty upon appellants and their attorney. In my view, it has not been established that this appeal is wholly frivolous.


author: Smith, Judge. Pope, Chief Judge,

text:
    A94A1800.
    STEPHENS COUNTY SOIL & WATER CONSERVATION DISTRICT v. WRIGHT BROTHERS CONSTRUCTION COMPANY, INC.
    (451 SE2d 802)
   Smith, Judge.

In September 1991, Ray N. and Constance S. Rice brought suit against Wright Brothers Construction Company, Inc., for the diminution in value of a lake on the Rices’ property allegedly resulting from the company’s highway-building activities upriver. The Stephens County Soil & Water Conservation District (the District) filed a motion to intervene as plaintiff under OCGA § 9-11-24 in November 1993, asserting, among other things, that its interest in an easement involving the same property had been adversely affected. The Rices objected, arguing that the District has rights only in the dam which created the lake and not in the lake itself. The trial court agreed and denied the District’s motion to intervene, but granted its subsequent request for a certificate of immediate review under OCGA § 5-6-34 (b). The District filed its application in this court, which was granted, and this appeal followed. We affirm the trial court, but we must reject its reasoning.

The trial court concluded that the District had no property interest in the lake and that it, for this reason, was precluded from intervening in the Rices’ action against the construction company. We disagree. An easement created by agreement constitutes a property interest in the land subject to the encumbrance. Barton v. Gammell, 143 Ga. App. 291 (238 SE2d 445) (1977). The paramount purpose of the easement at issue was to grant the District “[t]he permanent and perpetual right, privilege, and easement to over-flow flood and store water impounded by flood-retarding structures” on the Rices’ land. It is undisputed that the same accumulations of “dirt, sediment and soil” of which the Rices complain would also adversely impact the ability of the District to store water — to exercise its property interest in the land on which the lake is formed. See generally Harrison v. Ga. Power Co., 255 Ga. 74 (335 SE2d 389) (1985). We agree with the District that the trial court erred in failing to acknowledge its interest in the subject matter of this dispute.

Nevertheless, the trial court properly denied the District’s application to intervene in this action. Even where the applicant claims an interest in the subject matter of the litigation and no current party to the litigation adequately represents that interest, intervention under OCGA § 9-11-24 (a) (2) is proper only if the applicant “is so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest.” The District fails to make any argument or showing whatsoever with respect to the potential of the ultimate disposition of this action to “impair or impede” its prosecution of an independent cause of action against Wright Brothers Construction Company.

Since the District has failed to make this necessary showing, we find no error. We note, however, that whether the trial court erred in failing to join the District in this action for some other reason is not now before us. But see OCGA §§ 9-11-19 (a) (2) (B); 9-11-24 (b) (2). We hold only that the trial court’s denial of the District’s motion, while proper, does not in itself preclude the District from independently pursuing any cause of action it may have against the defendant in this case.

Decided November 28, 1994.

Michael J. Bowers, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Brenda H. Cole, Cathy C. Taylor, Assistant Attorneys General, for appellant.

Adams, Clifton & Sanders, Alton M. Adams, Shivers, Johnson & Wilson, Wayne C. Wilson, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

I agree that the District’s motion to intervene as a matter of right under OCGA § 9-11-24 (a) was properly denied, and I fully concur in the majority opinion. This does not mean, however, that permissive intervention under OCGA § 9-11-24 (b) (2) would not be appropriate, as the District’s claim and the main action clearly have common questions of law and fact. See Branch v. Maxwell, 203 Ga. App. 553 (1) (417 SE2d 176) (1992). Whether or not to grant a motion for intervention brought under OCGA § 9-11-24 (b) (2) is within the discretion of the trial court, but the trial court should keep in mind the objective of the CPA’s liberal joinder rules — to join in all parties needed to resolve the whole matter in one lawsuit if possible. See CMT Invest. Co. v. Automated Graphics &c., 175 Ga. App. 353 (333 SE2d 196) (1985) (Beasley, J., dissenting).


author: Birdsong, Presiding Judge.

text:
    A94A2699.
    WILKEY v. THE STATE.
    (450 SE2d 846)
   Birdsong, Presiding Judge.

Kenneth Ray Wilkey was convicted of aggravated assault, for having brutally beaten his girl friend in a series of incidents occurring over one day. After a pool party at the victim’s mother’s house, Wilkey struck the victim across her face and injured her lip. Wilkey hit the victim again with the back of his hand, causing blood and flesh to fly across the coffee table. After Wilkey left, a woman friend of the victim urged her to leave the house. The victim left with her friend, but they met Wilkey on a roadway at the foot of Lookout Mountain. Wilkey dragged the victim out of her car by the hair of her head and forced her to go with him. In his car, Wilkey punched the victim in the face and bit her on the nose. When he and the victim returned to their home, he pushed her on the bed, choked her, and told her he would rather see her dead than for her to leave. Some of these events may have occurred in Tennessee but most occurred in Georgia.

Decided November 28, 1994.

John R. Emmett, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie S. Bedford, Mary Jane Melton, Assistant District Attorneys, for appellee.

At trial, appellant testified on direct examination that after his arrest, “I was at the Diversion Center in Rome, Georgia, and she would come and see me on visiting days.” On appeal he complains that the trial court, over objection, permitted the prosecution to question him about the reason for his incarceration, which was that he had failed to pay a probation fine. Held:

The trial court did not err in permitting the State to cross-examine appellant about the reason for his incarceration. Assuming appellant did not, merely by volunteering that he had been incarcerated, put his character “in issue” within the meaning of OCGA § 24-9-20 (b) so as to permit rebuttal by the State, he nevertheless raised an issue which may be fully explored by the State on cross-examination. Jones v. State, 257 Ga. 753, 759 (363 SE2d 529). When the defendant has put his character in issue or denied a prior crime, the State is entitled to make “an unbridled attack on the defendant’s character or credibility by introducing evidence of past wrongdoing” (Phillips v. State, 171 Ga. App. 827, 831 (321 SE2d 393) (special concurrence) cited with approval in Jones, supra), but this is not the only instance in which the State may introduce evidence of prior crimes. The State, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness as to any material issue. The State had the right to pursue the specifics of a topic he had introduced. Brown v. State, 204 Ga. App. 523 (420 SE2d 61). Appellant introduced this material issue and the State was entitled to explore it on cross-examination.

Moreover, by this testimony appellant implied that he had not beaten the victim, that she did not hold him responsible for the beatings, or that she bore him no ill will for his beating and remained on good terms with him, to the remarkable point of visiting him when he was jailed. This evidence by him was thus made with the purpose of exonerating himself. He therefore did, arguably, put his character in issue or at least raised a matter to be impeached, and the State was allowed to rebut his testimony under the ruling in Jones, supra. Further, by attempting to benefit from evidence indicating past criminal conduct, he waived any right in this case to object to the State’s right to put that evidence in its true context for the jury. See, similarly, Metheny v. State, 206 Ga. App. 275, 276 (424 SE2d 857).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Blackburn, Judge.

text:
    A94A2716.
    LOMAN v. REVILLE.
    (450 SE2d 707)
   Blackburn, Judge.

Roger Franklin Loman appeals the trial court’s denial of his motion for mistrial. In the underlying personal injury action, during closing arguments, appellee Charles Robert Reville’s counsel referred to the payment of Loman’s medical bills by workers’ compensation insurance. Loman moved for a mistrial, and the trial court gave curative instructions.

1. Loman introduced into evidence medical bills which indicated that his insurance company’s name was shown as “workers’ compensation.” After the close of evidence, during Reville’s closing argument, his counsel pointed out the reference to workers’ compensation and argued that workers’ compensation insurance paid Loman’s medical bills. Loman objected and moved for a mistrial.

The trial court instructed the jury as follows: “Under no circumstances would you consider in this case whether the medical bills of the plaintiff in this case have or have not been paid. That’s no question for your consideration. It may be that during the course of your deliberations hereafter you may determine what they are, and the Court would instruct you further about that. But at this juncture, you are only concerned with — not whether these medical bills have or have not been paid — the only thing that you would consider would be were they needful and necessary expenses following the alleged injury of the plaintiff in this case. Now, as I say, disregard and disabuse your mind altogether of the last remarks which [Reville’s counsel] made.” Thereafter, during his own closing argument, Loman’s counsel brought up Reville’s counsel’s objectionable argument and attempted to explain the reference to workers’ compensation on Loman’s medical bills.

“In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial.” (Citations and punctuation omitted.) McKin v. Gilbert, 208 Ga. App. 788, 790 (432 SE2d 233) (1993). However, the objectionable evidence was introduced by Loman, the party which now claims error. Only after the objectionable evidence was admitted did Reville’s counsel refer to it. “Thus, a party cannot be heard to complain of a verdict which was based upon incompetent evidence introduced by himself. A party cannot claim error because of a reference to insurance where he himself committed or invited the error, as where reference is made on direct examination, or cross-examination, of witnesses. One cannot complain of a judgment, order or ruling that his own procedure or conduct procured or aided in causing, nor can he be heard to complain of or question a judgment which he invokes.” (Citations and punctuation omitted.) Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988).

Decided November 28, 1994.

Capers, Dunbar, Sanders, Bruckner & Clarke, E. Freddie Sanders, for appellant.

A. Rowland Dye, for appellee.

2. Loman contends that the trial court’s curative instructions were inadequate. Loman did not object to the curative instruction given, nor did he object to the trial court’s failure to rebuke Reville’s counsel. Furthermore, Loman reiterated the issue during his closing argument. In Ga. Power Co. v. Green, 158 Ga. App. 717 (2) (282 SE2d 145) (1981), we determined that by repeating and expanding upon the objectionable remark, counsel impliedly waived any previous objection.

Based on the foregoing, we find that the trial court did not abuse its discretion in denying Loman’s motion for mistrial.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1081.
    WMI URBAN SERVICES, INC. v. ERWIN et al.
    (450 SE2d 830)
   Pope, Chief Judge.

Plaintiffs Alex and Roxanna Erwin purchased a home in the summer of 1988. They required a termite inspection report prior to purchase, and the seller hired defendant WMI Urban Services, Inc., doing business in Atlanta as Tindol/Getz, to inspect the premises and provide the report. The Tindol/Getz report stated that there had been termite infestation in the past, but that there was no visible evidence of damage to the home. In December 1988, plaintiffs discovered that although there was no active infestation, their home had been severely and extensively damaged by the earlier infestation of termites. Support jacks had been installed to shore up the structure, and the damage to the wooden beams had been concealed with black paint. Having failed to find this damage, Tindol/Getz was willing to make limited repairs to the basement of the home and hired a contractor to do so. In January 1989 plaintiffs learned that the upper levels of the house were damaged as well, however; and Tindol/Getz refused to meet plaintiffs’ demand that it pay for the extensive repairs necessary throughout the house. Plaintiffs then brought this action, and the jury awarded them $93,500 in general damages and $11,500 for costs of litigation. Tindol/Getz appeals from the trial court’s denial of its motions for directed verdict and j.n.o.v.

1. In three enumerations of error, defendant challenges the sufficiency of plaintiffs’ proof of damages. Viewing the evidence in a light favorable to the verdict, it appears that T. Z. Chastain, an expert engineer specializing in residential home inspections and structural problems, testified that when he and his staff inspected the home in January 1989, there were approximately 140 linear feet of damaged wood in the basement. Furthermore, there was damage in the common wall between the porch and dining room and the bedroom and closet on the upper floors. In his opinion, the damage was so extensive that plaintiffs should just clear the ground and start over. Charles F. Logan, an expert in remodeling and cost estimating, testified that based on his estimate in November 1989, the work plaintiffs needed would cost at least $56,511, possibly more. He also testified that the work would take from 12 to 16 weeks, and that plaintiffs would have to remove themselves and all their furniture and belongings for the entire period.

This is sufficient evidence to support an award, of damages. See Shepherd v. Aaron Rents, 208 Ga. App. 139 (3) (430 SE2d 67) (1993). Contrary to Tindol/Getz’ assertion, an expert may state his opinion and the facts on which that opinion is based, even if the opinion is based in part on hearsay. See King v. Browning, 246 Ga. 46 (1) (268 SE2d 653) (1980). Nor was the evidence rendered too speculative because Logan’s cost estimate was given approximately ten months after the full extent of the damage was discovered. The trial court properly instructed the jury that the relevant time for measuring damages was the time of discovery, and the jury was able to base an estimate of what the repairs would have cost then on what the expert said they would cost less than a year later, particularly since the evidence was that there was no active infestation so the damage was not getting worse during that time. Compare Kieffer v. Linton, 196 Ga. App. 327 (2) (396 SE2d 13) (1990) (where damage was discovered in June 1987 and the estimate was from 1989, at least 18 months later, plaintiff needed to present evidence of how much construction labor costs changed during intervening period).

2. Defendant next argues that it should at least have been granted a directed verdict as to plaintiffs’ claim for attorney fees and costs under OCGA § 13-6-11, as there was no evidence of bad faith or stubborn litigiousness on its part. A jury award of attorney fees and costs under OCGA § 13-6-11 will be affirmed if there is any evidence from which the jury could have concluded that there was no bona fide controversy. Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990). Here, there was evidence that Tindol/ Getz knew of the prior infestation and damage, yet the Tindol/Getz inspector failed to probe the painted wood. Given the evidence of the extensiveness and severity of the damage, the jury could have found that there was no question that a termite inspector should have found it, even if the damaged wood was painted to conceal the damage from casual view. And even though Tindol/Getz made some initial efforts to accommodate plaintiffs with respect to their basement, there was evidence that it refused to repair the upper floors even though the damage to those floors was clearly termite related. Accordingly, there is evidence from which the jury could conclude there was no bona fide controversy, and the trial court did not err in denying Tindol/Getz’ motion for directed verdict on this issue.

Decided October 28, 1994

Reconsideration denied November 29, 1994

Swift, Currie, McGhee & Hiers, L. Bruce Hedrick, Jr., for appellant.

Peebles & Newman, Charles F. Peebles, George H. Connell, Jr., Joe P. Redd, for appellees.

3. Defendant also contends the jury should not have been charged on fraud, because the plaintiff in a fraudulent concealment action must show that the alleged defrauder had actual (not merely constructive) knowledge of the concealed fact, and there was no evidence that the termite inspector actually knew the house was damaged when he falsely stated that it was not. See Butler v. Terminix Intl., 175 Ga. App. 816 (2) (334 SE2d 865) (1985). The individual inspector is not the defendant here, however; Tindol/Getz is. Though the inspector signed the report, the report was the product and statement of Tindol/Getz; and there was evidence that Tindol/Getz had documents showing that the house had termite damage in 1984, and these documents did not show that the damage was repaired. Cf. Wolfe v. Chrysler Corp., 734 F2d 701 (11th Cir. 1984) (applying Georgia law, Eleventh Circuit held that for purposes of scienter in fraud action, corporation is charged with knowledge of information stored in its computer). Thus, a jury could have found defendant Tindol/ Getz committed fraud, and the trial court did not err in its charge.

4. We have considered Tindol/Getz’ remaining enumerations of error and find them to be without merit.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Getz, Inc., Tindol/Getz’ predecessor, had treated the home since 1965, and Tindol/Getz had the file on the home.


author: Johnson, Judge.

text:
    A94A1248.
    MOCLAIRE v. THE STATE. ENDRES v. THE STATE.
    A94A1249.
    (451 SE2d 68)
   Johnson, Judge.

The state prosecuted William Moclaire and Troy Endres together on a multiple count indictment charging them with participating in a crime ring involving several law enforcement officers and others. The Fulton County jury found Endres guilty of two counts of armed robbery and Moclaire guilty of two counts of burglary, three counts of armed robbery, two counts of aggravated assault and two counts of possession of a firearm during the commission of a felony. Moclaire and Endres jointly appeal from their convictions.

1. Moclaire and Endres contend the court erred in denying their extraordinary motion for a new trial because the state failed to disclose the results of a prosecution witness’ polygraph examination and statements made by the witness after the polygraph in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). “The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and material either to guilt or punishment. . . . Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. Such evidence is evidence favorable to an accused, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.” (Citations and punctuation omitted.) Brooks v. State, 182 Ga. App. 144, 145 (1) (355 SE2d 435) (1987). Contrary to the argument of Moclaire and Endres, the polygraph results and the witness’ statements after the polygraph are not exculpatory. Black’s Law Dictionary defines exculpatory as clearing or tending to clear from alleged fault or guilt; excusing. Houston v. State, 187 Ga. App. 335, 338 (3) (370 SE2d 178) (1988). Here, the polygraph results and witness statements in no way clear or excuse Moclaire and Endres from guilt; rather, the evidence shows simply the probability that the witness, who was indicted along with Moclaire and Endres, committed crimes other than those which he admitted and did not reveal the identities of all the crime-ring participants. This evidence is, at best, non-inculpatory of Moclaire and Endres, whom the witness had previously identified as crime-ring participants, in that it does not again mention them by name. See Whatley v. State, 197 Ga. App. 489, 490 (3) (398 SE2d 807) (1990).

Despite their argument to the contrary, Moclaire and Endres could not have used the polygraph results as impeachment evidence because they did not stipulate with the state that the results would be admissible at trial. “[W]here the defendant and the State did not stipulate that the results of a polygraph test taken by a witness would be admissible at trial, questioning the witness regarding those test results is impermissible because a stipulation is a prerequisite for the admissibility of such evidence.” (Citations and punctuation omitted.) Walker v. State, 264 Ga. 79, 80 (2) (440 SE2d 637) (1994); Bragg v. State, 175 Ga. App. 640, 644 (2) (334 SE2d 184) (1985). Moclaire and Endres have also made no showing as to how the witness is impeached by the statements he made after the polygraph. Any other evidence concerning the unstipulated polygraph test was also non-probative and inadmissible. See Allen v. State, 210 Ga. App. 447, 449 (3) (436 SE2d 559) (1993). Moreover, we find no merit in the appellants’ contention that the results of the polygraph examination could have potentially led to the discovery of exculpatory information. See Jefferson v. State, 159 Ga. App. 740, 742 (2) (285 SE2d 213) (1981).

Not only have Moclaire and Endres failed to show the polygraph results and witness statements were favorable to them as exculpatory or impeachment evidence, but they have also failed to show the evidence is material to their guilt or sentencing. “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citation and punctuation omitted.) Rogers v. State, 257 Ga. 590, 592 (3) (361 SE2d 814) (1987). “ ‘The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’ [Cits.]” Belins v. State, 210 Ga. App. 259, 260 (2) (435 SE2d 675) (1993). “[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” (Citations and punctuation omitted.) Houston v. State, supra at 339 (3). Considering the polygraph evidence and witness statements in the context of the entire record, we conclude there is no reasonable probability that the result of the instant proceeding would have been different if the evidence had been given to Moclaire and Endres. Because the omitted evidence does not undermine confidence in the outcome of the trial, the trial court was justified in denying the extraordinary motion for a new trial. See Cato v. State, 195 Ga. App. 619, 620 (1) (394 SE2d 413) (1990); Benefield v. State, 140 Ga. App. 727, 733-736 (8) (232 SE2d 89) (1976).

2. Moclaire and Endres claim the court erred in refusing to reopen the evidence after both they and the state rested. “It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion.” (Citations and punctuation omitted.) Oswell v. State, 208 Ga. App. 883, 884 (2) (432 SE2d 586) (1993). Moclaire and Endres requested that the court allow them to present an additional witness who purportedly would have corroborated the testimony of a prior witness. The court did not abuse its discretion in refusing to reopen the evidence for testimony which was cumulative of prior evidence and which Moclaire and Endres could have presented in their case-in-chief. See Brown v. State, 188 Ga. App. 282, 283 (372 SE2d 838) (1988); Killens v. State, 184 Ga. App. 717, 721 (5) (362 SE2d 425) (1987); Pope v. State, 178 Ga. App. 148, 149 (1) (342 SE2d 330) (1986).

3. Moclaire and Endres assert the court erred in not allowing them to recall a prosecution witness to cross-examine him about criminal charges pending against him in Cobb County. The federal constitution guarantees the defendant in a criminal trial the specific right to cross-examine a key state witness about criminal charges pending against the witness. Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982). See also Owens v. State, 251 Ga. 313, 314-317 (1) (305 SE2d 102) (1983). Assuming, without deciding, that the witness in the instant case was a key prosecution witness and that the court erred in refusing to allow the cross-examination, the error was harmless beyond a reasonable doubt because the strength of the state’s case was overwhelming and the witness’ testimony merely corroborated other evidence. See Byrd v. State, 262 Ga. 426, 427-428 (2) (420 SE2d 748) (1992).

4. Moclaire and Endres argue the court erred in ruling that a newspaper reporter could not be compelled to testify to impeach state witness James Batsel. This argument is without merit.

Batsel’s sister purportedly told the reporter about statements Batsel had made concerning the crime ring. Moclaire and Endres attempted to have the sister testify to impeach Batsel, claiming the statements she attributes to Batsel contradict his trial testimony. When Moclaire and Endres were unable to find the sister, they sought to compel the reporter’s testimony about what the sister purportedly told the reporter Batsel had said. The trial court refused to compel the testimony, ruling it is protected by the reporter’s qualified privilege under OCGA § 24-9-30 and is hearsay.

We note the sister’s testimony about any material prior inconsistent statements made by Batsel would not have been hearsay, but would have been admissible both to impeach Batsel and as substantive evidence. See Sprouse v. State, 250 Ga. 174, 176 (296 SE2d 584) (1982). Likewise, if the sister had testified and denied telling the reporter about alleged material statements made by Batsel, the reporter’s claims to the contrary would have been appropriate to impeach the sister and as substantive evidence. See Jackson v. State, 258 Ga. 810, 811 (3) (375 SE2d 454) (1989). Under those circumstances, whether the reporter’s information is protected by the qualified privilege of OCGA § 24-9-30 would be a pertinent issue. Under the circumstances of the instant case, however, pretermitting that issue is the trial court’s correct ruling that the reporter’s proffered testimony is inadmissible hearsay.

“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of "other persons.” OCGA § 24-3-1 (a). Here, the reporter’s proffered testimony does not derive its value solely from the reporter’s credibility but rests mainly on the veracity and competency of Batsel’s missing sister. Contrary to the claim of Moclaire and Endres in the trial court that they offered the reporter’s testimony merely to show that Batsel made the statements to his sister, they actually offered the reporter’s testimony for the truth of the matter asserted therein; i.e., to prove that Batsel’s sister did in fact tell the reporter about statements allegedly made by Batsel. Because the testimony was offered for the truth of the matter asserted therein, it is inadmissible hearsay. Compare Gibby v. State, 213 Ga. App. 20, 22 (2) (b), (c) (443 SE2d 852) (1994). Thus, regardless of whether the reporter’s information is privileged, the trial court did not err in disallowing the reporter’s testimony.

5. Moclaire and Endres complain the court erred in refusing to allow them to impeach state witness Mark McKenna with testimony from McKenna’s attorney regarding communications made to the attorney by McKenna about his involvement in the crime ring. Moclaire and Endres argue the attorney-client privilege is inapplicable to the communications because the attorney discussed them with the media and in another court. “[Communications made by a client to an attorney for the purpose of being imparted by him to others do not fall within the inhibitions of the law that render an attorney as a witness incompetent to testify to statements or disclosures made to him by his client.” (Citations and punctuation omitted.) Shelton v. State, 206 Ga. App. 579, 580 (426 SE2d 69) (1992). In the instant case, there is no evidence that McKenna made the communications to his attorney for the purpose of having the attorney impart them to others. Compare Brenneman v. State, 200 Ga. App. 111, 114 (2) (407 SE2d 93) (1991). The mere fact that the attorney discussed the communications with others, without evidence that McKenna authorized those discussions, does not prove that McKenna waived the attorney-client privilege. “[I]t is axiomatic that the privilege belongs to the client, not the attorney [cit.].” Peterson v. Baumwell, 202 Ga. App. 283, 285 (2) (414 SE2d 278) (1991). Because McKenna has not waived the privilege, which was properly invoked by the attorney in this case, the trial court correctly ruled the communications are expressly protected by the attorney-client privilege and the attorney could not be compelled to testify. See OCGA §§ 24-9-24; 24-9-25; Womack v. State, 260 Ga. 305, 306-307 (2) (393 SE2d 232) (1990); Williams v. State, 258 Ga. 281, 284-285 (5) (368 SE2d 742) (1988); Amwest Surety Ins. Co. v. Interstate Constr. Co., 212 Ga. App. 590, 592 (442 SE2d 772) (1994).

6. Endres claims the court erred in denying his renewed motion to suppress evidence. The court initially granted Endres’ motion to suppress, but when the state indicated it had filed a notice of appeal from the court’s ruling, Endres withdrew the motion in order to avoid a delay of his trial. Several days after the withdrawal, Endres’ counsel renewed the motion to suppress, claiming he had not received a copy of the state’s notice of appeal. The prosecutor contradicted Endres’ counsel, stating she had in fact mailed a copy of the notice to him and spoken to Endres’ other attorney the day the notice was filed. The court denied Endres’ renewed motion to suppress.

Endres asserts the state did not actually file a notice of appeal and thus the prosecutor’s averment to the contrary was a misrepresentation that amounts to prosecutorial misconduct because it goaded Endres into withdrawing his motion to suppress. “A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority.” Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993). The only evidence Endres cites in support of his assertion that the state did not file a notice of appeal is the page of the transcript at which his counsel states he did not receive a copy of the notice from the state and a portion of the record which does not contain the notice of appeal. This evidence is not dispositive as to whether the state actually filed a notice of appeal, especially in light of the prosecutor’s statement in her place to the trial court that the state did file the notice. Because it is unclear from the record before us whether the state filed a notice of appeal, Endres has not met his burden of proving by the record that the prosecutor made a misrepresentation of fact. See Carroll v. State, 208 Ga. App. 316, 318 (3) (430 SE2d 649) (1993).

Moreover, even if we assume the prosecutor was mistaken in stating that a notice of appeal had actually been filed, Endres has not shown the prosecutor intended the misstatement to goad him into withdrawing the motion to suppress. “The standard is the intent of the prosecutor in connection with the misconduct. . . . Intent is a question of fact for the court to resolve. . . . [T]he facts must warrant the conclusion that there was such an instigative intention.” (Citations and punctuation omitted.) Williams v. State, 207 Ga. App. 124, 125 (427 SE2d 59) (1993). The trial court in this case heard the prosecutor’s explanation regarding the state’s intention to appeal from the grant of Endres’ motion to suppress and obviously found that the prosecutor had no instigative intention to goad Endres into withdrawing his motion to suppress. Because Endres has failed to prove that the prosecutor’s statement rises to the level of prosecutorial misconduct, we will not disturb the court’s finding.

7. Moclaire and Endres contend the court erred in admitting several pieces of irrelevant evidence. “Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. Furthermore, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citations and punctuation omitted.) Moss v. State, 206 Ga. App. 310 (1) (425 SE2d 386) (1992). Here, the court admitted a copy of Moclaire’s birth certificate from New Jersey. The state claims the birth certificate is relevant to the issue of Moclaire’s identification as a crime-ring participant because there was testimony that one of the participants had a New Jersey accent. Although the relevance of the birth certificate is doubtful, we cannot say the court abused its discretion in admitting it. “Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” (Citations and punctuation omitted.) Jones v. State, 202 Ga. App. 642, 644 (5) (415 SE2d 64) (1992).

Nor did the court abuse its discretion in admitting a photograph of items belonging to an unindicted co-conspirator and items seized from other co-conspirators. Those items may not have been used by Moclaire or Endres, but they were identified as instrumentalities used in crimes in which the appellants were implicated. The items were therefore relevant to show that the crimes did in fact occur and to demonstrate how they were perpetrated. See Moss v. State, supra. “Further, applying the high probability test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), we find that even if error had occurred it would have been harmless.” Watkins v. State, 207 Ga. App. 766, 772 (4) (430 SE2d 105) (1993).

8. Moclaire claims the court erred in giving him consecutive sentences for his possession of a firearm during the commission of a felony and armed robbery convictions. He argues those two offenses merge because they involve the same firearm. This argument has previously been decided adversely to Moclaire. See Wiley v. State, 250 Ga. 343, 351-352 (6) (296 SE2d 714) (1982); Kennedy v. State, 195 Ga. App. 795 (1) (395 SE2d 270) (1990).

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.

Decided November 3, 1994

Reconsideration dismissed November 17, 1994 and Reconsideration denied November 29, 1994

Steven H. Sadow, Robert G. Fierer, Colette B. Resnik, for appellants.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Shawn E. Lagrua, Alfred D. Dixon, Assistant District Attorneys, for appellee.


author: Beasley, Presiding Judge.

text:
    A94A1270.
    BEAN et al. v. LANDERS.
    (450 SE2d 699)
   Beasley, Presiding Judge.

Kelly Landers, by next friend Karen Landers, sued James Bean, M.D., his professional corporation, another physician, and the hospital for medical malpractice, alleging that their actions before and during his birth by Caesarean section resulted in brain damage, blindness, and cerebral palsy. The hospital was dismissed prior to trial. After a trial of over two weeks, the jury returned a verdict for defendants, and the court entered judgment on it. Landers moved for new trial, which was granted as to Dr. Bean and his corporation. The other physician was dismissed from the action after the court stated it would not grant the motion as to him. We permitted Bean’s interlocutory appeal.

1. The parties dispute the standard of review. A new trial was granted on a special ground and the court expressly rejected the general grounds specified in OCGA §§ 5-5-20 and 5-5-21 (verdict contrary to evidence and the principles of equity and justice, verdict decidedly and strongly against the weight of the evidence). As to the general grounds, plaintiff claimed that the verdict was contrary to the law, contrary to the evidence, and strongly against the weight of the evidence. The court particularly noted that the evidence was in Dr. Bean’s favor.

The special ground cited by the court is the cumulative effect of the conduct of Bean’s counsel during trial, which the court found to be unprofessional. The court further found that the conduct was harmful and stated that it could not conclude that the harm to plaintiff could be removed by its curative instructions. The court concluded that the plaintiff had not had a fair opportunity to present his case to the jury. At the same time, the court implied that the result “more than likely would have been the same” had the conduct not occurred.

Three specific instances of conduct were cited by the court: violation of the court’s order concerning introduction of information on collateral source benefits, violation of the rule against sequestration, and improper closing argument. The only special grounds asserted by Landers in his motion were the issues concerning sequestration and closing argument; the court itself brought up the issue of collateral source benefits during the hearing on the motion.

“In all motions for a new trial on [non-statutory] grounds . . . the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.” OCGA § 5-5-25. “The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” OCGA § 5-5-50.

Smith v. Telecable of Columbus, 238 Ga. 559, 560 (234 SE2d 24) (1977), dealt with an instance of influence on the jury inside the courtroom during the course of trial, i.e., an instruction given to the jury. The court held that the first grant of a new trial on special grounds involving a question of law is reviewable on appeal. This governs our consideration. Cobb County Kennestone Hosp. Auth. v. Crumbley, 179 Ga. App. 896 (348 SE2d 49) (1986); U. S. Indus. v. Austin, 197 Ga. App. 74 (1) (397 SE2d 469) (1990). Upon remand of Smith to this court, we determined that the trial court had improperly granted a new trial because it had made an error of law in that the evidence did support the court’s original charge to the jury on res ipsa loquitur. Smith v. Telecable of Columbus, 142 Ga. App. 535 (236 SE2d 523) (1977). Thus if the trial court erred as a matter of law in granting a new trial because of the cumulative effect of specified counsel conduct, it must be reversed. U. S. Indus., supra at 75 (2).

In this case, the court determined that counsel’s conduct had deprived Landers of a fair opportunity to present his case. “ ‘ “[M]otions for (new trial) because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge. (Cit.) Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination. (Cits.)” [Cit.]’ [Cit.]” Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (3) (433 SE2d 346) (1993). In that case, the court applied this standard to an out-of-court communication between an attorney and a juror, drawing the standard from Wright v. Satilla Rural Elec. Coop., 179 Ga. App. 230, 231 (1) (345 SE2d 892) (1986), in which a party had communicated out of court with a juror. Both of these cases dealt with influences on a juror outside the courtroom. The court in Wright reiterated the underlying fundamental principle for the rule, that “the purity and integrity of our jury system must be strictly enforced.” Id. at 231. Indeed, it needs no citation of authority to say that it is a hallmark and crucial element of our system of justice.

2. Violation of the motion in limine on collateral source benefits was the first of the three instances of attorney conduct to arise at trial. When information on rehabilitation programs available through public schools was introduced, Landers objected. Although the court’s pre-trial order on the matter was unclear, and the motion itself refers to “collateral source payments,” the court sustained the objection and gave a curative instruction. Landers did not move for a mistrial or object to the instruction.

Nor was this alleged violation specified in Landers’ motion for new trial as a special ground. It was introduced by the court at the hearing, despite the fact that the issue was related to damages and the jury by its verdict found no liability, a prerequisite to a consideration of damages. See U. S. Indus. v. Austin, supra at 75. It was an error of law to base a grant of a new trial on the jury’s knowledge of the collateral source information because it related only to the question of damages, which the jury did not reach, and thus it was not harmful. Id. For this reason it becomes no more harmful when considered cumulatively with the other two instances of attorney conduct which the trial court concluded were not adequately cured by its instructions.

Moreover, since it was not one of Landers’ special grounds, and the hearing was held more than 30 days after judgment, it could not be the basis of a grant of new trial on the court’s own motion under OCGA § 5-5-40 (h).

3. The second instance of attorney conduct concerned the sequestration of witnesses, which was in effect pursuant to OCGA § 24-9-61. It prohibits witnesses from being examined in the presence of each other. O’Kelley v. State, 175 Ga. App. 503, 504 (1) (333 SE2d 838) (1985). Such knowledge is regarded as giving an unfair advantage to the party whose witness hears the other witnesses before the witness testifies and thus can tailor his or her testimony accordingly. However, expert opinion “may be given on the facts as proved by other witnesses.” OCGA § 24-9-67. Nevertheless, Bean had not asked that the expert be excepted from application of the rule. See Bartell v. State, 181 Ga. App. 148 (1) (351 SE2d 495) (1986), regarding the sequestering of an expert witness. In Georgia, the expert is not automatically excepted from the rule because of the view that ordinarily it is not necessary for the expert to hear the testimony of the plaintiff’s witnesses in order to form an opinion; “the proper mode of examination is by hypothetical questions.” Bartell, supra at 149 (1); Simonds v. Conair Corp., 185 Ga. App. 664, 665 (2) (365 SE2d 507) (1988). Excepting the expert from the rule is acceptable. Huskins v. State, 245 Ga. 541 (266 SE2d 163) (1980); Kendrick v. State, 123 Ga. App. 785, 790 (182 SE2d 525) (1971). See, e.g., Morvant v. Constr. Aggregates Corp., 570 F2d 626, 629-630 (6th Cir. 1978), cert. dismissed, 439 U. S. 801 (99 SC 44, 58 LE2d 94) (1978); Mayo v. Tri-Bell Indus., 787 F2d 1007 (5th Cir. 1986); Lapenna v. Upjohn Co., 665 FSupp. 412 (E.D. Pa. 1987).

When Bean’s final expert witness was called, his testimony indicated that the court’s order on sequestration of witnesses had been violated in that Bean’s attorney had discussed with him some of the testimony of one of plaintiff’s expert witnesses (whose deposition he had read), a treating physician, and other witnesses. Landers objected but did not ask for a mistrial. He did, however, ask that the testimony of this witness be stricken. The court did not strike the witness’ testimony, stating that a violation of the rule affects credibility but not admissibility. In consequence, the court gave curative instructions to the jury, admonishing Bean’s attorney and advising that the violation could be considered by the jury in assessing the witness’ credibility. The out-of-court discussion was then explored with the witness on cross-examination before the jury.

OCGA § 24-9-61 provides that “no mere irregularity [in sequestration] shall exclude a witness.” As expressed in McCartney v. McCartney, 217 Ga. 200, 202 (7) (121 SE2d 785) (1961), “the disobedience of an order of sequestration is a mere irregularity, subjecting the offender to punishment for contempt and may affect his credit as a witness, but it does not render the witness incompetent.” See also Intl. &c. Iron Workers, Local 387 v. Moore, 149 Ga. App. 431, 435 (10) (254 SE2d 438) (1979). Thus, the trial court applied the proper legal measure with respect to the sequestered witness’ testimony during trial.

In granting the new trial, the court did not rule that the testimony of the witness would be barred from it, nor would such be a proper course under Georgia law, as demonstrated by McCartney and Moore, supra. Therefore, a new trial would produce no change in this aspect of the evidence before a new jury. In fact, the witness would not only have the benefit of whatever information he may have received about other witnesses’ testimony before his own was given, but he could now review the transcript of the entire first trial.

Reprimanding counsel on the spot and instructing the jury about credibility at that point had at least as profound an effect on the jury as would pointing out to a different jury at some future time that the witness had learned of the testimony of other witnesses before he testified. Another jury in this case would know the same thing that this jury did, and its integrity would be protected by the same measure, i.e., cautionary instructions.

It was an error of law to base a new trial on an issue that had been properly addressed at trial and would not be changed materially on retrial. See Cobb County Kennestone Hosp. Auth. v. Crumbley, supra at 898. Treating the violation in conjunction with other instances of improper conduct gave it no greater force.

4. The third instance underlying the special ground concerned improper argument. Bean’s counsel referred in closing argument to deposition testimony that had not been placed before the jury. A certain physician, Dr. Adler, had treated Landers after birth but was not called to testify at trial by either party.

During Landers’ closing argument, counsel argued that, from the medical records submitted and the testimony of Dr. Adler’s partner, the jury could conclude that Dr. Adler had diagnosed that Landers suffered from perinatal asphyxia as a result of the actions of the medical personnel who treated him before and during birth, including Dr. Bean. The evidence suggesting such an inference was before the jury: Dr. Adler’s partner had identified a visual exhibit as an enlargement of a hospital chart with a notation in Dr. Adler’s handwriting reading “perinatal asphyxia,” the condition Landers contends was caused by Bean’s negligence and produced his injuries.

In her closing arguments, Bean’s counsel countered that Dr. Adler had been deposed by plaintiff at length and stated during deposition that he did not believe Landers suffered birth asphyxia. The deposition was not in evidence. Landers objected, the court sustained the objection, gave a curative instruction, and admonished Bean’s counsel in front of the jury. In making his objection, Landers stated “I’m not asking for a mistrial. We’ve gone two-and-a-half weeks, but I would respectfully ask this Court to admonish [counsel] and to instruct the jury to disregard that comment,” and did not make further request in the matter after the instruction.

Again, the court’s original ruling was proper and its decision did not present any error that it was required to correct by the grant of a new trial. The court did not conclude that this instance of counsel’s conduct alone warranted a new trial. Instead, it concluded that only when taken cumulatively with the other two instances of counsel’s conduct was a new trial warranted.

When the instances of counsel’s behavior arose at trial, the court corrected each in a manner that did not require any further action insofar as the fairness of the trial is concerned. None of the court’s rulings were erroneous, as a matter of law. The court intimated in its order that the result of any new trial would likely be the same and stated in both its order and during the hearing that the weight of the evidence was strongly in Bean’s favor. “[W]hile litigants are entitled to a fair trial, they are not necessarily entitled to a perfect trial.” Ga. Power Co. v. Hendricks, 130 Ga. App. 733, 734 (4) (204 SE2d 465) (1974). The court’s original rulings produced a fair trial, although it may have been imperfect.

It is the role of the courts to “see to it that the jury are kept free from influences which may tend to bias or prejudice their minds for or against the cause of either party they are empaneled to try.” Alabama Great Southern R. Co. v. Brown, 140 Ga. 792, 795 (1) (79 SE 1113) (1913). Here the court took corrective measures to assure that the jury was not prejudiced. By its corrective instructions, the court assured adherence to the rule that “on the trial of cases, no fact should ever go to the jury except through the legally appointed channels.” Johnson v. State, 88 Ga. 606, 608 (1) (15 SE 667) (1891). As said in that case: “It is absolutely indispensable to the fair and proper administration of the law that this plain and just rule should be invariably observed.” Id. at 608 (1). The court fulfilled its duty to protect the integrity of the jury. The court’s original rulings and instructions protected the deliberations and verdict from prejudice as a matter of law. Thus, the court erred in determining that a new trial was authorized.

Our ruling is not to be taken as condoning unprofessional conduct. While such is a serious matter, there are a variety of sanctions available in situations involving it and we note that a motion for sanctions has been made below pursuant to OCGA §§ 15-1-3 and 15-1-4. See Stoner v. Eden, 199 Ga. App. 135, 138 (3) (404 SE2d 283) (1991); Urban Med. Hosp. v. Seay, 179 Ga. App. 874, 877-879 (348 SE2d 315) (1986) (Beasley, J., concurring in part and dissenting in part).

In sum, the verdict was not affected by the first, court-raised instance of the impropriety of counsel introducing inadmissible evidence because the conduct addressed an issue not reached by the jury. Second, a new trial would not cure, any more than did the court’s instructions and admonition, counsel’s discussing plaintiff’s evidence with the witness before his testimony. The effect on the witness’ credibility was made clear to the jury. Third, although the closing argument was improper, the trial court concluded that the properly admitted evidence was in defendant’s favor, and that counsel’s improper argument warranted a new trial only in conjunction with the other two instances. As two of the three instances which occasioned the court’s grant of a new trial are eliminated, the court’s conclusion that the three cumulatively warranted a new trial was erroneous.

Decided August 23, 1994

Reconsideration denied November 29, 1994

Love & Willingham, John A. Gilleland, Kimberly L. Woodland, Banks & Stubbs, Rafe Banks III, Morris, Manning & Martin, Rachel K. Iverson, for appellants.

Johnson & Cooper, Jean E. Johnson, Jr., Lance A. Cooper, for appellee.

5. Bean’s other enumerations of error are moot.

Judgment reversed.

Andrews and Johnson, JJ., concur.

       The jury returned a verdict for both defendants after deliberating for 15 minutes, and their affidavits indicate that none ever voted in favor of plaintiff.

       In an after-trial affidavit, Dr. Adler averred he had not been asked during deposition about the notation on the chart but had made clear that in his opinion Landers did not suffer perinatal or intrauterine asphyxia as a result of obstetrical care or treatment and instead suffered an intracerebral hemorrhage not caused by asphyxia resulting from obstetrical care or treatment.


text:
    A93A2066.
    SHAHEEN & COMPANY v. NATIONSBANK OF GEORGIA.
    (451 SE2d 112)
    Decided November 29, 1994.

      Frederick J. Hanna, Elizabeth C. Whealler, for appellant. Alston & Bird, Bradley L. Cooper, for appellee.
   Birdsong, Presiding Judge.

In NationsBank of Ga. v. Shaheen & Co., 264 Ga. 533 (448 SE2d 688), the Supreme Court reversed the judgment of this Court in Shaheen & Co. v. NationsBank of Ga., 212 Ga. App. 333 (441 SE2d 769). Therefore, our judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    A94A1139.
    In re ADAMS.
    (450 SE2d 851)
   Blackburn, Judge.

The appellant, Bentley C. Adams III, an attorney, appeals from a summary adjudication of direct criminal contempt on January 27, 1994, based upon his conduct in the presence of the trial court at the subject hearing and while representing Stephen Buice, in connection with a DUI and related charges in the State Court of Rockdale County, in an unreported proceeding on January 6, 1994.

The accusation and the “Plea of Guilty: Acknowledgement and Waiver of Rights” forms executed by Buice, Adams, and Dabney Yarborough, the solicitor, reflect that during the January 6, 1994, unreported proceeding before the Honorable William F. Todd, Jr., Buice, through Adams, tendered a plea of guilty to leaving the scene of an accident, with first offender treatment requested, and a nolo contendere plea as to the DUI charge. The separate sentencing form, executed by Judge Todd reflects a guilty plea for Count 1 (DUI), a sentence of six months, with twenty-eight days to serve and the remainder on probation, and a $650 fine; a guilty plea with first offender treatment for Count 3 (leaving the scene of an accident), a sentence of twenty-eight days to serve, concurrent with Count 1, and a $200 fine; and a nolle prosequi order as to Counts 2 and 4.

After learning from the probation officer, following entry of the pleas herein, that there was a conflict between the entries on the plea form and the entries on the sentence form, Buice contacted Adams, who, after discussing the matter with the solicitor’s office, sent a letter to Judge Todd on January 14, 1994, pointing out that Buice had tendered a plea of guilty to leaving the scene of an accident (with first offender treatment) and a plea for a nolo contendere as to the DUI charge. Adams advised Judge Todd that there appeared to be a clerical error present, but that the prosecuting attorney disagreed with his contentions. Adams enclosed a proposed order correcting the record to reflect the disposition of the DUI charge and asked the court to sign same.

A few days later, Adams received a letter, dated January 20, 1994, from Judge Todd’s calendar clerk, notifying him to be in court on January 27, 1994, stating “Your presence [Adams’] is required for a hearing on the Motion to Correct Plea in the above-referenced case.” No such motion had been filed by Adams and the court’s letter contained no reference to a contempt proceeding.

The record before us contains a transcript of the January 27, 1994, hearing. The court, on its own motion, sequestered the witnesses defendant had brought to testify concerning the January 6, 1994, pleas. Adams informed the trial court that, based upon his understanding, the court had accepted his client’s plea of nolo contendere to DUI at the January 6, 1994, call of the case.

The trial court, immediately thereafter, and without calling any witnesses, or introducing any evidence, stated: “Pursuant to the authority in O.C.G.A. 15-1-4 (a) (2), the court is finding you in criminal summary contempt of court. The court will sentence you at the conclusion of these proceedings.”

The trial court later stated that, “Your statement to the Court at the beginning of these proceedings put[s] you in direct criminal contempt of this court, and at that point the Court pronounced that you were in contempt of court and specifically stated the Code Section under 15-1-4, Subsection (a) (2), misbehavior of any officers of the Court in their official transaction, this being an official transaction. Your action constituted contemptuous conduct committed in the actual presence of the Court.”

After finding Adams in contempt, the trial court proceeded to call witnesses for the court, including a deputy clerk, two bailiffs, and the county solicitor, all of whom were present at the January 6, 1994, hearing, and who testified that the trial judge had denied Buice’s request to plead nolo contendere to the DUI charge. The deputy clerk testified that she did not hear the court specifically deny Buice’s request to plead nolo contendere and that she had asked the trial judge if he had accepted the plea, and was informed that the request had been denied. One of the bailiffs testified that he had discussed the case with the trial judge on the morning of January 27, 1994, prior to the court-scheduled hearing.

In any event, the testimony of the State’s witnesses was not considered by the trial court in arriving at its holding, as he had already held Adams in contempt at the time such testimony was given. “[S]ince these events followed the trial court’s announcement of its decision to hold appellant in contempt . , this evidence offers no support to the finding of contempt being appealed.” In re Spruell, 200 Ga. App. 218, 228 (407 SE2d 451) (1991).

The trial court denied both Adams’ oral motion to recuse and his request for time to retain counsel to represent him in the contempt matter. The trial court then allowed Adams to call his sequestered witnesses, but only in mitigation of the contempt punishment. Adams called his witnesses, who were unaware of the nature of the hearing and who had not appeared for the limited purpose allowed by the court. James Rogers, an associate of Adams’ law firm, Buice’s father, and Buice, all testified that the trial judge had accepted Buice’s nolo contendere plea to the DUI charge on January 6, 1994.

At the conclusion of the subject hearing, Adams was fined $500 and sentenced to serve 20 days in jail by the trial court. The trial court placed Adams immediately in police custody, denied his motion for supersedeas and denied him the opportunity to make a telephone call. This court granted the supersedeas motion pursuant to Court of Appeals Rule 50 (c), and Adams’ sentence was stayed pending appellate review.

1. Adams asserts that the trial court erred in failing to recuse himself and in failing to grant appellant a hearing wherein he could be represented by counsel, with notice of the charges, before another judge, and in summarily holding him in contempt.

“On motion for disqualification it is the duty of the judge to pass only on the legal sufficiency of the facts alleged to ascertain whether they support a charge of bias or prejudice. Neither the truth of the allegations nor the good faith of the pleader may be questioned, regardless of the judge’s personal knowledge to the contrary. The test is whether, assuming the truth of the facts alleged, a reasonable person would conclude that a personal as distinguished from a judicial bias exists.” (Citations, punctuation and emphasis omitted.) State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207) (1980). As we discuss infra, the trial judge’s conduct in the present circumstances raises a strong inference that he had become personally embroiled in the controversy. For the reasons hereinafter outlined, this is not a proper case for summary contempt. Therefore, the trial judge’s involvement in the controversy required that another judge conduct the hearing and that Adams’ motion to recuse be granted. See Dowdy v. Palmour, 251 Ga. 135 (304 SE2d 52) (1983).

“During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing. . . . [However,] [wjhere the announcement of punishment is delayed, and where the contumacious conduct was directed toward the judge or where the judge reacted to the contumacious conduct in such [a] manner as to become involved in the controversy, the judge may give the attorney notice of specific charges, but the hearing, including the attorney’s opportunity to be heard, must be conducted by another judge.” (Emphasis supplied.) Dowdy v. Palmour, supra at 141-142.

Implicit within the definition of direct, summary contempt is a finding that the conduct is in the presence of the trial court and results in an interference with the court’s ability to administer justice. Garland v. State, 253 Ga. 789 (325 SE2d 131) (1985). See also Judge Edward H. Johnson and Richard D. Reaves, Contempt of Court in Georgia, 23 Ga. State Bar Journal 66 (Nov. 1986).

While the trial court indicates that Adams’ conduct at the January 27, 1994, hearing was contemptuous, such contention is disputed by the record. A review of the record reveals that it was the court which scheduled the January 27, 1994, hearing, and had Adams repeat his previous written request to have the court correct the sentence entered by the court on January 6, 1994.

Adams’ letter to the trial court did not interfere with the court’s ability to administer justice, but simply gave the court notice of a potential error. Thereafter, the court had the authority to determine if an error had occurred.

Adams had both the right and the duty to seek to correct what he contended was an error on the part of the court in the execution of the sentence in the subject case. His conduct in connection with such correction was appropriate and respectful and could not support a finding of direct, summary, criminal contempt based upon his conduct at the January 27, 1994, hearing.

“An attorney may not be held in contempt of court merely for presenting in good faith a motion which he has a right to make, nor may an attorney be held in contempt merely because, having filed such a motion, he fails to prevail on it. [Cit.]” In re McLarty, 152 Ga. App. 399 (263 SE2d 194) (1979).

It is clear that the trial court, in fact, found Adams in contempt for his alleged fraudulent modification of the accusation form on January 6, 1994, at the unreported calendar call. Based upon his memory and notes made contemporaneously at the January 6, 1994, hearing, the trial judge found that Adams’ “conduct [as] an officer of the court [was] contemptuous in nature, it [was] a fraud perpetrated upon the Court, and, [the trial court stated] Mr. Adams, you are not going to get away with it.” The trial court noted that Buice’s request to plead nolo contendere to DUI had been denied by him at an earlier, unreported pre-trial conference on December 21, 1993.

The trial court made the summary contempt finding without providing Adams with notice of such intent at the time the court scheduled the hearing thereon, and without providing him with an opportunity to be heard, or to be represented by counsel, before summarily finding Adams in “criminal summary contempt of court.”

The trial court’s finding of direct, summary criminal contempt on January 27, 1994,- was based solely upon the events of January 6, 1994. Here, there existed no necessity to eliminate an interference with an on-going trial and no other justification for imposing immediate, summary contempt with the attendant sacrifice of usual due process protections.

There was no necessity for the imposition of summary punishment, herein involved, “ ‘ “to preserve order and enable (the court) to proceed with its business.” (Cit.)’ [Cit.]” McDaniel v. State, 202 Ga. App. 409, 413 (414 SE2d 536) (1992). There was no justification for “ ‘dispensing with the ordinary rudiments of due process.’ ” Thomas v. State, 174 Ga. App. 476, 478 (330 SE2d 412) (1985). Adams was denied the minimum requirements of due process, and his conviction for contempt must be reversed.

Inasmuch as nothing happened on January 27, 1994, prior to the trial court holding Adams in contempt, it is clear that the trial court, upon receipt of Adams’ letter concerning the sentence, planned to hold Adams in contempt and scheduled the January 27, 1994, hearing without notice of its purpose to Adams. The conduct of the trial judge, coupled with the imposition of the maximum sentence, his insistence upon immediate incarceration and his denial of supersedeas and a telephone call to an officer of the court who was present on behalf of his client, raises a strong inference that the trial judge had become personally embroiled in the controversy and that it should have been heard by another judge. This is especially true where there is no record of the subject proceeding and the judge is, in fact, the prosecuting witness. It is difficult to maintain the objectivity required of a fair and impartial judge, when you are deciding whether it is your version or the defendant’s that is correct.

Procedurally, Adams should have been cited for contempt by the trial court, provided with notice of a hearing thereon before another judge who was not involved in the controversy and whose testimony would not be necessary to the State’s case, and provided with an opportunity to be represented by counsel and to call witnesses on his behalf. See Dowdy, supra; Thomas, supra.

2. Adams further argues that the trial court erred in finding him in contempt as the evidence does not support the finding of contempt beyond a reasonable doubt.

The trial court’s factual conclusion was that Adams had wrongfully modified defendant’s accusation form on January 6, 1994. The trial court did not contend that the “Plea of Guilty: Acknowledgement and Waiver of Rights” form, which had been tendered by Adams prior to being handed the accusation, had been altered in any way by Adams. The. plea form supports Adams’ contentions and is signed by the prosecuting attorney. The trial court never reviewed the defendant’s tendered plea document prior to “accepting” defendant’s plea and entering sentence on a separate form.

The alteration of which the trial court complains was on the accusation, which originally showed “Guilty to Ct 1 [D.U.I.], Nolo Contendere to Ct 3 [Leaving the scene].” The accusation was clearly in error in its original form, as there would have been no reason to have a nolo contendere plea on Count 3 when first offender treatment had been granted. It appears that the accusation was changed to read “Nolo Contendere to Ct 1 [D.U.I.]” and “Guilty to Ct 3 [Leaving the scene]” which made it consistent with the previously entered “Plea of Guilty: Acknowledgement and Waiver of Rights” form, which the prosecuting attorney had signed and the trial judge never reviewed. The trial judge never reviewed the accusation form when returned by Adams prior to entering sentence on a separate form.

From the record before us, it appears that any variation between the plea entered and the finding upon which sentence was imposed, resulted largely from the trial court’s failure to review the defendant’s plea as entered, prior to imposing sentence, and from the multiple forms and convoluted process employed by the court in the handling

Decided November 29, 1994.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, James D. Rogers, W. Bruce Maloy, for appellant.

Bentley C. Adams III, pro se.

Cheryl F. Custer, District Attorney, Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellee.

of this matter. Viewing the evidence in the light most favorable to the prosecution, it is insufficient to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. In re Irvin, 254 Ga. 251, 256 (328 SE2d 215) (1985); In re Crane, 253 Ga. 667, 669-670 (324 SE2d 443) (1985); In re Spruell, supra.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A94A1739.
    FULTON COUNTY BOARD OF WORKERS’ COMPENSATION v. ROBINSON.
    (450 SE2d 850)
   Ruffin, Judge.

We granted the Fulton County Board of Workers’ Compensation’s (“Fulton County”) application for discretionary appeal to determine whether the superior court erred in dismissing its appeal from an award of the State Board of Workers’ Compensation for Fulton County’s failure to comply with OCGA § 34-9-105 (b).

Fulton County filed its notice of appeal from an award of the full board on July 19, 1993, and a hearing was scheduled in the superior court for September 10, 1993. At the September 10 hearing, George Robinson moved Judge Thelma Wyatt Cummings to disqualify herself from hearing the appeal. By order dated September 14, 1993, the judge recused herself from the case. The order further provided: “the hearing originally scheduled to be heard on 10 September 1993 will be continued for an additional 90 days, through and including 18 December 1993, to allow for another judge to be assigned to hear the case.”

The case was assigned to Judge Elizabeth Long who also recused herself from consideration of the case by order entered September 21, 1993. Judge Long directed the court administrator to reassign the case in accordance with the court’s procedure.

The case was finally assigned to Judge Josephine Holmes Cook who set the case to be heard on November 1, 1993. Robinson filed a motion to dismiss the appeal for Fulton County’s failure to comply with OCGA § 34-9-105 (b), contending that Judge Wyatt Cummings’ order did not continue the case to a date certain as required by the statute.

With regard to appeals to the superior court from final decisions of the board, OCGA § 34-9-105 (b) provides, in pertinent part: “if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court.”

At the outset we note that OCGA § 34-9-105 (b) clearly provides that the failure to either have a hearing within 60 days of the filing of a notice of appeal or continue the case to a date certain results in an affirmation of the board’s award by operation of law, not a dismissal of the appeal. Therefore, should we find that the case was not properly continued by the superior court, we will consider the board’s award affirmed by operation of law.

However, “[t]here was no affirmation of the Board award by operation of law for failure to comply with the requirements of OCGA § 34-9-105 (b). The original hearing date was set within the prescribed 60 days, as was the . . . continuance.” Action Staffing v. Spalding Ford &c., 198 Ga. App. 764, 766 (1) (403 SE2d 61) (1991). Judge Wyatt Cummings clearly continued the case for a date certain, 90 days, until December 18, 1993, on which date the matter would be heard by another judge to be designated by the court administrator of Fulton County. The 90-day period was apparently provided to allow sufficient time for such designation to take place. We agree with Fulton County that the phrase, “through and including” does not make the date any less certain, but rather, merely permits a hearing before a new judge any time within the 90-day period. “To find otherwise would be to allow the party who has induced the alleged statutory noncompliance to profit from it and would be to ‘(exalt) the need for speedy disposition over fair treatment of the parties and the policy of reaching the merits of a controversy.’ [Cit.]” Id. at 767. Furthermore, if a hearing had not been held by December 18, 1993, the decision of the board would have been affirmed by operation of law if no order disposing of the issues on appeal had been entered within 20 days after the date of the continued hearing. OCGA § 34-9-105 (b).

The trial court’s reading of Judge Wyatt Cummings’ order to the contrary was unreasonable, and its dismissal of the appeal constituted an abuse of the court’s discretion. Accordingly, the judgment of the court is reversed and the case shall be remanded for a hearing on Fulton County’s appeal from the award of the full board.

Judgment reversed and case remanded.

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

Decided November 29, 1994.

Axam, Gavrin & Hughes, Tony L. Axam, for appellant.

Aubrey T. Villines, Jr., for appellee.


text:
    A94A1882.
    WATKINS et al. v. JACKSON et al.
    (451 SE2d 111)
   Ruffin, Judge.

This action was filed by appellants Lisa Watkins and Tracy Jones after they were injured in an automobile collision with a 1989 red Chevrolet pickup truck owned by defendant Ricky Heath and driven by defendant Kenneth Jackson. The complaint alleged that Jackson was driving the pickup with the permission of either Heath or a member of his family, or within the scope of Jackson’s employment with Heath individually or d/b/a Ricky Heath Plumbing. Watkins and Jones sought damages for Jackson’s negligent driving under the doctrines of negligent entrustment and respondeat superior.

Heath filed a motion for summary judgment supported by his and Jackson’s affidavits swearing that while Jackson had been doing some yard work for him earlier in the day, at the time of the collision, which occurred at approximately 11:30 p.m. on August 22, 1992, Jackson had taken the vehicle without the permission of Heath or any member of his family and was driving it for purely personal reasons. Both affiants also stated that at no time on or before August 22, 1992, had Heath or any member of his family ever given Jackson permission to drive the pickup truck or any of Heath’s personal or business vehicles.

In opposition to the motion, Watkins and Jones filed the affidavit of George Robertson, Jackson’s cousin, stating that he had also been involved in a collision with Jackson on August 22, 1992, while Jackson was driving a red Chevrolet Cheyenne pickup and that he had seen Jackson driving the truck “numerous times” prior to the collision.

Watkins and Jones appeal from the trial court’s grant of summary judgment to Heath.

Watkins and Jones contend that Robertson’s affidavit, showing Jackson had driven the vehicle on previous occasions, directly contradicts the sworn statements of Heath and Jackson that Jackson had never driven the vehicle involved in the collision, thereby bringing the truthfulness of the affidavits into question and presenting a question for jury resolution. We do not agree. Neither Heath nor Jackson averred that Jackson had never driven the pickup before. They stated that Jackson had never been given permission to drive the pickup.

Decided November 29, 1994.

Mullís, Marshall, Bindley & Powell, J. A. Powell, Jr., for appellants.

Jones, Cork & Miller, Timothy Harden III, Rufus D. Sams III, for appellees.

“ ‘It is a recognized principle under Georgia law that when an employee is involved in a collision, while operating his employer’s vehicle, a presumption arises that he is acting within the scope of his employment. [Cit.] Once this presumption arises the burden then shifts to the employer “to rebut the presumption by evidence that is ‘clear, positive and uncontradicted’ and that shows the servant was not in the scope of his employment.” [Cit.]’ [Cit.] . . . ‘When the uncontradicted testimony of the defendant. . . shows that the employee was not acting within the scope of his employment at the time of the accident, the plaintiff must show, in addition to the facts which give rise to the presumption that he was in the course of his employment, some other fact which indicates the employee was acting within the scope of his employment.’ ” Collins v. Everidge, 161 Ga. App. 708, 709 (1) (289 SE2d 804) (1982).

Heath presented uncontradicted evidence that Jackson was in no manner performing any service that could be considered in the prosecution of Heath’s business at the time of the collision. Even affording Watkins and Jones the benefits granted to respondents to motions for summary judgment, the “other evidence” represented by Robertson’s affidavit, that Jackson had driven the pickup numerous times, does not rebut Heath’s prima facie showing. Sarantis v. Kroger Co., 201 Ga. App. 552, 553 (411 SE2d 758) (1991). Thus, the trial court did not err in granting summary judgment to Heath.

Judgment affirmed.

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