text:
    73789, 73790.
    ROYAL CROWN COMPANIES, INC. v. McMAHON; and vice versa.
    (359 SE2d 379)
   Pope, Judge.

Plaintiff McMahon was employed as president of Arby’s, Inc., a wholly owned subsidiary of defendant Royal Crown Companies, Inc. (Royal Crown). Plaintiff did not have a written employment contract and his employment was terminable at the will of either party. In 1981 Royal Crown was a prime candidate for acquisition because of merger and takeover activities in the soft drink industry. To allay fears and uncertainty among top management, Royal Crown’s board of directors voted to enter into agreements with all staff officers of Royal Crown and chief executive officers of subsidiary corporations, including plaintiff, which contained clauses stipulating severance payment in the event of termination of employment or voluntary resignation after a change of control.

In late 1982, the parties to this action entered into a written agreement providing for the payment of one year’s salary and other benefits in the event plaintiff resigned or was terminated within a specified period after a change in control of Royal Crown. The agreement was prepared by Royal Crown’s in-house legal counsel and approved by its board of directors. The express purpose of the agreement was to protect the interests of the company and its shareholders by reinforcing and encouraging the continued attention and dedication of key management to their assigned duties without distraction by the potentially disturbing circumstances of the possibility of a change in corporate control. The agreement contained the following language: “In order to induce you to remain in your present employment and in consideration of your agreement to continue your employment subject to the terms and conditions hereof, this letter agreement sets forth the severance pay and benefits which the Company agrees will be provided to you in the event your employment is terminated pursuant to a “Change in Control of the Company” [as defined in and under the circumstances described in the remainder of the agreement].” Shortly after a change in control of the company and in accordance with the terms of the agreement, plaintiff voluntarily resigned. Royal Crown extended insurance benefits as outlined in the agreement but refused to give him severance pay in the amount of $332,165. Plaintiff sued for breach of the agreement and asked for attorney fees and expenses for Royal Crown’s alleged bad faith and stubborn litigiousness. Royal Crown appeals (No. 73789) from the trial court’s grant of summary judgment to plaintiff on the breach of contract claim. Plaintiff cross-appeals (No. 73790) from the trial court’s grant of summary judgment to Royal Crown on the claim for attorney fees and expenses.

Case No. 73789

1. In its first enumeration of error, Royal Crown argues the agreement should be unenforceable and void as a matter of public policy. Royal Crown seeks to distinguish the agreement under consideration from the typical severance agreement because it is a special type of contract which is commonly referred to as a “golden parachute.” Generally speaking, a golden parachute is simply a severance agreement triggered by a change in corporate control. It provides a safe landing in the event an employee is forced to bail out after such a change. We are unpersuaded by Royal Crown’s attempt, largely without legal support, to defeat this otherwise enforceable severance agreement simply because it is contingent upon a change in corporate control. The term “golden parachute” is not by itself legally significant. Koenings v. Joseph Schlitz Brewing Co., 126 Wis.2d 349 (1) (377 NW2d 593) (1985). A severance contract by any other name would be just as enforceable.

Royal Crown argues that golden parachute agreements, in general, bear the taint of a conflict of interest in favor of the management beneficiaries to the detriment of the shareholders. We find no such conflict here. Plaintiff was not a member of the board of directors which approved this agreement. Moreover, the agreement was offered for the express purpose of protecting the shareholders by inducing the continued employment of plaintiff during a time of uncertainty when he might otherwise have been distracted by concerns for his own financial security to seek employment elsewhere.

Neither is the agreement void for failure of consideration. In the case at hand, plaintiff’s employment was terminable at will and he was under no obligation to continue. The agreement was offered for the express purpose of inducing plaintiff to remain in his position during merger negotiations. Continued performance under a terminable-at-will contract furnishes sufficient consideration for the promise of additional severance pay. “We therefore reject any argument by the [employer] that any contract for severance pay is void as being without consideration.” Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981), on later appeal, Amax, Inc. v. Fletcher, 166 Ga. App. 789 (305 SE2d 601) (1983).

We reject Royal Crown’s argument that the court should apply a reasonableness test to the amount of the severance agreement. Royal Crown freely contracted with plaintiff for his yearly compensation and for the severance pay agreement. Now, Royal Crown does not wish to be bound by its earlier agreement. This court will not interfere with the parties’ freedom to contract. This same response is made to Royal Crown’s argument that the agreement is against public policy because plaintiff seeks to enforce it against the new owners of the company. The merger agreement expressly ratified all outstanding employment and severance agreements.

2. Royal Crown argues the agreement is also unenforceable as a penalty. A liquidated damages analysis is inapplicable to the case at hand since the severance agreement does not purport to be a stipulated sum for damages for a breach. See OCGA § 13-6-7. “If not liquidated damages, then what? As a reading of the contract suggests . . . the disputed provision simply describes the price to be paid for [plaintiff’s] services.” ADP-Fin. Computer Svcs. v. First Nat. Bank of Cobb County, 703 F2d 1261, 1264 (11th Cir. 1983). In this case, the severance agreement was the price, in addition to ongoing compensation, for plaintiff’s continued performance which he was not otherwise obligated to render. Termination of plaintiffs position could not possibly constitute a breach of the employment agreement since it was terminable at will. We hold this agreement to be an enforceable severance pay agreement. “Because under the contract [plaintiffs] right to severance pay was absolute ... we find no merit in [Royal Crown’s] additional argument that [plaintiffs] damages should have been reduced under the ‘mitigation theory.’ ” Atlanta Foot &c. Clinics v. Patton, 176 Ga. App. 2, 3 (335 SE2d 141) (1985). See also Salvatori Corp. v. Rubin, 159 Ga. App. 369 (4) (283 SE2d 326) (1981).

3. We reject Royal Crown’s argument that a genuine issue remains as to whether the plaintiff is entitled to payment because he did not faithfully perform under the contract. The severance agreement contained an exception for termination for cause. After change in corporate control, plaintiff continued in his position for several months. Although the new directors had ample opportunity to discharge plaintiff if he was not performing satisfactorily, there is no evidence that termination procedures were ever commenced. In response to plaintiff’s motion for summary judgment, Royal Crown presented no facts upon which a jury could find the plaintiff was not entitled to enforce the terms of the severance pay agreement.

Case No. 73790

4. We agree with plaintiff that issues of fact remain for the jury in regard to his claim for an award of attorney fees and expenses pursuant to OCGA § 13-6-11. If a breach of contract is poisoned by bad faith, expenses of litigation may be allowed. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106 (2) (115 SE2d 852) (1960). The record shows Royal Crown promptly honored identical agreements with several other employees who exercised their rights to resign after the change in corporate control. According to testimony, part of the reason payment was not made to plaintiff was Royal Crown’s belief that plaintiff was not entitled to those benefits because he had not faithfully performed his duties. However, one of the only two examples given of plaintiff’s poor performance was a business decision made prior to the change in corporate control. As noted above, although the new directors had ample opportunity to discharge plaintiff if he was not performing satisfactorily, the record shows no termination procedures were ever commenced. These facts raise an issue for the jury to determine whether defendant’s refusal to honor the severance agreement was made in bad faith.

We also find an issue of fact exists as to whether defendant has been stubbornly litigious. Where, as here, the court finds no genuine issue of dispute exists, a jury question remains as to whether the defenses asserted by defendant were made in good faith. See Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (191 SE2d 317) (1972).

Decided June 19, 1987

Rehearings denied July 6, 1987

Stephen E. O’Day, Susan C. Kerr, for appellant.

David A. Rabin, Thomas T. Tate, for appellee.

5. Because a jury issue exists as to defendant’s good or bad faith in asserting its defenses, we cannot find as a matter of law that this appeal was taken up for delay only. Therefore, plaintiff’s motion for damages for frivolous appeal is denied.

Judgment affirmed in Case No. 73789. Judgment reversed in Case No. 73790 and motion for damages denied.

Birdsong, C. J., and Been, P. J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    73854.
    COTTON et al. v. TOOLE et al.
    (359 SE2d 368)
   Benham, Judge.

Appellant Larry Cotton was injured in an automobile collision involving appellees’ decedent, John Toole. Cotton and his wife filed suit against appellees James Toole and First National Bank of Atlanta, the executors of the will of John Toole, and against appellee Captain’s Roost Seafood Restaurant, Inc., the owner of the automobile the decedent was driving at the time of the collision. This appeal is from the grant of summary judgment to appellee Captain’s Roost Seafood Restaurant.

Appellants’ complaint against Captain’s Roost was couched in terms of respondeat superior and negligent entrustment. The trial court found neither theory viable and dismissed appellants’ claims against the restaurant.

It is undisputed that on the day of the collision, the decedent, the owner and president of Captain’s Roost, played golf and consumed alcohol. He departed the golf course driving the automobile owned by Captain’s Roost along a route that would have taken him by the restaurant on his way home. Before getting to the restaurant or his home, the decedent’s car collided with that driven by appellant Larry Cotton. The decedent’s blood alcohol test results varied from .17 to .19.

1. “The general rule of respondeat superior follows: When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.] ‘Where a vehicle is involved in a collision, and it is shown that the automobile is owned by [another], and that the operator of the vehicle is in the employment of [the owner], a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.’ [Cits.] This must be done by clear, positive and uncontradicted evidence. [Cit.]” Allen Kane’s &c. Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979). In the case at bar, appellee Captain’s Roost presented the deposition testimony of one of the decedent’s golfing foursome, who stated that while socializing after their round of golf, the decedent had told him he was going home. Even disregarding, for the moment, the hearsay nature of appellees’ evidence, we cannot say the testimony is clear, positive, and uncon-tradicted evidence that, at the time of the actual collision, [the decedent] was not acting within the scope of [his] employment, but was instead engaged in [a] personal matter. . . .” Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983). (Emphasis supplied.) Because the employee/driver died as a result of the collision, there is no direct evidence concerning his activity at the time of the collision. Because the decedent was also the only person who could conduct corporate business on behalf of Captain’s Roost, the record contains no statement from the employer concerning, the nature of the decedent’s activity at the time of the fatal crash. Compare Curtis, Inc. v. Kelley, supra; Allen Kane’s &c. Dodge v. Barnes, supra; Bonney Motor Express v. Yates, 171 Ga. App. 754 (1) (320 SE2d 844) (1984); W. M. W., Inc. v. Collier, 170 Ga. App. 882 (318 SE2d 747) (1984). Since the record contains no clear, positive and uncontradicted evidence that the decedent was not engaged in an activity within the scope of his employment, appellee Captain’s Roost did not rebut the presumption that the decedent was in the scope of his employment at the time of the collision. Therefore, summary judgment in favor of Captain’s Roost on the theory of respondeat superior was inappropriate.

2. “Under the theory of negligent entrustment, liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. [Cits.]” Cherry v. Kelly Svcs., 171 Ga. App. 235 (1) (319 SE2d 463) (1984). Assuming without deciding that the corporate owner of the car might be held liable for negligent en-trustment by decedent, who, acting on behalf of the corporation, entrusted the car to himself, “it was incumbent upon [appellants] to show that [Captain’s Roost] had actual knowledge of a pattern of reckless driving or facts from which such knowledge could reasonably be inferred. [Cit.]” Bonney Motor Express v. Yates, supra, Division 2. The record is devoid of any evidence that the entruster of the vehicle actually knew of the decedent/entrustee’s state of intoxication at the time of the entrustment. The record also contains no evidence (e.g., the decedent’s driving record) from which knowledge of a pattern of reckless driving could be inferred. Therefore, the trial court properly granted Captain’s Roost’s motion for summary judgment on the issue of negligent entrustment.

Decided June 18, 1987

Rehearings denied July 6, 1987

William L. Skinner, for appellants.

Ben Kingree III, Elizabeth J. Bondurant, for appellees.

Judgment affirmed in part and reversed in part.

Banke, P. J., concurs. Carley, J., concurs in Division 1 and in the judgment.


author: Sognier, Judge.

text:
    74265.
    HALSELL v. THE STATE.
    (359 SE2d 393)
   Sognier, Judge.

Halsell appeals from his conviction of armed robbery, trafficking in cocaine in violation of the Georgia Controlled Substances Act, aggravated assault and possession of a firearm during commission of a crime.

Appellant enumerates four errors on this appeal. First, denial of his motion for a new trial because the State did not disclose certain tape recordings containing exculpatory material pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215). Second, denial of his motion for a new trial based on newly discovered evidence. Third, denial of his request to take part personally in closing argument, and fourth, denial of his request that the jury be permitted to view the van involved in this case.

None of the errors enumerated by appellant are supported by the record or transcript. Appellant filed no Brady motion for disclosure of exculpatory materials, and neither the motion for new trial or the two amended motions for new trial raise the issue of newly discovered evidence. Appellant acknowledges in his brief that the transcript does not disclose a request for a view of the van by the jury or a request that he be allowed to participate personally in closing argument. He stated, however, that such requests were made and the State should admit that such requests were made. We have no such admissions from the State before us.

This court cannot consider matters raised for the first time on appeal, Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985), nor can we consider factual representations in a brief which are not supported by the transcript. McCutchen v. State, 177 Ga. App. 719, 722 (3) (341 SE2d 260) (1986). Hence, there is nothing for us to review.

Decided June 22, 1987

Rehearing denied July 6, 1987

George M. Saliba II, Roy W. Copeland, for appellant.

H. Lamar Cole, District Attorney, for appellee.

Appellant filed pro se briefs in addition to those filed by his counsel. None of the matters raised in his briefs, however, were enumerated as error, objected to at trial or made the subject of pretrial or trial motions. Thus, for the reasons set forth above, we cannot consider such allegations.

Judgment affirmed.

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


text:
    74329, 74365.
    DOUGHERTY COUNTY BOARD OF EDUCATION et al. v. LUNDY; and vice versa.
    (359 SE2d 403)
   Sognier, Judge.

Ernestine Lundy sought workers’ compensation benefits from her employer, Dougherty County Board of Education (Dougherty County), contending she had developed atypical psychosis and paranoid schizophrenia from teaching third-grade students at one of Dougherty County’s schools. The administrative law judge, Gordon Zeese, held that Lundy had suffered a compensable injury arising out of and in the course of her employment and awarded her compensation for her injury. Dougherty County and its insurer timely appealed to the State Board of Workers’ Compensation (Board) which reversed the ALJ’s award because of the absence of any evidence of physical injury suffered by Lundy to support her claim for psychological disability. The parties agree that the Board’s award, dated June 5, 1986, was signed by two directors of the Board and by “Acting Director,” Calvin B. Southard, an ALJ and the executive assistant to the Board. Southard, pursuant to a verbal appointment by the Chairman of the Board and the concurrence of the directors, was appointed an “acting director,” or, more accurately, a deputy director pursuant to OCGA § 34-9-47, in order to sit in for the absent employee-representative director. Lundy filed a motion to reconsider on the ground that South-ard was not qualified to sit in place of the employee-representative director. On July 1, 1986, the Board, with all three regular directors sitting, granted Lundy’s motion in order to “correct an apparent error” and vacated the June 5 award. The Board then conducted a de novo review of the evidence and made the findings and conclusions of ALJ Zeese its own. Dougherty County and its insurer appealed to the superior court which found (1) the Board exceeded its authority in making the July 1 award in that (a) it conducted a de novo consideration of the evidence and (b) the error caused by Southard’s presence on the earlier Board, which was contrary to OCGA § 34-9-42 and which rendered the June 5 award null and void, was not an “apparent” error. OCGA § 34-9-103 (b). The superior court thereupon set aside the July 1 award according to OCGA § 34-9-105 (c). However, the superior court then held (2) that the adoption by the July 1 Board of the findings of ALJ Zeese satisfied the “any evidence” test. Determining that no further findings of fact or additional consideration of evidence was required, the superior court ordered that an award be entered for Lundy in accordance with ALJ Zeese’s findings of fact and the adoption of those findings in the July 1 award of the Board. This court granted the application for discretionary appeal made by Dougherty County and its insurer, The Standard Fire Insurance Company, in Case No. 74329. Lundy cross appeals in Case No. 74365 from that part of the superior court’s order holding the July 1 Board exceeded its authority in reconsidering the June 5 award.

1. The initial question to be determined is whether a person appointed by the Board to serve temporarily on the Board as a deputy director pursuant to OCGA § 34-9-47 must meet the qualifications of a regular director of the Board selected by the Governor pursuant to OCGA §§ 34-9-40; -42. OCGA § 34-9-40 places the duty on the Governor to appoint directors to the Board. OCGA § 34-9-42 sets forth the qualifications the directors appointed by the Governor must meet: one director, the chairman, “shall” be a person capable of representing the public at large; one director “shall” be considered a representative of employers due to previous employment, affiliation, etc.; and one “shall” be a person whose previous employment or affiliation qualifies him to be considered a representative of employees. It is un-controverted that Southard’s credentials, distinguished though they are, are not such as to qualify him to serve as an employee-representative director. However, we are not addressing here the question whether the Governor could appoint Southard to serve as the employee-representative director of the Board. Rather, we are concerned with OCGA § 34-9-47 in which the General Assembly gave the Board the authority to appoint deputy directors to serve “from time to time . . . when and where needed and without permanent positions.” We have held that this statute provides the procedure the Board should use to replace (temporarily) any director who is disqualified to sit on the Board. Delta Air Lines v. McDaniel, 176 Ga. App. 523, 524 (336 SE2d 610) (1985). It follows that OCGA § 34-9-47 also provides the procedure to be followed in order to replace temporarily any director who is unable to sit on the Board during its regularly convened sessions. The language of OCGA § 34-9-47 does not contain any qualifications an appointee must meet to become a deputy director, nor do we feel that such a requirement is implicit in the statute, as Lundy argues and the superior court appeared to find. OCGA § 34-9-47 provides that the Board may appoint deputy directors, a board whose components have already been established to provide for fair and equitable representation by all parties involved by means of OCGA § 34-9-42.

Therefore, since the plain and unambiguous language of OCGA § 34-9-47 does not require a deputy director, appointed by the Board to fill the seat of an absent director, to meet the qualifications of that particular director, and since the composition of the Board selecting the temporary deputy director safeguards the interests of all the parties, we will not graft the qualifications of Governor-appointed directors of the Board onto the Board-appointed temporary deputy directors. The appointment of Southard by the Board to sit in temporarily for the absent employee-representative director thus did not constitute error under the Workers’ Compensation Act, OCGA § 34-9-1 et seq. Nor does the record reveal any other error in Southard’s temporary appointment. As we noted in Delta Air Lines, supra, directors of the Board are subject to the Code of Judicial Conduct. It follows that deputy directors exercising the power and authority of directors are also subject to the Code of Judicial Conduct while they are serving as officers of a judicial system performing judicial functions. 251 Ga. 907-908 (1984). We note that under 251 Ga. 908 B (1) and (2), a deputy director acting temporarily as a director constitutes the equivalent of a judge pro tempore, who is not required to comply with Canon 5 C (3), D, E, F, and G, and Canon 6 C, and who should not act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto. We further note that Southard, as “acting director” of the Board, properly recused himself from hearing any cases in which he had served as the ALJ.

Lundy does not contend, nor is there the slightest indication in the record, that any infringement of the Code of Judicial Conduct occurred during Southard’s temporary appointment as acting director on the Board. Since we have determined that the sole basis for Lundy’s enumeration that Southard was disqualified to serve as an acting director was incorrect as a matter of law, it follows that the superior court incorrectly held that Southard’s appointment was error.

2. However, the superior court correctly determined the July 1 Board exceeded its authority in reconsidering the June 5 award, albeit for a reason (no “apparent” error) we have held incorrect in Division 1. OCGA § 34-9-103 (b) provides that “the full board or any of its members or deputy directors issuing an award shall have authority to reconsider, amend, or revise the award to correct apparent errors and omissions.” Although we have held that the appointment of Southard as acting director was not error, apparent or otherwise, we affirm the superior court’s holding that the July 1 Board exceeded its authority in reconsidering the June 5 award under the “right for any reason” principle. See generally Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 189 (345 SE2d 858) (1986). Accordingly, this holding is dispositive of Lundy’s cross appeal and so as to Case No. 74365, we affirm.

3. The superior court, after properly setting aside the July 1 Board’s award, thereupon erred when it then upheld the July 1 Board’s adoption of ALJ Zeese’s award under the “any evidence” rule in favor of Lundy. The July 1 Board was without statutory authority when it reconsidered, then vacated, the June 5 Board’s award, quite aside from the fact that the July 1 Board then improperly conducted a de novo review of the evidence in order to enter the award for Lundy. See Cotton States Ins. Co. v. Bates, 140 Ga. App. 428, 429 (231 SE2d 445) (1976); Aetna Cas. &c. Co. v. Barden, 179 Ga. App. 442, 445 (346 SE2d 588) (1986), Pope, Judge, concurring specially. The Board being an administrative body possessing only the power conferred upon it by statute, Hyde v. Atlantic Steel Co., 112 Ga. App. 136 (1) (a) (144 SE2d 232) (1965), the July 1 Board had no authority under OCGA § 34-9-103 (b) to reconsider and vacate the June 5 Board’s award, which contained no apparent error or omission, and accordingly the July 1 Board’s award is null and void. Thus, the superior court, while properly applying the “any evidence” standard, applied the standard to the wrong award. The sole valid award was the June 5 Board’s award reversing ALJ Zeese’s award and denying Lundy compensation due to the lack of any physical injury to support her claim of psychological disability. Thus, we need not address those enumerations of error raised by Dougherty County and its insurer asserting the superior court’s order and the July 1 Board’s award were incorrect as a matter of law under the holdings of this court in Hanson Buick v. Chatham, 163 Ga. App. 127 (292 SE2d 428) (1982) and Williams v. ARA Environmental Svcs., 175 Ga. App. 661 (334 SE2d 192) (1985). Our review of the record reveals there is sufficient evidence that Lundy’s psychological injury did not arise from any discernible physical occurrence to support the June 5 Board’s award. Therefore, as to Case No. 74329, the order of the superior court is reversed with direction that the June 5 award of the Board be reinstated as the valid award of the Board and affirmed under the “any evidence” standard. See generally Randall & Lewis Lumber Co. v. Randall, 177 Ga. App. 665, 666 (340 SE2d 644) (1986).

Decided June 24, 1987

Rehearing denied July 6, 1987

William A. Erwin, for appellants.

Jack J. Helms, Jack J. Helms, Jr., for appellee.

Judgment in Case No. 74329 reversed with direction. Judgment in Case No. 74365 affirmed.

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


author: Pope, Judge.

text:
    73728.
    SUPERB CARPET MILLS, INC. v. THOMASON et al.
    (359 SE2d 370)
   Pope, Judge.

On the date of the occurrence which forms the basis for their complaint, plaintiffs were employees of defendant Superb Carpet Mills, Inc. While plaintiff Thomason was replacing the seal on a 120,000-gallon latex tank, it suddenly exploded, allegedly causing injuries to Thomason and plaintiff Edmondson, who was working nearby. It is undisputed that the incident arose out of and in the course of plaintiffs’ employment with defendant. Accordingly, plaintiffs received benefits for their personal injuries pursuant to the Workers’ Compensation Act, OCGA § 34-9-1 et seq.

Plaintiffs brought this action to recover property damage to their clothing. In addition to compensatory damages, plaintiffs also made a claim for additional damages for aggravating circumstances pursuant to OCGA § 51-12-5. Plaintiffs claim defendant, by and through its supervisors, knew that safety devices on the tank had been altered, thereby rendering it unsafe. Plaintiffs claim defendant’s actions amounted to wilful and reckless disregard for their safety. Defendant appeals from the trial court’s denial of its motion for summary judgment on the ground plaintiffs’ complaint is barred by the exclusive remedy provision of the Workers’ Compensation Act.

This appeal presents the novel question of whether an employee’s claim for property damage is barred by the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11. Clearly, the Act provides the exclusive remedy as to those “rights and . . . remedies granted to an employee by this chapter. . . .” Id. “OCGA § 34-9-11 . . . has been interpreted consistently to mean that, ‘where the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against his employer.’ Freeman v. Ryder Truck Lines, Inc., 244 Ga. 80, 82 (259 SE2d 36) (1979) (citing cases). Conversely, although ‘the remedy provided by this statute is exclusive within the field of its operation ... it does not exclude redress in cases to which it is not applicable.’ Covington v. Berkeley Granite Corp., 182 Ga. 235, 237 (184 SE 871) (1935). In Covington, the court went on ‘to say, the right “to bring an ordinary action for damages” is not excluded by this statute as to injuries which do not fall within its terms.’ (182 Ga. at 238).” Bright v. Nimmo, 253 Ga. 378, 379-380 (320 SE2d 365) (1984).

The history of workers’ compensation legislation indicates the original purpose of these laws was to create a statutory remedy for personal injury. See 1 Larson, Workmen’s Compensation Law, §§ 2 through 5 (1985). According to the Georgia Act, the definition of “injury” is identical and synonymous with “personal injury,” both terms meaning “only injury by accident arising out of and in the course of the employment. . . .” OCGA § 34-9-1 (4). The benefits conferred by the Act relate to damages for personal injury and not property damage. In those cases in which claims not based upon a physical injury were held to be barred by the Act, the Act provided a specific remedy for the damages sought. See, e.g., Bright v. Nimmo, supra (action for intentional delay in payment of benefits is barred by the provision granting a penalty for delay, OCGA § 34-9-221 (e)); Aetna Cas. &c. Co. v. Davis, 253 Ga. 376 (2) (320 SE2d 368) (1984) (action for breach of a settlement agreement is barred by the provision granting a penalty for the insurer’s controverting medical payments without reasonable grounds, OCGA § 34-9-108 (b) (1)); Patterson v. Curtis Pub. Co., 58 Ga. App. 211 (198 SE 102) (1938) (action for attorney fees for bad faith and stubborn litigiousness in defending the claim is barred by the provision granting a penalty for the employer’s defense of a claim without reasonable grounds. OCGA § 34-9-108 (b) (1) (formerly Code Ann. § 114-712)). “[R]ights of action for damages should not be deemed taken away except when something of value has been put in their place.” 2A Larson, Workmen’s Compensation Law, § 65.40 at 12-26 (1986). Because the Georgia Workers’ Compensation Act does not provide a remedy for damage to personal property, we find the Act does not bar an action for damages to personal property. Accord Haddad v. Justice, 64 Mich. App. 74 (235 NW2d 159) (1975). To hold otherwise would deny an employee of this constitutional right to due process and equal protection of the law.

However, we disagree with the trial court’s ruling that the Act does not bar plaintiffs’ claims for aggravated damages. Additional damages for aggravated circumstances pursuant to OCGA § 51-12-5 are allowed only to deter the wrongdoer from repeating the trespass or to compensate for the wounded feelings of the plaintiff. Although barred from recovering any further compensation for personal injury by the Workers’ Compensation Act, plaintiffs maintain they may pursue additional damages for the alleged reckless and wanton acts of defendant in conjunction with their claim for property damage. However, aggravated damages are not predicated upon plaintiffs’ injuries but upon the “aggravated nature of the defendant’s conduct.” Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (216 SE2d 776) (1975). In this case, the alleged property damage and personal injuries arose out of the same conduct or incident. It is well settled that the Georgia Workers’ Compensation Act precludes recovery of additional damages for wilful or intentional acts of the employer so long as the injury arises out of and in the course of employment. See Southern Wire &c. v. Fowler, 217 Ga. 727 (124 SE2d 738) (1962); Helton v. Interstate Brands Corp., 155 Ga. App. 607 (271 SE2d 739) (1980). “In some jurisdictions, exceptions to this general rule are expressly provided by statute. . . . The Georgia Workers’ Compensation Act makes no statutory exception to the exclusive remedy provision.” Pappas v. Hill-Staton Engineers, Inc., 183 Ga. App. 258, 260 (358 SE2d 625) (1987).

We hold that the Workers’ Compensation Act does not bar an employee from bringing a claim for property damage against his employer. However, the employee may not recover additional damages for aggravated circumstances where the property damage arose out of the same incident in which the employee sustained personal injury compensable under the Workers’ Compensation Act.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Deen, P. J., concur.

On Motion for Rehearing.

Plaintiffs maintain this court’s decision was not timely rendered and therefore the decision of the lower court must be affirmed by operation of law. “The Supreme Court and Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.” Ga. Const. Art. VI, Sec. IX, Par. II. The relevant date is not the date the appeal was filed with the court but the date the case was docketed for hearing. Although this appeal was filed in the September 1986 term of court, it was docketed for hearing during the January 1987 term. Therefore, the disposition of the appeal during the April term complies with the “two-term rule” of the Georgia Constitution.

Motion for rehearing denied.

Decided June 18, 1987

Rehearing denied July 7, 1987

James T. McDonald, Jr., Mark J. Goodman, for appellant.

Christopher A. Townley, John P. Neal III, James A. Secord, Amy E. Abernathy, for appellees.

       The Act does provide for replacement of prosthetic devices damaged or destroyed in a compensable accident. OCGA § 34-9-200 (a).


text:
    73780.
    DAVIDSON v. THE STATE.
    (359 SE2d 372)
   Pope, Judge.

Leland C. Davidson brings this appeal from his conviction and sentence of incest and child molestation. Held:

1. Defendant’s first enumeration cites as error the trial court’s “failing to instruct the jury” as to venue and also as to the four-year statute of limitation. However, the record discloses that defense counsel, upon inquiry by the trial court, neither objected to the charge as given nor reserved the right to later object. Accordingly, defendant has waived the right to enumerate the charge as error. Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980); Rann v. State, 183 Ga. App. 234 (3) (358 SE2d 644) (1987).

2 (a). Defendant’s second enumeration of error challenges the trial court’s denial of his pretrial “Motion for Psychiatric Assistance.” Defendant asserted that the purpose of this motion was to determine whether “he was able to form the intent necessary under the law to be responsible for the acts of which he is accused” and also “that this assistance will be necessary to show mitigating circumstances should he be convicted.” The record shows, however, that the trial court had earlier granted defendant’s motion for psychiatric examination at the county’s expense. The psychiatrist diagnosed defendant as “a Major Depression, Recurrent” who in the past was impaired by suicidal ide-ation and had twice attempted suicide. Nevertheless, the psychiatrist’s examination, conducted after the filing of the subject motion, concluded that defendant “is both legally competent to stand trial and criminally responsible for his behaviors. He is aware of the nature of the charges against him and, in the opinion of this examiner, perfectly capable of assisting his attorney in preparing his defense. In regard to criminal responsibility, it is the professional opinion of this examiner that he did and does know right from wrong and that there is no evidence, whatsoever, [of] a delusional compulsion.” The record discloses no other evidence regarding defendant’s mental condition, and the trial court subsequently denied defendant’s motion.

Defendant bases this enumeration on the holding in Ake v. Oklahoma, 470 U. S. 68 (106 SC 1087, 84 LE2d 53) (1985), that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue, if the defendant cannot otherwise afford one.” Id. at 74. The Supreme Court noted additionally, however, that “[a] defendant’s mental condition is not necessarily at issue in every criminal proceeding . . . and it is unlikely that psychiatric assistance of the kind we have described would be of probable value in cases where it is not. The risk of error from denial of such assistance, as well as its probable value, are most predictably at their height when the defendant’s mental condition is seriously in question. ... We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 82, 83.

Our review of the record in this case discloses no evidence that defendant’s sanity at the time of the offenses charged would be a significant factor at trial nor even that his mental condition was seriously in question. “Where a defendant offers ‘little more than undeveloped assertions that the requested assistance would be beneficial, we find no deprivation of due process in the trial [court’s] decision.’ [Cit.]” Bowden v. Kemp, 767 F2d 761, 765 (11th Cir. 1985). In the absence of an appropriate showing by defendant, we find no abuse of discretion in the trial court’s denial of the “Motion for Psychiatric Assistance.” See Jackson v. State, 180 Ga. App. 774 (1) (350 SE2d 484) (1986); Cartwright v. Maynard, 802 F2d 1203 (I) (10th Cir. 1986); Bowden v. Kemp, supra; see generally Cargill v. State, 255 Ga. 616 (13) (340 SE2d 891) (1986); House v. State, 170 Ga. App. 53 (2) (316 SE2d 36) (1984).

(b). It follows from the foregoing discussion that defendant also suffered no deprivation of effective assistance of counsel resulting from the trial court’s denial of his motion. See Cartwright v. Maynard, supra.

3. Defendant’s third and fourth enumerations of error assert the proposition that the crime of child molestation cannot be proved absent evidence that the victim was in an unclothed state at the time of the crime. We find no statutory basis for this assertion, and we reject as specious defendant’s contention that whether the victim was clothed or unclothed is one factor in determining whether an act is “immoral or indecent” so as to prove the crime of child molestation. See OCGA § 16-6-4; see generally Winter v. State, 171 Ga. App. 511 (320 SE2d 233) (1984).

4 (a). Defendant next assigns error to the trial court’s failure to direct the Department of Human Resources (which had obtained custody of the victim of the alleged molestation) to allow defense counsel to conduct a pretrial interview with the victim in private. However, the record discloses that the trial court did order that the victim be made available by the legal custodian to confer with defense counsel. The court also noted that the victim “is not required to talk to defense counsel but such prerogative to refuse shall be her own free will and not be influenced by the desires and instructions of the legal custodian.” Under these circumstances, this enumeration provides no basis for reversal. See Sears v. State, 182 Ga. App. 480 (9) (356 SE2d 72) (1987); see generally Ford v. State, 256 Ga. 375 (2a) (349 SE2d 361) (1986).

(b). Defendant also assigns error to the trial court’s failure to direct the Department of Human Resources to disclose any and all reports, etc., used by or prepared by it in investigating the allegation of child abuse. The record discloses that the basis of this enumeration is defendant’s general request for discovery made pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963); see, e.g., White v. State, 230 Ga. 327 (6) (196 SE2d 849), cert. dismissed, 414 U. S. 886, reh. den., 414 U. S. 1086 (1973).

The records sought by defendant are confidential and access thereto is prohibited except as provided by statute. OCGA § 49-5-40 et seq. The proper procedure for obtaining access to such records in cases such as the one at bar is to petition the trial court to subpoena the records and conduct an in camera inspection as to whether the records are necessary for determination of an issue before the court and are otherwise admissible under the rules of evidence. OCGA § 49-5-41 (a) (2); see Ray v. Dept. of Human Resources, 155 Ga. App. 81 (1) (270 SE2d 303) (1980). This procedure comports with the requirements of due process. See Pennsylvania v. Ritchie, 480 U. S. _ (108 SC —, 94 LE2d 40) (1987). We find defendant’s general Brady motion inadequate to have properly raised this issue in the court below, and thus find the assertion of error in this regard to be meritless.

In any event, defendant has failed to show that the information withheld so impaired his defense that he was denied a fair trial within the meaning of the Brady rule; i.e., he has failed to show that the information withheld was both material and exculpatory. See Wallin v. State, 248 Ga. 29 (6) (279 SE2d 687) (1981); Simmons v. State, 174 Ga. App. 171 (4) (329 SE2d 312) (1985); Barnes v. State, 157 Ga. App. 582 (2) (277 SE2d 916) (1981). This enumeration of error provides no basis for a new trial.

5. Defendant’s sixth enumeration asserts error in two parts concerning the introduction into evidence of his confession of incest. However, we find no objections in the court below raising these issues and thus will not consider them for the first time on appeal. Cherry v. State, 178 Ga. App. 483 (3) (343 SE2d 510) (1986).

Decided June 18, 1987

Rehearing denied July 7, 1987

Virgil L. Brown, Michael P. Katz, for appellant.

Arthur E. Mallory III, District Attorney, Randall K. Coggin, William G. Hamrick, Jr., Assistant District Attorneys, for appellee.

6. Defendant’s seventh enumeration of error is controlled adversely to him by Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982).

7. In his eighth enumeration defendant suggests that the State wrongfully placed his character in issue by resorting “to a line of cross-examination which was designed to suggest to the jury that if there was any discrepancy in the different stories told by the various witnesses, then the only logical conclusion was that the defendant had to be lying.” This is clearly one of the purposes of cross-examination and, therefore, we find no error. See generally Daniel, Ga. Crim. Trial Prac. (1986 ed.), § 20-22.

8. Lastly, we find no basis upon which to grant defendant’s pro se “Motion for Hearing Transcript” filed with this court.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: Beasley, Judge.

text:
    73808.
    WEHUNT v. ITT BUSINESS COMMUNICATIONS CORPORATION et al.
    (359 SE2d 383)
   Beasley, Judge.

Defendant Wehunt appeals from a jury verdict for ITT in a suit to enforce the damages clause of a contract for lease of a phone system, after the lease was terminated before expiration.

1. Defendant’s enumerations 1, 2, & 5 deal with the court’s denial of his motion for directed verdict and judgment notwithstanding the verdict or in the alternative for new trial. Defendant contends that it was error for the court to deny the first two forms of relief because, as a matter of law, the contract was vague and indefinite and had been mutually rescinded. The motion for directed verdict included neither of these grounds, which for that reason cannot then be raised on appeal. Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1987); Fidelity & Cas. Ins. Co. v. Massey, 162 Ga. App. 249, 250 (1) (291 SE2d 97) (1982). The ground asserted in paragraph four of defendant’s motion for judgment n.o.v. in the trial court is argued on appeal, but it was not contained in the motion for directed verdict as required by OCGA § 9-11-50 (b). Therefore, it will not be considered on appeal. Battle v. Yancey Bros., 157 Ga. App. 277 (1a) (277 SE2d 280) (1981).

The motion for new trial was abandoned before the trial court, so there is nothing before us to review in that regard.

2. Defendant’s answer included the defense of failure to state a claim upon which relief could be granted. OCGA § 9-11-12 (b) (6). On the day of trial, defendant orally moved to dismiss the complaint on this ground. Denial of the motion is claimed as error.

The basis for the defense, according to the argument made at the hearing, was that the contract clause for unaccrued rental payments under which ITT sought to recover a sum in lieu of the remaining, future rental payments on the lease was not one providing for liquidated damages, as claimed by ITT, but was instead a penalty prohibited by law. See Southeastern Land Fund v. Real Estate World, 237 Ga. 227 (227 SE2d 340) (1976).

A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant. Thompson v. Frost, 125 Ga. App. 753, 755 (1) (188 SE2d 905) (1972); see News-Press Pub. Co. v. Kalle, 173 Ga. App. 411, 412 (2) (326 SE2d 582) (1985).

The pleadings reveal a claim pursuant to a clause in an equipment lease for damages which plaintiff contends are liquidated. The clause provides that, upon default of the customer, all past due rental payments will be due and, “In addition, because the parties have agreed that Terryphone’s actual damages in the event of default by Customer would be difficult, if not impossible, to calculate, Customer agrees to pay ... a termination charge equal to fifty percent (50%) of the remaining rental obligation pursuant to this agreement. For purposes of this paragraph, the remaining rental obligation will be calculated by multiplying the monthly rental payment in effect at the time default is declared by the number of months remaining in the term of this agreement or any renewal thereof. ...”

The complaint reflected a total sum claimed as due, although neither the pleadings nor the lease attached to the complaint reveal either the date of default or the number of remaining months on the lease. These two straightforward facts are capable of proof. Liquidated damages are claimed from the date that ITT declared the lease in default for non-payment and terminated it.

Liquidated damages are allowed in Georgia. OCGA § 13-6-7. For a clause to comply with that section, three conditions must be met: 1) injury caused by the breach must be difficult or impossible of estimation, 2) the parties must intend to provide for damages, and 3) the sum stipulated must be a reasonable pre-estimate of the probable loss. Southeastern Land Fund, supra; Fortune Bridge Co. v. Dept. of Transp., 242 Ga. 531 (250 SE2d 401) (1978).

There is no error because on the face of the pleadings, there is no basis for the court to have decided that plaintiff could establish no set of facts under which it could recover. A clause similar to the one at issue had previously been upheld by this court. Military Armament Corp. v. ITT Terryphone Corp., 134 Ga. App. 694 (215 SE2d 724) (1975).

Since the ground relied on in support of the motion to dismiss was not included in the motion for directed verdict or for judgment n.o.v., there is nothing further to review in this regard.

3. Defendant urges error in the trial court’s asking questions of witnesses and making statements to the jury concerning the damages computation. See OCGA § 9-10-7. While there was a formula set out in the lease for computing damages, there was some confusion during trial as to the total claimed, because the contract price was somewhat different from that claimed in the complaint. The court sought to identify the exact amount of damages claimed so as to inform the jury as to the precise issue it had to decide in this regard. It also answered a question from the jury as to what the exact amount stated was.

No objection or motion for mistrial was made with regard to any of these instances. In the absence of an objection or motion for mistrial, an appellant cannot complain on appeal that he was prejudiced by such conduct. Walker v. Bishop, 169 Ga. App. 236, 242 (9) (312 SE2d 349) (1983); Ellis v. Cameron & Barkley Co., 171 Ga. App. 211, 212 (4) (319 SE2d 38) (1984).

4. In the final enumeration, defendant contends that the trial court’s granting of a supersedeas bond based upon a motion for same filed before the notice of appeal was filed was error. The plaintiff’s motion for supersedeas bond under OCGA § 5-6-46 was filed on March 25, before the notice of appeal was filed on August 11. The court did not rule on the motion until August 19. We fail to see how this ruling was untimely or how it adversely affected defendant. The bond required was $8,000; judgment was $6,362.20, plus $954.33 attorney fees, plus 12% interest. Had the motion been filed “timely,” using defendant’s definition of same, the court would have been required to set a bond of this general amount. OCGA § 5-6-46; Allied Productions v. Peterson, 233 Ga. 266, 268 (211 SE2d 123) (1974). The efficacy accorded to the motion by the court after the notice of appeal was filed, without requiring a new or renewed identical motion, was not reversible error.

It is axiomatic that the party seeking reversal must not only show error, but also injury arising from the alleged error. Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (6) (290 SE2d 328) (1982). Even assuming error, we find no harm. Vezzani v. Tallant, 121 Ga. App. 67, 68 (172 SE2d 858) (1970).

Decided June 19, 1987

Rehearing denied July 7, 1987.

Barbara S. McClellan, for appellant.

Teresa M. Wright, Therese G. Frazen, for appellees.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    74714.
    MILLER v. THE STATE.
    (359 SE2d 359)
   Banke, Presiding Judge.

Miller appeals his convictions of armed robbery, burglary, theft by taking and possession of a firearm by a convicted felon. Held:

1. The trial court did not err in denying the appellant’s motion to dismiss the charges against him based on his alleged lack of sufficient time to prepare a defense. In the first place, we are aware of no authority for the proposition that lack of sufficient time to prepare a defense ever constitutes ground for the dismissal of an indictment, as opposed to ground for the continuance of the trial. Secondly, it does not appear that the appellant ever moved for a continuance. Rather, it appears that, acting through retained counsel, he filed a demand for trial pursuant to OCGA § 17-7-170, at a time when he was incarcerated in Alabama on unrelated charges, and that his subsequent trial in Georgia occurred during the last term in which he could have been tried pursuant to OCGA § 17-7-170. Finally, we note that the appellant has not specified any harmful effect the alleged insufficiency of time might have had upon his defense of the case. A statement by counsel for the defendant that he has not had sufficient time to investigate and prepare the defense is, of course, a mere conclusion which is not sufficient to require the grant of a motion for continuance. See Miller v. State, 165 Ga. App. 487, 488 (1) (299 SE2d 174) (1983). This enumeration of error is without merit.

2. Appellant next enumerates as error the failure of the trial court to sever the charges for trial; however, the record does not reflect that the appellant ever moved for such a severance, either before or during the trial. Consequently, this enumeration of error presents nothing for review. See Poteat v. State, 251 Ga. 87, 90 (5) (303 SE2d 452) (1983).

3. The appellant contends that the theft conviction should have merged with the armed robbery conviction. The armed robbery involved the taking of currency at gunpoint from the immediate possession of a convenience store cashier who was attempting to make a nightly bank deposit, while the theft conviction involved the subsequent taking of the cashier’s automobile. Under such circumstances, “[t]he evidence establishing the commission of the one crime is not the same as the evidence which established commission of the other crime.” Holt v. State, 239 Ga. 606, 607 (238 SE2d 399) (1977). Accordingly, this enumeration of error is without merit. See Parrish v. State, 160 Ga. App. 601, 603-604 (2) (287 SE2d 603) (1981).

Decided June 15, 1987

Rehearing denied July 7, 1987.

Harry B. White, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, the appellant’s counsel asserts that he did in fact move for a severance of the charges but that the transcript of the hearing on the motion was not transmitted to this court. The record before us has been certified by the clerk of the trial court as complete, and neither the appellant’s original brief and enumeration of errors nor his motion for rehearing contain any citations to the record or transcript which would, in compliance with Rule 15 (c) of this court, suggest that any record of a motion for severance exists. In the absence of such citations to the record or transcript, and in the absence of any motion to supplement the record in accordance with OCGA § 5-6-41 (f), the motion for rehearing is denied.


text:
    73943.
    BYRD v. RIVENBARK.
    (359 SE2d 433)
   Pope, Judge.

Plaintiff appeals the grant of summary judgment to defendant Lisa Jo Rivenbark, as administratrix of the estate of Donald Hoke Rivenbark. The record shows that plaintiff’s decedent, Kermit Byrd, received fatal injuries when he was struck on the head by a tree limb located on the Rivenbark property. Although the facts concerning Byrd’s initial invitation onto defendant’s property are somewhat in dispute, for the purpose of this appeal it is stipulated that Byrd occupied the status of a business invitee, and the record shows that Byrd and others were on the property for the specific purpose of removing the tree limb, which had become partially detached during a storm. The record also shows that Byrd was struck on the head while attempting to accomplish this purpose.

On appeal, plaintiff argues that the trial court erred in granting summary judgment to defendant, based on Byrd’s equal knowledge of the danger presented by the broken limb. In support of her contention, plaintiff argues that “the Rivenbarks did possess superior knowledge of the tree’s condition in that they knew of the cause and date of the breaking of the tree limb,” information they allegedly did not provide to plaintiff’s decedent.

“The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully on the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. (Emphasis supplied.) ... An invitee who is as fully aware of the dangers and defects of the premises of the proprietor as is the proprietor himself, in coming on such premises assumes the risks thereon, and cannot recover from the defendant for injuries resulting by reason of such dangers and defects. (Emphasis supplied.)” (Punctuation omitted.) Harris v. Star Svc. &c. Co., 170 Ga. App. 816, 817 (318 SE2d 239) (1984); see also Amear v. Hall, 164 Ga. App. 163 (2) (296 SE2d 611) (1982); Jones v. Interstate North Assoc., 145 Ga. App. 366 (243 SE2d 737) (1978). Thus, “there is no obligation to protect the invitee against dangers or hazards which are known to him or which are so obvious and apparent he may reasonably be expected to discover them.” Amear, supra at 169.

Here it is undisputed that the hazard caused by the partially detached limb, which witnesses described as “broken over with the branches hanging over the ground,” was both obvious and known to Byrd, since he was invited onto the property for the express purpose of removing it. As to plaintiff’s argument concerning defendant’s alleged knowledge of the cause and date of the breaking of the limb, we fail to see, and plaintiff has failed to show, how such information constituted superior knowledge of the danger created by the detached limb or that informing Byrd of such facts would have altered his behavior in attempting to remove the detached limb, or would have enabled him to avoid the unfortunate events that occurred. In this regard, we are persuaded by the affidavit of William Strange, which was offered in support of plaintiff’s brief in opposition to defendant’s motion for summary judgment, in which Mr. Strange averred that “[w]hen the limb broke away from the main part of the tree, it did so in an unexpectantly [sic] sudden way and turned in an unusual and unexpected direction which resulted in the fatal injury to the head of Kermit Byrd.” Thus, it appears that the injury here resulted from an unexpected and unforeseeable circumstance. “One is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” (Citations and punctuation omitted.) Ramsey v. Mercer, 142 Ga. App. 827, 829 (237 SE2d 450) (1977). We find, therefore, that the record in the case sub judice demonstrates no issue of material fact concerning defendant’s liability for plaintiff’s decedent’s death; hence the trial court did not err in granting defendant’s motion for summary judgment.

Decided July 7, 1987.

Roy L. Allen, Jr., Kevin E. Perry, for appellant.

Carroll Van Reynolds, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: McMurray, Presiding Judge.

text:
    74031.
    74032.
    FORD v. THE STATE. BLAIR v. THE STATE.
    (359 SE2d 435)
   McMurray, Presiding Judge.

Defendant Ford appeals his conviction of the offense of burglary in Case Number 74031 and in Case Number 74032 defendant Blair appeals her conviction of the offense of theft by receiving stolen property (with a value exceeding $500). Held:

1. Defendant Ford contends the trial court erred in admitting in evidence his statement when the evidence in the Jackson-Denno (378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing strongly suggests that he did not understand his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). During the Jackson-Denno hearing, out of the presence of the jury, an investigator for the Sheriff’s Department testified that he spoke to defendant on April 15, 1986. The investigator stated that he advised defendant of his constitutional rights by reading the Miranda warnings from a printed form and that defendant appeared to understand those rights. However, defendant was not questioned at that time as he appeared to be intoxicated. The investigator spoke to defendant Ford again the following day, April 16, 1986. The investigator testified that at that time defendant Ford was again advised of his rights and subsequently gave the statement at issue. The investigator was asked, in relation to his again advising defendant Ford of his Miranda rights on April 16: “Did he appear to understand his rights then?” This enumeration of error is predicated upon the investigator’s negative response to this question. However, at trial before the jury, the investigator testified that after defendant was advised of his Miranda rights on April 16 defendant did appear to understand those rights. While the State suggests that the negative answer relied upon by defendant is “[apparently, ... a typographical error” there has been no attempt to correct the transcript as provided under OCGA § 5-6-41 (f). Nonetheless, in reviewing the trial court’s determination as to the voluntariness of defendant’s statement we must look to all of the evidence contained in the record. Stapleton v. State, 235 Ga. 513, 516 (1) (220 SE2d 269). Thus, the record presents a contradiction in the testimony of the investigator as to whether defendant appeared to understand his Miranda rights on April 16. This presented a factual issue for determination by the trial court. “It is axiomatic that factual and credibility determinations by the trial court as to the voluntary and intelligent waiver of a Miranda right will not be disturbed on appeal unless clearly erroneous. Evans v. State, 176 Ga. App. 818 (338 SE2d 48) (1985); McCright v. State, 176 Ga. App. 486 (336 SE2d 361) (1985).” Pierce v. State, 180 Ga. App. 847, 848 (1) (350 SE2d 781). In the cases sub judice, there was evidence to support the trial court’s ruling that the statement of defendant Ford was admissible.

2. The charges against defendant Blair are predicated upon her possession of a video cassette recorder (VCR) and a pistol taken in the burglary of which defendant Ford was convicted. The video cassette recorder was obtained by law enforcement officers during a search of defendant Blair’s house. Defendant Blair enumerates as error the denial of her motion to suppress the evidence found during the search of her home.

Two video cassette recorders were taken in the underlying burglary. In the affidavit for a search warrant one of the video cassette recorders identified by make, model and serial number, was included in the list of stolen goods believed to be concealed on the premises of defendant Blair’s home. The search warrant for defendant Blair’s home authorized the seizure of the fruits of the burglary, specifically including the video cassette recorder which was identified by make, model and serial number in the affidavit. Upon executing the search warrant the officers discovered that the video cassette recorder actually present in defendant’s home was not the one identified in the affidavit and warrant, but the other one which had been taken in the burglary. The officers then decided “to hold up on any search at the time ...” The sheriff’s investigator proceeded to obtain the sales receipt of the video cassette recorder actually found, which he took to the judge who had issued the search warrant, and whereupon the search warrant was altered with the approval of the issuing judge to show the identity of the video cassette recorder which had been found in defendant Blair’s home. Defendant Blair’s first argument in support of this enumeration of error challenges the above procedure apparently on the grounds that an impermissible second search was conducted under authority of the same warrant. See Delaney v. State, 135 Ga. App. 612 (218 SE2d 318). However, our interpretation of the circumstances which occurred is somewhat different. The sheriff’s investigator testified that he left an individual, apparently another law enforcement officer, at defendant Blair’s home while he left to accomplish the alteration of the search warrant. As a practical matter, the video cassette recorder was already seized when the alteration of the search warrant occurred. However, as the video cassette recorder actually found in defendant Blair’s home was found during a search for the video cassette recorder originally identified on the face of the search warrant when it was served, the search and seizure of the evidence at issue was legal. Whittington v. State, 165 Ga. App. 763 (302 SE2d 617); Dugan v. State, 130 Ga. App. 527, 531 (2) (203 SE2d 722). Under our view of the circumstances we need not address the issues arising from the alteration, or attempt to alter the search warrant.

Defendant Blair’s remaining arguments in regard to the motion to suppress are in support of her contention that under the totality of the circumstances there was no probable cause for the issuance of the search warrant. The sheriff’s investigator’s affidavit for search warrant sets forth as facts supporting the issuance of a search warrant: “Received information from a confidential informer that he has seen said merchandise in the past 24 hours. Informer states that he was told about the burglary by the offenders; Robert Blair and a person by the nickname of ‘Red,’ both black males.”

While the affidavit does not establish the reliability of the informant under the totality of the circumstances test this deficiency may be compensated for with a strong showing of some other factor establishing a reasonable cause for belief of the informant’s tip. In the cases sub judice, this is established by the contemporaneous nature of the information and by the informant’s personal observation of the stolen items. See Illinois v. Gates, 462 U. S. 213, 234 (103 SC 2317, 76 LE2d 527), and Felker v. State, 172 Ga. App. 492, 495 (4) (323 SE2d 817).

Defendant Blair also argues that the sheriff’s investigator took the information he obtained from an informant and “bolstered it by adding serial numbers and other pertinent information obtained from other sources,” the net effect being to reflect that information gained from several sources was given by a single confidential informant. However, affidavits for search warrants must be interpreted in a common sense and realistic fashion. State v. Babb, 134 Ga. App. 302 (214 SE2d 397); Driscoll v. State, 129 Ga. App. 702 (201 SE2d 11). Thus, when an affidavit states, as in the cases sub judice, that a confidential informant was told about a burglary by the perpetrators and has observed the merchandise which is the fruit of the crime we will commonly anticipate that such precise detail in the description of the stolen items as serial numbers (and model numbers where such are as prolific as they often are in consumer electronic devices) was more likely obtained from the victim (or some source connected with the victim) than from the informant. We do not believe the judge who issued this search warrant was misled. Nor do we see any harm to defendant Blair resulting even if there had been a misconstruction of the affidavit as under the facts established there was no lack of probable cause for issuance of the search warrant.

3. Defendant Blair contends that there was insufficient evidence to establish the value of the stolen goods she received was in excess of $500. The two items at issue are a video cassette recorder and a pistol. As to the video cassette recorder the State’s evidence is that the machine was purchased new approximately three years prior to the burglary for approximately $835, and the life expectancy of the machine was nine years, and that there was nothing wrong with the machine. A picture of the video cassette recorder was introduced into evidence. The stolen pistol was a Browning 9 millimeter which had been purchased new three days before the burglary. A law enforcement officer testified as to his opinion that the pistol had a value of $350 to $500 and that the purchase price of the pistol had been $475.

While there was no direct proof of the value of the video cassette recorder there was circumstantial evidence sufficient to permit a jury to determine its value. See Ragsdale v. State, 170 Ga. App. 448, 450 (317 SE2d 288). We note in this regard the jury’s awareness of the value of such “everyday objects” as video cassette recorders. Moore v. State, 171 Ga. App. 911, 912 (2) (321 SE2d 413). There was sufficient evidence for the jury to determine that the combined value of the goods in defendant Blair’s possession was in excess of $500.

4. Both defendants contend that one of the jurors should not have heard the cases sub judice as he was disqualified to sit therein because he had a preconceived prejudice and bias prior to the trial of the cases. Defendants argue that the juror in question failed to reveal when asked upon voir dire that he had been a victim of a theft, and cite Thomas v. State, 249 Ga. 339, 341 (290 SE2d 462) for the proposition that a party is entitled to rely on the juror’s answers upon voir dire absent actual knowledge of the incorrectness of those answers. The defendants’ position is thus predicated upon the supposition that the juror has been the victim of a theft. While defendants refer to the testimony of the juror at the hearing on their motions for new trial as providing proof in this regard, we find nothing in the juror’s testimony compelling such a conclusion. At the hearing on the motion for new trial, the juror continued to deny that he had ever been a victim of a theft and was questioned specifically in regard to several incidents. In one incident the juror informed a law enforcement officer that he had a gun missing. The juror testified, “I told him [the officer] I had a gun missing, went over to my boy’s and there is my gun, he brought it back home.” Another incident involved a chainsaw which was not found after the smokehouse in which it was stored burned down. In both incidents the juror had a discussion with a law officer regarding the missing item but in neither case did the juror report the item stolen. Therefore, we find that the trial court was authorized to conclude that there was no factual support for defendants’ contentions.

Decided July 7, 1987.

Samuel C. Finster, Sr., for appellant (case no. 74031).

Edward F. Hurley, for appellant (case no. 74032).

David L. Lomenick, Jr., District Attorney, David L. Whitman, Susan R. Sarratt, Assistant District Attorneys, for appellee.

Judgments affirmed.

Sognier and Beasley, JJ., concur.


text:
    74187.
    FULTON v. STATE OF GEORGIA.
    (359 SE2d 726)
   Beasley, Judge.

Fulton, claimant in an action by the state seeking forfeiture of a van and cash pursuant to OCGA § 16-13-49, appeals the denial of her motion to set aside a default judgment. We granted the application for discretionary appeal.

Fulton’s ex-husband was found dead in the van at a rest area in Gordon County on December 17, 1985. He had died from a cocaine overdose, and small amounts of marijuana and cocaine were found in the van and on his body. Also found was approximately $60,000 in cash. The libel for condemnation of the van and cash was filed January 15, 1986. Fulton’s claim and answer were filed on February 18. Extensive discovery was engaged in by Fulton, and a motion to suppress resulted. A lengthy hearing at which claimant appeared and testified was held on May 8 by a judge who was not the trial judge. Claimant also filed her proposed pretrial order.

The case was stipulated to the trial calendar on July 14, 1986, and appeared on the published trial calendar for the week of September 8 in position # 12. It is undisputed that on Friday morning, September 5, Sadow, counsel for Fulton, spoke both with the trial judge’s secretary and with the judge concerning the Monday calendar call and the fact that Sadow had a conflict with a Florida criminal case for that day. He was excused by the judge from appearing on Monday. He also spoke with the prosecutor handling the case and advised him of the problem. The prosecutor told Sadow that he was to be in the grand jury that week and also had problems. A “gentlemen’s agreement” was entered into by the two attorneys, both agreeing to advise the other of any news concerning the trial calendar’s progress. As of that Friday afternoon, the court believed that it had a one-day, a two-day, and a three-day case which would be tried in sequence beginning Monday. Sadow called twice from Miami on Monday and spoke with the judge’s secretary. She informed Sadow in the morning call that nothing had changed. During the afternoon call, she told him again it was the same but was subject to change. Sadow understood that, as of this point, having advised the court that his witnesses were a 16-hour drive away in Ohio, he was “on call” and would be given reasonable notice of the court’s placing the case on trial. The secretary stated at the hearing on the motion to set aside that she would “not presume to have that authority.”

The next day, Tuesday, Sadow checked with his office and was told that no call had been received from the court. He returned from Miami that afternoon and remained in his Atlanta office awaiting a call.

Tuesday morning the judge’s remaining two cases before Fulton’s settled. The grand jury bailiff so notified the prosecutor, who left the grand jury room and proceeded to the courtroom. The court sounded the case for trial. No one responded for Fulton. The court stated that it had advised Sadow in the conversation on Friday to be present and ready for trial after Monday. No one attempted to reach Sadow. The prosecutor moved to strike the claim and answer of claimant for failure to appear. The motion was granted and the court placed the case “into default and allow[ed] default judgment in favor of the State. . . .’’On Thursday the court entered its written order for judgment reflecting that upon failure to appear “upon the call of the case, . . . the defensive pleadings were stricken and a default judgment granted in behalf of Plaintiff.” Sadow learned that default had been entered when a witness called and informed him he had heard it on the radio. Fulton’s motion to set aside pursuant to OCGA § 9-11-60 was filed on Monday and subsequently denied.

OCGA § 16-13-49, under which this litigation was initiated, is a special statutory proceeding which must be strictly construed and complied with. Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983); State of Ga. v. Britt Caribe, Ltd., 154 Ga. App. 476, 477 (268 SE2d 702) (1980). As such, not all provisions of the Civil Practice Act apply. OCGA § 9-11-81. This is true with regard to OCGA § 9-11-55, the default judgment statute. “The disposition of unclaimed property . ... within thirty days is not a default judgment, inasmuch as the property is unclaimed and the judgment, if it is one, is against the property and there is no party in default.” State of Ga. v. Britt Caribe, Ltd., supra at 477-478. Although that case dealt with the attempted opening of a default, the rationale explained there applies to the attempted entry of a default after “striking” the claimant’s answer and claim as was done in this case.

The apparent legal basis for the court’s action, as reflected by the oral and written order entering the default, was the old “three minute rule” of former Code Ann. § 24-3341, which was repealed by the adoption of the new Uniform Superior Court Rules (253 Ga. 799 et seq.) effective July 1, 1985. Jones v. Jones, 256 Ga. 178 (345 SE2d 605) (1986). USCR 14 could not have been the basis for the court’s actions because it provides for dismissal of a pleading (not a final adjudication on the merits) “where appropriate” for failure to respond to a calendar call. Because this is a special statutory proceeding to which default is not applicable, this would not have been “appropriate.”

Now applicable to cases tried in superior courts with regard to trial calendars and call of cases are USCR 8.3 and 8.4. USCR 8.4 provides that “parties and counsel in the first 5 actions on the published trial calendar shall appear ready for trial on the date specified unless otherwise directed by the assigned judge. Parties in all other actions on the calendar are expected to be ready for trial but may contact the calendar clerk to obtain: (A) A specific date and time for trial during the trial term specified in the calendar; or (B) Permission to await the call by the calendar clerk of the action for trial upon reasonable notice to counsel.”

The rule does not mean the first five cases “to be tried” must appear the first day. It rather requires the presence only of the first five cases on the published calendar. Fulton’s was case #12 on that calendar and was not required to be in court on Monday, Sept. 8. Her counsel attempted to find out either a specific trial date or to obtain permission to be on call with reasonable notice. These are the two options provided by the rules, the purpose of which is to provide for the uniform and expeditious functioning of the courts of this state, so that the merits of each case may be reached and substantial justice may be done to the parties. See Cryomedics v. Smith, 180 Ga. App. 336, 337 (349 SE2d 223) (1986).

Since the 1986 amendment of OCGA § 9-11-60, both the equitable and legal grounds for setting aside a judgment are now included in that rule. See Bagwell v. Parker, 182 Ga. App. 313, 314 (2) (355 SE2d 463). Claimant urged as grounds for setting aside both the misapplication of the old “three minute” rule and the fact that, taking the court’s rendition of the phone conversation of Friday as accurate, counsel for plaintiff was operating under a mistaken impression concerning his “on call” status.

Decided July 7, 1987.

William Scott Schulten, Joseph L. Kelly, for appellant.

Darrell E. Wilson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Since the default judgment was not appropriate here and was entered after use of the repealed “three minute rule,” the order denying the motion to set aside is reversed, there having been a non-amendable defect apparent on the face of the record. OCGA § 9-11-60 (d) (3); Georgia Hwy. Express v. Whaley, 166 Ga. App. 662 (305 SE2d 411) (1983).

This renders unnecessary a ruling on the remaining enumerations.

Judgment reversed.

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

       Since this judge covered more than one county, it appears that his secretary handled his calendar since no clerk made any announcement or testified concerning this matter.


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

text:
    74270.
    CONWAY v. THE STATE.
    (359 SE2d 438)
   McMurray, Presiding Judge.

Defendant was convicted of the offenses of armed robbery, kidnapping and aggravated assault (with intent to rob). He appeals. Held:

1. In Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), the United States Supreme Court made it clear that a criminal defendant is entitled to effective assistance of counsel in the pursuit of his appeal rights. In so doing, the high court disapproved of the dismissal of a criminal defendant’s first appeal as of right. See DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170). Following Evitts v. Lucey, supra, we have endeavored to make every effort to decide criminal appeals on the merits. Id. But see Knox v. State, 180 Ga. App. 564 (349 SE2d 753). We think the merits should be considered in this case.

The trial judge determined that “good and sufficient reason” was shown by defendant to allow an out-of-time appeal. In the absence of any record demonstrating the absence of an appropriate showing by defendant, “we must assume the trial court’s grant of the out-of-time appeal was proper. Smith v. State, 160 Ga. App. 26 (285 SE2d 749) (1981).” Moore v. State, 176 Ga. App. 882, 883 (339 SE2d 271). Such an assumption is most appropriate where, as here, the state does not object to the out-of-time appeal.

2. Defendant complains that the trial court erroneously permitted a fingerprint expert to discuss fingerprinting techniques. He asserts the evidence was irrelevant and immaterial and that it should have been ruled out upon timely objection. We disagree. We cannot say the trial court abused its discretion by admitting the evidence. “The Georgia rule favors admission of any relevant evidence no matter how slight its probative value. Agnor’s Ga. Evidence, 165, § 10-2. Further, admission of irrelevant evidence is not ground for reversal unless the defendant can show how the evidence was prejudicial to him. Defendant has shown no prejudice.” Wireman v. State, 163 Ga. App. 439, 442 (295 SE2d 530).

3. Defendant contends the trial court erred by refusing to give his requested charge on impeachment. He also contends it was error to refuse to give a requested charge that a prior inconsistent statement is admissible as substantive evidence. See Gibbons v. State, 248 Ga. 858 (286 SE2d 717). These contentions are without merit. Defendant has failed to point to any impeachment in the transcript and we find none. Attempts may have been made to impeach one of the victims; but those attempts failed. The “time, place . . . and circumstances attending the former statements [were not] called to [the victim’s] mind with as much certainty as possible.” OCGA § 24-9-83. See also Smith v. State, 171 Ga. App. 758, 762 (321 SE2d 213). Moreover, with regard to the requested Gibbons v. State, supra, charge, we fail to see how defendant was prejudiced by the refusal of the trial court to give it. “Absent instructions to. the contrary, the jury surely regarded substantively all the evidence presented to it.” Ford v. State, 255 Ga. 81, 87 (335 SE2d 567).

4. The evidence presented by the prosecution was sufficient to enable any rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Birdsong, C. J., Sognier and Benham, JJ., concur. Deen, P. J., Carley and Pope, JJ., concur specially. Banke, P. J., and Beasley, J., dissent.

Carley, Judge,

concurring specially.

I concur in the majority’s determination that we must consider this case on the merits rather than dismiss the appeal. However, I do not agree with the majority’s conclusion at the beginning of Division 1 that such consideration of the merits is mandated by Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985). Rather, this Court has jurisdiction because the trial court granted an out-of-time appeal.

I must opine that this Court has been less than clear and consistent in delineating when we will consider a criminal case on its merits rather than dismiss the same because of the late filing of a notice of appeal. For example, in Rimes v. State, 182 Ga. App. 721 (356 SE2d 897) (1987), a whole court case, the appeal was dismissed for lack of jurisdiction in view of an untimely filing of a notice of appeal. However, in Johnson v. State, 183 Ga. App. 168 (358 SE2d 313) (1987), another whole court case, the majority of this Court refused to dismiss an appeal for untimely filing and considered the case on its merits. However, neither Johnson nor Rimes is applicable to this case because in neither did the trial court grant an out-of-time appeal. Here, the trial court granted an out-of-time appeal and we must consider the merits.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this special concurrence.

Beasley, Judge,

dissenting.

I respectfully dissent because it appears that the Court does not have jurisdiction of the case.

Defendant was sentenced on February 5. Upon receipt on February 13 of a letter to the court from trial counsel, the court appointed the Fulton County Public Defender’s Office to represent defendant “in any and all appeals from this date forward.”

A motion for new trial was filed March 3 by new counsel, and defendant pro se filed an amendment July 23. In the meantime, sentence review was undertaken at the request of defendant, who filed the application on February 18.

The trial transcript was filed August 22, and the motion for new trial was denied on September 18. No extension of time for filing a notice of appeal was sought, as is provided for in OCGA § 5-6-39 (a) (1), (c), and (d).

A document titled “Out-of-Time Notice of Appeal,” signed by appellate counsel, was filed December 9, and on the same day the court ordered it permitted. No reason was given for the out-of-time filing or for the granting of the same, nor was any motion made in this connection. The time requirements of OCGA § 5-6-38 (a) were not followed here.

“ ‘A person convicted of a crime in a trial court in this state is not entitled to have his conviction reviewed as a matter of right by an appellate court.’ ” Mobley v. State, 162 Ga. App. 23 (1) (288 SE2d 702) (1982). Neither is there a federal constitutional right to appeal. McKane v. Durston, 153 U. S. 684 (14 SC 913, 38 LE 867) (1894), reiterated in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985).

Decided July 7, 1987.

Drew Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Assistant District Attorney, for appellee.

The Georgia Constitution states: “Review of all cases shall be as provided by law.” Ga. Const. 1983, Art. VI, Sec. VI, Par. III. See also Ga. Const. 1983, Art. VI, Sec. V, Par. III. It is elementary that “[t]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. [Cit.]” Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986). The principle is firmly fixed. Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530) (1972); Pittman v. State, 229 Ga. 656, 657 (193 SE2d 820) (1972). The criminal defendant “ ‘must pursue applicable statutory requirements.’ [Cit.]” Mobley, supra. Otherwise the appeal is to be dismissed. Smith v. State, 140 Ga. App. 492 (231 SE2d 493) (1976).

It is true that this Court will, for proper reasons, entertain an out-of-time appeal, such as where the record shows that counsel did not inform defendant of the right to appeal, Kreps v. Gray, 234 Ga. 745, 747 (218 SE2d 1) (1975), or of the period during which a notice of appeal must be filed, Mobley, supra. There is nothing in the record which even hints at any reason for the delay, not even a skeletal statement of the trial court such as prompted us to take jurisdiction in Moore v. State, 176 Ga. App. 882, 883 (339 SE2d 271) (1985).

Allowing “out-of-time” appeals as a matter of course, without any reason being assigned to justify departure from the jurisdictional rules of appellate practice mandated by the legislature, not only ignores those rules, it also violates the rights of the opposite party to orderly and prompt final disposition of the case. Insofar as criminal cases are concerned, the public as well as a convicted defendant has an interest in timely final resolution. The public is entitled to “swift and sure punishment,” where appropriate. The concept of expedition is now contained in the state constitution, which requires uniform court rules and record-keeping rules “which shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.” Ga. Const. 1983, Art. VI, Sec. IX, Par. I.

Conway is not asserting any error of counsel in perfecting this appeal which might mandate this court to examine the merits under the authority of Evitts v. Lucey, supra. See Knox v. State, 180 Ga. App. 564 (349 SE2d 753) (1986).

Considering the law and these circumstances, the appeal should be dismissed.


text:
    74331.
    BRYANT v. NATIONWIDE INSURANCE COMPANY.
    (359 SE2d 441)
   Pope, Judge.

Appellant Lenard Bryant filed suit on November 8, 1985 against appellee Nationwide for failure to honor a claim for a loss incurred November 11, 1984 as a result of a break-in and theft in the place of his business, which was insured under a policy issued by Nationwide. During discovery pending trial, Nationwide took Bryant’s deposition and propounded a request for production of documents in March of 1986. Bryant submitted cash account records for each day for several months preceding and following the burglary. On April 23, 1986 Nationwide served Bryant interrogatories and a second request for production of documents, indicating by cover letter to his attorney that the “shift change cash count forms” for the days of November 10 and 11, 1985, the time of the burglary, were missing and that Bryant had stated during his deposition that he had these forms and would provide copies. After Bryant failed to respond to the interrogatories and the second request to produce documents, another letter was sent to his attorney dated July 16, 1986 in a “good faith attempt to resolve this discovery dispute.” Bryant was also advised by this letter that Nationwide would not pay any more of his $6,000 claim than what he could “document in the way of receipts and proof.”

When no response or objection was received, Nationwide on August 14, 1986 moved to dismiss Bryant’s complaint for failure to answer the interrogatories and discovery request. Bryant filed a response to the motion contending that the interrogatories did not seek any information pertinent or relevant to the subject matter of the suit, that during the period his responses to the interrogatories were due the parties were engaged in negotiating a settlement, and that all the questions that were asked in the interrogatories had been answered in his deposition. He requested that the motion be denied and offered at that time to respond “fully and completely to the interrogatories as it now appears that the case will not settle and notwithstanding the fact that [Nationwide] has the information sought.” The trial judge granted the motion to dismiss with prejudice and Bryant appeals.

Since Bryant’s deposition is not in the record on appeal, we are unable to determine whether or not the information sought in Nationwide’s interrogatories was provided in the deposition. Nor does it appear from the record that the essential cash count forms of November 10 and 11, 1985, were ever provided. Nationwide denies that any settlement was being negotiated and again there is nothing in the record to indicate otherwise. Nevertheless, Bryant insists that the dismissal of his suit was too severe a sanction to be imposed under the circumstances, and that the trial court abused its discretion in doing so because OCGA § 9-11-37 (b) (2) allows a dismissal of the complaint only after a failure to comply with a motion to compel.

However, OCGA § 9-11-37 (d) (1) provides that “[i]f a party . . . fails to serve answers or objections to interrogatories . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b) (2) (A) through (b) (2) (C) of this Code section.” Under OCGA § 9-11-37 (b) (2) (C) the court may dismiss the action or proceeding or any part thereof, or render a default judgment against the disobedient party. Thus, the failure of a party either to respond to interrogatories or to seek a protective order authorizes the imposition of immediate sanctions without the preliminary necessity of an order to compel. Vlasz v. Schweikhardt, 178 Ga. App. 512 (2) (343 SE2d 749) (1986). Compare Joel v. Duet Holdings, 181 Ga. App. 705, 706-07 (353 SE2d 548) (1987). See also Smith v. Nat. Bank of Ga., 182 Ga. App. 55 (2) (354 SE2d 678) (1987). Once a motion for sanctions has been filed, their imposition cannot be precluded by a belated response made by the opposite party. Vlasz v. Schweikhardt, supra at 516.

The question, then, is whether the trial court abused its broad discretion in imposing this sanction. Carey Canada, Inc. v. Hinely, 181 Ga. App. 364 (3) (352 SE2d 398) (1986), rev’d on other grounds, 257 Ga. 150 (356 SE2d 202) (1987). “The authorization of immediate sanctions under [OCGA § 9-11-37 (d)] has been construed to apply to nothing ‘less than a serious or total failure to respond to interrogatories.’ [Cits.] Thus, a total failure to serve answers or objections would constitute a failure to respond under 37 (d) and would subject a party to immediate sanctions.” Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 439 (254 SE2d 825) (1979). “Under the circumstances of this case, the trial court was authorized by OCGA §§ 9-11-37 (b) (2) (C) and 9-11-37 (d) (1) to dismiss [Bryant’s] complaint based upon [his] total failure to answer or to properly object. [Cits.] Under the discovery provisions of the Civil Practice Act, the trial [court] is granted broad discretion. Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of such discretion in absence of abuse. [Cits.] We find no abuse of the trial court’s discretion.” Tompkins v. McMickle, 172 Ga. App. 62, 64 (321 SE2d 797) (1984).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

Decided July 7, 1987.

R. David Ware, for appellant.

William D. Strickland, for appellee.