author: Andrews, Judge.

text:
    A93A1196, A93A1199, A93A1200.
    JACOBSEN v. HALDI et al. (three cases). HALDI v. JACOBSEN. BOYLE v. JACOBSEN.
    A93A1197.
    A93A1198.
    (437 SE2d 819)
   Andrews, Judge.

Jacobsen sued Haldi, Haldi P. C. and Boyle for legal malpractice claiming they mishandled her previous claims against Muller, a psychologist, and his employer, Drake Beam Morin, Inc. for professional malpractice and breach of contract. The facts supporting the present action and Jacobsen’s previous claims are set forth in Jacobsen v. Boyle, 196 Ga. App. 411 (397 SE2d 1) (1990) (reversing summary judgment granted to Boyle), and Jacobsen v. Muller, 181 Ga. App. 382 (352 SE2d 604) (1986) (affirming summary judgment granted to Muller and Drake Beam Morin, Inc.). After a jury awarded Jacobsen $902,000 on her legal malpractice claim, the trial judge entered judgment for the reduced amount of $375,000 pursuant to OCGA § 51-12-12. In Case Nos. A93A1196, A93A1199, and A93A1200, Jacobsen appeals, pro se, from the reduced judgment and other orders entered by the trial court. In Case No. A93A1197, Haldi cross-appeals from the trial court’s denial of motions for a directed verdict, and for judgment n.o.v., and in Case No. A93A1198, Boyle cross-appeals from the trial court’s denial of his motion for judgment n.o.v.

1. We first address Jacobsen’s appeal and enumerations of error in Case No. A93A1196 claiming the trial court erroneously entered judgment for the reduced sum of $375,000 pursuant to OCGA § 51-12-12. After the jury returned a verdict in favor of Jacobsen for $902,000, the trial judge initially entered a judgment for that amount on October 11, 1991. Within 30 days after entry of the judgment, the defendants moved pursuant to OCGA § 9-11-50 (b) for judgment n.o.v., or alternatively, for a new trial. Under OCGA § 9-11-50 (b) “[i]f a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” Thereafter, the trial court entered an order on June 5, 1992 reopening the judgment, and determining pursuant to OCGA § 51-12-12 that the jury’s award of $902,000 was so excessive as to be inconsistent with the preponderance of the evidence. Under OCGA § 51-12-12, a trial judge who determines that a jury award is clearly excessive has three options: “(1) grant a motion for a new trial; (2) grant a motion for new trial as to damages only; or (3) conditionally grant a motion for a new trial. The third option gives the trial judge the opportunity to give the litigants the benefit of his or her trial experience and to spare the parties the expense and trouble of a new trial. Under this provision of the statute, the trial judge calculates an appropriate damage award. The parties then have an opportunity to accept the trial court’s award and end the case, or reject it and proceed with a new trial.” Spence v. Maurice H. Hilliard, Jr., P. C., 260 Ga. 107, 108 (389 SE2d 753) (1990). Acting pursuant to the third option, the trial judge further determined that $375,000 was an appropriate damages award, and gave the parties an opportunity to accept or reject the $375,000 award. The record reflects that all the defendants accepted the $375,000 award. The trial court’s June 5, 1992 order provided that Jacobsen had until October 5, 1992, “to notify the Court in writing by a pleading filed with the Clerk ... if she declines to accept this new Judgment amount,” and provided that the failure to decline by filing a timely written objection would be deemed acceptance of the reduced damages award as final judgment. The order further conditionally granted the defendants’ motion for a new trial if the plaintiff declined to accept the reduced damages award.

On October 5, 1992, while still represented by her attorney of record, who had represented her throughout the trial of the case, Jacob-sen, pro se, filed a pleading seeking to set aside the trial court’s June 5, 1992 order, and which apparently was an objection to the trial court’s reduction of the damages award. Jacobsen recognized in the October 5 pleading that she continued to be represented by counsel of record. On October 22, 1992, Jacobsen’s attorney filed a notice of intent to withdraw as attorney of record, and informed Jacobsen of his intent to withdraw. Jacobsen immediately filed a written objection opposing any withdrawal of her attorney of record. While continuing to object to withdrawal of her attorney of record, Jacobsen, pro se, also filed a motion citing disagreements with her attorney of record, seeking permission to sign her own pleadings whenever necessary to protect her interests, and further seeking an order to retroactively amend previous pro se filings by adding the name and signature of her attorney of record.

On November 3, 1992, the trial judge entered an order denying and refusing to accept Jacobsen’s pro se October 5, 1992 objection to the reduced damage award, and her pro se motion seeking permission to file pro se pleadings while represented by counsel of record. Although the trial court based its ruling on the failure of the pro se pleadings to contain the signature of the attorney of record (see OCGA § 9-11-11), we find the trial court’s refusal to accept the pro se pleadings is supported by the 1983 Constitution of Georgia, Art. I, Sec. I, Par. XII, which provides that, “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Under the constitutional provision, “a layperson does not have the right to represent himself and also be represented by an attorney. ...” Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989); Cherry v. Coast House, Ltd., 257 Ga. 403, 405-406 (359 SE2d 904) (1987). Despite her apparent disagreement with counsel of record, Jacobsen cannot attempt to represent herself by filing pro se pleadings, while at the same time she is represented by counsel of record. “[T]he court is not required to accept random appearance and filings by both the client and his attorneys. The court has the power ‘(t)o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto. . . .’ OCGA § 15-1-3 (4). The power to insure the orderly disposition of matters before it is within the general powers of every court.” Cherry, supra at 406. We find no error in the trial court’s refusal to accept Jacobsen’s pro se filings, and no merit in Jacobsen’s enumerations of error 34, 35, 37, and 38 contending otherwise.

The trial court’s November 3, 1992 order also properly concluded that in the absence of a timely filed pleading rejecting the $375,000 reduced damages award, it became the final judgment in the case accepted by the parties for the purpose of ending the litigation. Spence, supra. The trial judge’s actions determining that the jury award was excessive, calculating an appropriate damages award, and giving the parties an opportunity to accept or reject the trial court’s award, were a proper exercise of the trial court’s discretion within the authority of OCGA § 51-12-12. Accordingly, we find no merit in Jacobsen’s enumerations of error 8 through 15, 18, 20 and 36, claiming various errors in relation to the reduced damages award.

2. As to enumerations of error 16, 17, and 19, claiming the trial court erred by granting the defendants’ motions for judgment n.o.v. or new trial, the record reflects that no such motions were granted.

3. Enumerations of error 1 through 6; 21 through 31, and 33, 40, and 41 deal with trial matters rendered moot by the parties’ acceptance of the trial court’s reduced damages award as an end to the litigation. See Division 1, supra; Spence, supra.

4. We find no error in the trial court’s order allowing withdrawal of Jacobsen’s attorney of record, especially since Jacobsen discharged the attorney. Enumeration 42 is without merit.

5. As to enumerations of error 32 and 39, claiming the trial judge demonstrated a pattern of partiality and should have granted Jacob-sen’s motions for recusal, we find no bias, and no error.

6. As to Jacobsen’s claim in enumeration of error 7 with respect to division of costs for preparation of the trial transcript and record on appeal, the record reflects that after Jacobsen filed an affidavit of indigency, the trial court ruled that it would assume, without deciding, that Jacobsen was currently indigent, and would be allowed to proceed in forma pauperis as to the costs of preparation of the record for appeal. However, the trial court noted that the $375,000 judgment had been paid by the defendants into the registry of the court, and that if the validity of the reduced damages awarded by the trial court was affirmed on appeal, Jacobsen would not have indigent status, and the trial court would reassess costs at that time. As to Jacobsen’s motion for equal division of the costs of the trial transcript filed as part of the record on appeal, the record is unclear as to the status of payment of this expense. We note that a pauper’s affidavit would not release Jacobsen of her responsibility (see Brand v. Montega Corp., 233 Ga. 35 (209 SE2d 583) (1974)), and that she may be entitled to a court order dividing such costs with cross-appellees. See OCGA § 5-6-38 (b); Van Geter v. Housing Auth. of Atlanta, 167 Ga. App. 432, 433 (306 SE2d 707) (1983). Accordingly, upon the return of the remittitur in this case, the trial court shall inquire into the financial status of Jacobsen, and determine her responsibility for payment of costs and transcript preparation.

7. Jacobsen’s motion in this court for supersedeas bond is denied.

8. Jacobsen’s appeals in Case Nos. A93A1199 and A93A1200 are from non-final orders in the case, apparently filed out of an over abundance of caution, and are not accompanied by any separate enumerations of error. We have addressed the only enumerations of error raised by Jacobsen. Accordingly, both of these appeals are dismissed. Vowell v. Carmichael, 235 Ga. 410 (219 SE2d 735) (1975).

9. In Case Nos. A93A1197 and A93A1198, Haldi and Boyle cross-appeal from the trial court’s refusal to grant a judgment n.o.v., or a directed verdict. The enumerations of error in these cross-appeals are rendered moot by the parties’ acceptance of the trial court’s reduced damages award in the amount of $375,000 as the final judgment ending the litigation. See Division 1, supra; Spence, supra. Accordingly, both of these cross-appeals are dismissed as moot. OCGA § 5-6-48 (b) (3).

Decided October 20, 1993

Reconsideration denied November 9, 1993

Madeleine Jacobsen, pro se.

Glenville Haldi, pro se.

Freeman & Hawkins, H. Lane Young II, Thomas F. Wamsley, Jr., for Boyle.

Judgment affirmed with direction in Case No. A93A1196. Case Nos. A93A1197, A93A1198, A93A1199, and A93A1200 dismissed.

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

       None of the defendants contest their acceptance of the $375,000 award, and, in fact, the defendants paid the entire $375,000 into the registry of the trial court on October 14, 1992.

       After counsel of record initiated withdrawal procedures, Jacobsen opposed his attempt to withdraw. Subsequently, Jacobsen notified her attorney of record by letter dated November 7, 1992 that he was discharged, and on November 9, 1992 filed a pleading notifying the trial court that she had discharged her attorney of record, and would represent herself pro se. On December 22, 1992, noting Jacobsen’s discharge of her attorney, the trial court granted counsel’s motion to withdraw as attorney of record. Nevertheless, Jacobsen filed objections to the withdrawal order claiming that her discharge of the attorney was not an agreement that he should be permitted to withdraw. There was evidence Jacobsen suffered from a form of depressive mental illness and was under psychiatric care. Out of concern for Jacobsen’s mental stability, the trial judge appointed an independent guardian ad litem to investigate whether Jacobsen was capable of making competent and intelligent decisions regarding the prosecution of the case, or whether a guardian of her person or property should be appointed. The guardian ad litem reported to the trial court that no such appointment was necessary. It is clear that the trial judge in this case exercised an abundance of caution in determining that Jacobsen was fully capable of cooperating with her attorney in the prosecution of the case prior to ruling that her pro se filings would not be accepted.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A1263.
    MITCHELL v. LUCAS.
    (437 SE2d 792)
   Birdsong, Presiding Judge.

Marshall L. Mitchell d/b/a Marshall Mitchell & Associates, pro se, appeals from the trial court’s judgment enforcing the settlement of his claims against Leonard Lucas for slander and tortious interference with contract. Although the settlement was announced during a recess in the trial and the jury was discharged by the trial court, Mitchell later refused to sign the agreement because Lucas’ attorney had received a levy on the settlement proceeds from the Internal Revenue Service and because the agreement provided that the terms of the settlement did not provide for complete confidentiality of the agreement. After Lucas moved to enforce the agreement and Mitchell moved to hold the agreement void, the trial court issued orders granting Lucas’ motion and denying Mitchell’s. Mitchell now appeals from that judgment. Held:

Although expressed in several enumerations, Mitchell’s primary contention is that the trial court erred by finding the parties had reached a conclusive, certain, and complete agreement to settle the case. Instead, Mitchell contends the agreement was not final as to all of the provisions and because Lucas’ counsel had to prepare the written settlement agreement.

The record shows, however, that during the presentation of Mitchell’s case, the parties advised the trial court that settlement was a possibility. After the parties retired for further discussion, they advised the court that they had reached a settlement which provided Mitchell would receive a sum certain in return for dismissal of his claims against Lucas. Lucas’ attorney was directed by the court to prepare the settlement document. Thereafter, the trial court dismissed the jury because the case was settled.

Decided August 26, 1993

Reconsideration denied November 9, 1993

Marshall L. Mitchell, pro se.

Rogers & Hardin, Richard H. Sinkfield, Jennifer D. Roorback, for appellee.

The record does not show that Mitchell objected to the dismissal of the jury or that he contended then that the case had not been settled. Instead, it was not until he learned that the Internal Revenue Service would receive the settlement proceeds under a tax levy that Mitchell expressed objections.

The basic considerations in these cases are stated in Reichard v. Reichard, 262 Ga. 561, 564 (423 SE2d 241): Oral settlement agreements are enforceable if their existence is established without dispute; all the essential terms must be agreed upon; the judgment must accurately reflect the settlement reached by the parties; and the courts are not authorized to adopt and incorporate into the judgment substantive terms not contained in the agreement between the parties. Further, it is not contended that the settlement was unauthorized. See Addley v. Beizer, 205 Ga. App. 714 (423 SE2d 398); Lewis v. Uselton, 202 Ga. App. 875 (416 SE2d 94).

We find that the judgment here meets those criteria. Mitchell does not dispute, and in fact admitted, that they reached a settlement of the case. Further, the essential terms resolving the dispute were agreed upon: Mitchell would receive a certain sum from Lucas, he would dismiss his claims against Lucas, and the terms of the agreement would remain confidential. Neither the IRS levy upon the settlement proceeds nor the written agreement’s provision that the agreement would be confidential unless disclosed as required by subpoena, order, or law and proceedings brought to enforce the terms of the agreement, alters the substance of the agreement reached in court. Mitchell does not contend that Lucas’ attorney could ignore the tax levy and any agreement to act contrary to the law would be void. See OCGA § 13-3-5; Curtis v. Girard Fire &c. Co., 190 Ga. 854 (11 SE2d 3).

Accordingly, as the parties entered into a definite, certain, authorized and unambiguous settlement agreement, the trial court did not err by making that agreement the judgment of the court. Dover Realty v. Butts County &c., 202 Ga. App. 787, 788 (415 SE2d 666).

Judgment affirmed.

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


text:
    A93A1346.
    COMMERCIAL UNION INSURANCE COMPANY v. GIBSON.
    (437 SE2d 808)
   Birdsong, Presiding Judge.

Pursuant to our grant of an interlocutory appeal, Commercial Union Insurance Company appeals from the order of the trial court denying its motion for summary judgment based upon improper service of process. This is an uninsured motorist action and, although the uninsured motorist was properly served, Commercial Union contends that it was not properly served as the uninsured motorist carrier because service was not made upon one of its authorized agents for receiving service, but instead was made upon an independent insurance agent. Gibson contends, however, that service was properly made upon an agent of Commercial Union. Held:

1. The record shows that service was upon an independent insurance agent who, although authorized to request and receive orders for insurance on behalf of Commercial Union, was not an employee of Commercial Union. Moreover, the record shows that the person served was an independent agent who represented numerous insurance companies, but who had no relationship with Commercial Union other than to sell its policies.

“Agent,” used in the sense of OCGA § 9-11-4 (d), applies only to agents that have some sort of controlling authority and are vested with authority to create obligations on behalf of their principal. Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App. 635, 638-639 (182 SE2d 153). It is clear from the record that this independent insurance agency had no such authority. Further, the cases upon which Gibson relies are inapposite as they concern agents who were also employees of the principals, who served only one principal or who worked in the principal’s office. In particular, the agents were not independent insurance agencies who represented various insurance companies. Therefore, under the circumstances, this case is controlled by Standard Guaranty Ins. Co. v. Landers, 206 Ga. App. 803, 805 (426 SE2d 574). Service must be made upon an actual agent of the company, and not one who merely orders or sells its policies. Accordingly, the trial court erred by denying Commercial Union’s motion to dismiss and the judgment must be reversed.

2. As there was no proper service in this case and the period of limitation expired without proper service, the trial court is directed to dismiss the action. Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853); Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416).

Decided September 27, 1993

Reconsideration denied November 9, 1993

Watson, Spence, Lowe & Chambless, Stephen S. Goss, for appellant.

Harris & James, John E. James, Lisa D. Neill-Beckmann, for appellee.

Judgment reversed with direction.

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


text:
    A93A1393.
    HILL et al. v. JOHNSON.
    (437 SE2d 801)
   Birdsong, Presiding Judge.

George Hill, Jr., and Creative Mortgage Brokers appeal from the entry of a default judgment in favor of Joseph Earl Johnson for $2,500 special damages, $136.51 interest, and $25,000 punitive damages. Appellants contend the trial court erred by denying a motion for new trial that asserted punitive damages were unauthorized because the court did not first make a specific finding that the award of punitive damages was proper on a verdict form as required by OCGA § 51-12-5.1. Held:

Johnson’s complaint against Hill and Creative Mortgage Brokers alleged that in response to their advertisements he met with Hill about securing a loan for $32,000 to purchase property, and in return for a $2,500 payment from Johnson, Hill agreed to secure the loan for Johnson. Hill received the $2,500 and gave Johnson a receipt stating that the money would be held in escrow for 45 days, and that if the loan was not obtained the sum was refundable in full. Although no loan was secured and Hill promised on numerous occasions to return the money, Hill did not refund the $2,500.

The complaint further alleged that Hill was indebted to Johnson in the amount of $2,500; that Hill defrauded Johnson; that Creative Mortgage Brokers affirmed and ratified Hill’s actions; that Hill’s actions were evidence of wilful misconduct or fraud, wantonness, oppression, or the entire want of care which would raise the presumption of conscious indifference to consequences; and further that “such actions merit the award of punitive damages to plaintiff under OCGA § 51-12-5.1.” Additionally, the complaint specifically prayed for the imposition of $25,000 in punitive damages as required by OCGA § 51-12-5.1. Although this complaint was served upon the defendants, no answer or responsive pleading was ever filed by either defendant.

Thereafter, the court issued a default judgment reciting that as the defendants had failed to answer within the time prescribed by law and that the default was not opened within the grace period as a matter of right, judgment on liability was entered against both defendants. The trial court’s judgment also recited that damages would be assessed after a hearing. Although notified that a hearing on damages would be held, the defendants did not appear at the time and place designated for the hearing. Thereafter, the hearing was conducted, evidence received, and judgment entered for Johnson.

Appellants contend the award of punitive damages must be reversed because the lower court did not follow the exact procedures specified in OCGA § 51-12-5.1 by making a specific finding on a verdict form that punitive damages were authorized. See OCGA § 51-12-5.1 (d) (1). Assuming without deciding that it is always error for the trial court not to comply exactly with the requirements of OCGA § 51-12-5.1 in a default judgment action (see Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656 (402 SE2d 753)), we find the failure to do so in this case was harmless error.

The allegations in the complaint summarized above, including the statement that “such actions merit the award of punitive damages to plaintiff under OCGA § 51-12-5.1” must be taken “as if every item and paragraph of the complaint . . . were supported by proper evidence” (OCGA § 9-11-55 (a)), coupled with the default judgment granting judgment to Johnson on liability, are sufficient to satisfy the requirement in OCGA § 51-12-5.1 (d) that “the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made.” Further, the record shows that prior to awarding the punitive damages, the trial court conducted a separate hearing and received evidence on damages thereby satisfying both OCGA §§ 51-12-5.1 and 9-11-55 (a). Therefore, we find that appellants were not harmed by the procedures used by the trial court. Consequently, as an appellant must show harm as well as error to prevail on appeal (OCGA § 9-11-61; Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892); Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328)), we find that appellants’ claims are without merit.

Moreover, we find this case to be distinguishable from Chrysler Credit Corp. v. Brown, supra. In this case the only deviation from the statute was the failure of the trial court to recite in the default judgment what was evident from the complaint, i.e., that an award of punitive damages should be made. In all other particulars, the default judgment and the judgment met the criteria established in OCGA § 51-12-5.1. Further, we have previously held that compliance with OCGA § 51-12-5.1 can be waived and that one cannot acquiesce in deficient procedures and then contest them on appeal (Shaw v. Ruiz, 207 Ga. App. 299, 300-301 (428 SE2d 98)), and we cannot ignore the fact that Hill contributed to this deviation by his failure to participate in these proceedings despite being given notice of the damages hearing, and he failed to dispute Johnson’s entitlement to punitive damages as prayed for.

Decided September 16, 1993

Reconsideration denied November 9, 1993.

Swift, Currie, McGhee & Hiers, W. Allen Evans, for appellants.

Edward B. Stalnaker, for appellee.

Judgment affirmed.

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


text:
    A93A1591.
    MOJICA v. THE STATE.
    (437 SE2d 806)
   Birdsong, Presiding Judge.

After she was convicted in a bench trial of theft by shoplifting, Joy Ann Mojica filed this appeal. The record shows that Mojica was earlier convicted of this offense, but her conviction was set aside by the trial court sua sponte. Upon retrial of the case, the trial court relied upon the waiver of a jury trial executed prior to her first trial, and, after the trial court denied a motion to allow her counsel to withdraw and a motion for a continuance, the case proceeded to trial and another guilty verdict was returned.

Mojica contends the trial court erred by denying her right to a jury trial, by relying upon her first waiver, by allowing the solicitor to abuse her counsel, and by not permitting her counsel to withdraw from the case. Held:

1. Mojica’s first enumeration contends the trial court erred by trying her case without a jury because she did not make a knowing and intelligent waiver of her right to a jury trial. The premise of this argument is that because this waiver of her right to trial by jury was somehow defective, the trial judge in her first trial granted her a new trial. Review of the transcript of the first trial, which is a part of the record of this appeal, shows that the grant of the new trial was not based upon any deficiency in Mojica’s waiver of her right to a jury trial. Instead, the argument of her first trial defense counsel focuses on his lack of preparation of her case. Therefore, as the waiver shows that it was executed by Mojica after it was read to her by the trial judge and there is no evidence in the record claiming that she did not understand the right being waived, the trial judge did not err by finding that Mojica had waived her right to a jury trial. See Pahnke v. State, 203 Ga. App. 88, 90 (416 SE2d 324). Since the waiver of the jury trial was effective, it was Mojica’s burden to revoke the waiver in such fashion so as not to delay the trial or impede the cause of justice. Brumbalow v. State, 128 Ga. App. 581 (197 SE2d 380). As Mojica’s attempt on the eve of the second trial to revoke the waiver was untimely, it was not effective. Odom v. State, 196 Ga. App. 293 (396 SE2d 27); Leggett v. State, 184 Ga. App. 398 (361 SE2d 546). Accordingly, the trial court did not err by finding that Mojica had waived her right to a jury trial, and Mojica’s first, second, and third enumerations of error are without merit.

Decided September 24, 1993

Reconsideration dismissed November 9, 1993.

Robert L. Rehberger, for appellant.

Keith C. Martin, Solicitor, for appellee.

2. The fourth enumeration of error contends that the trial court erred by allowing the solicitor to abuse Mojica and her counsel during the trial of the case. Examination of the record shows that the solicitor in no fashion abused Mojica and that his comments were all directed toward her counsel for whom the solicitor expressed his hatred and loathing. Pretermitting whether these remarks constituted error, we have examined the record for any indication that this conduct prejudiced Mojica in any way and have found none. A party seeking a reversal must show not only error, but injury arising from the error alleged. Raines v. State, 186 Ga. App. 239, 242 (366 SE2d 841). Nevertheless, there appears to be no purpose in either the solicitor expressing himself in this fashion or the trial court’s permitting him to do so.

3. In view of our disposition of the issue in Division 2, any error connected with the trial court not permitting Mojica’s counsel to withdraw is also harmless.

4. Finally, Mojica contends that the trial court erred by denying her motion for a continuance. It is within the discretion of the trial judge whether to grant a continuance, and, under the circumstances of this case where Mojica failed to demonstrate any diligence, the trial court did not abuse its discretion. OCGA § 17-8-20; Wilder v. State, 199 Ga. App. 514, 515 (405 SE2d 337).

Accordingly, Mojica’s enumerations of error are without merit and her conviction is affirmed.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A93A1642.
    KING v. THE STATE.
    (437 SE2d 809)
   Cooper, Judge.

James Wilbur King was indicted for possession of marijuana with intent to distribute in violation of the Georgia Controlled Substances Act. Following the denial of his motion to suppress, he entered a guilty plea to the charge, reserving his right to appeal the denial of his motion to suppress.

The transcript from the hearing on the motion to suppress reveals that on January 20, 1992, a search warrant was issued for appellant’s residence. Within 60 days prior to the issuance of the search warrant, Officer Richard Royal, an officer with the Bibb County Drug Task Force, received information from a reliable confidential informant. The informant advised Officer Royal that appellant, Kennedy King, appellant’s brother, Joey Cohen and Jamie Cohen, were involved in a scheme to transport marijuana from Houston, Texas to Macon, Georgia. The informant stated that usually Kennedy King would drive or fly to Houston and purchase the marijuana, and Joey Cohen would drive to Houston, pick up the marijuana from Kennedy King and drive it back to Macon, where he would give it to appellant and Jamie Cohen to be distributed. On Friday, January 17, 1992, the informant told Officer Royal that Kennedy King told him that he was on his way to Atlanta to catch a plane to Houston. The informant advised Officer Royal that the marijuana was expected to be back in Macon by Tuesday, January 21, 1992. On Saturday, January 18, 1992, the informant told Officer Royal that he had seen appellant and Jamie Cohen driving a maroon Buick. On that same night Officer Royal observed a maroon Buick outside Joey Cohen’s house and saw Joey Cohen leave and place a tote bag in the car.

Officer Royal also received information from three other reliable confidential informants which corroborated the information provided by the first informant. The second confidential informant stated that appellant told him he was going to Texas to pick up some marijuana and asked if he wanted to purchase some marijuana. The third confidential informant told Officer Royal that Jamie Cohen was distributing marijuana in the Macon area and that the marijuana was supplied by appellant. A fourth confidential informant stated that Jamie Cohen was dealing in large quantities of marijuana which was being brought in from Texas. Officer Royal discovered that on Sunday, January 19, 1992, Kennedy King had been stopped in Atlanta deboarding a plane from Houston and that he was arrested and charged with possession of cocaine with intent to distribute. As a result of all the information received by the four informants and his independent investigation, Officer Royal prepared an affidavit and obtained a search warrant for appellant’s residence.

Decided September 29, 1993

Reconsideration denied November 9, 1993

Harrison & Harrison, Stephen P. Harrison, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Upon receipt of the search warrant, Officer Royal, with the assistance of other officers, began surveillance of appellant’s residence. At approximately 5:00 a.m. on January 20, 1992, a maroon Buick driven by a white male arrived at appellant’s residence. The officers could not identify the driver from their positions but saw the driver get out of the car and go into the house. Approximately 15 minutes later, the driver came out of the house and left in the maroon Buick. The Buick was stopped by the officers approximately two miles from the house. The officers discovered that appellant was the driver of the car, and a search of the car revealed 41.75 pounds of marijuana.

Appellant contends that the search of his car was not authorized by the search warrant, which permitted a search for “records ... or other such documents to substantiate the conspiracy to distribute marijuana between Houston, Texas and Macon, Georgia. ...” However, the real issue is whether the officer had probable cause to conduct a warrantless search of the car. “An automobile search may be conducted without a warrant provided it is based on facts that would justify the issuance of a warrant. [Cit.] The trial court’s decision on fact questions and credibility of witnesses at a suppression hearing must be accepted unless clearly erroneous; and his ruling will be upheld wherever there is evidence to support it. [Cit.]” Love v. State, 173 Ga. App. 85, 86 (1) (325 SE2d 449) (1984). “Generally, probable cause is determined by the ‘totality of the circumstances’ surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. [Cit.]” McKinney v. State, 184 Ga. App. 607, 608-609 (1) (362 SE2d 65) (1987). The information was received from a reliable informant within 30 hours of the subsequent search of the appellant’s car. The information detailed a plan whereby Kennedy King would fly to Houston to purchase marijuana, and then Joey Cohen would drive the marijuana back to Macon where it would be distributed by appellant. The police received corroborating information from the other three informants, and their independent investigation also verified the information. We find that there was sufficient indicia of probable cause to authorize a warrantless search of appellant’s car. Accordingly, the trial court did not err in denying appellant’s motion to suppress. Williams v. State, 173 Ga. App. 207 (1) (325 SE2d 783) (1984).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A93A2210.
    SMAIL v. DOUGLAS COUNTY, GEORGIA.
    (437 SE2d 824)
   Blackburn, Judge.

Appellant, Michael Smail, appeals the trial court’s award of summary judgment to Douglas County, Georgia, acting by and through the Douglas County Board of Commissioners (the county). The underlying wrongful death action arose out of an incident on August 25, 1990, in which defendants Eric Prince and Eric Waugh dropped a large rock from the North County Line Bridge onto Michael Smail’s vehicle which was traveling on Interstate 20. The rock passed through the windshield above the passenger’s seat, crushing appellant’s wife, Judy Smail, to death.

On June 28, 1990, the Douglas County Sheriff’s Department received three reports of incidents involving rocks or other debris being thrown off the North County Line Bridge onto vehicles traveling on Interstate 20. On August 5, 1990, the Douglas County Sheriff’s Department received an additional report regarding the same type of incident and on August 25, 1990, two reports were received, including the Smails’ incident report. Smail contends that the county is responsible for the death of his wife because the county had knowledge of the previous incidents and did nothing to prevent such incidents. Specifically, Smail argues that the county allowed a continuing nuisance to be maintained which caused the death of his wife. The county contends that the Georgia Department of Transportation (DOT) designed, constructed, and maintained the bridge and that the DOT was responsible for repairs, alterations, or modifications of the bridge. Furthermore, the county asserts that it did increase police patrols in the area of the bridge.

In order to establish a nuisance, as opposed to mere negligence, Smail must show: “(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute nuisance[.]) (2) The act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious, and (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or danger - ous condition.” (Citations and punctuation omitted.) Denson v. City of Atlanta, 202 Ga. App. 325, 327 (414 SE2d 312) (1991). “It has been said that pornography cannot be defined but you know it when you see it. A nuisance is in a similar category. While ordinarily whether a nuisance exists is a question of fact for a jury under some factual situations it can be held as a matter of law that no nuisance exists.” (Citations and punctuation omitted.) City of Atlanta v. Chambers, 205 Ga. App. 834, 839 (424 SE2d 19) (1992). Such is the factual situation in the present case, as Smail’s wife was not killed as a result of the county’s creation or maintenance of a defect or dangerous condition, Smail can prove no set of facts which would meet the elements of nuisance listed above.

Decided October 26, 1993

Reconsideration denied November 9, 1993

Hartley, Rowe & Fowler, Joseph H. Fowler, for appellant.

Michael J. Bowers, Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., Jeffrey T. Wise, Jennings B. Garbade, for appellee.

Smail next argues that the county had exclusive law enforcement responsibility for events occurring on the bridge and that it was obligated to protect both the person and property of its citizens, including the deceased, Judy Smail. However, the Georgia Supreme Court has previously required a finding of a “special relationship between the individual and the municipality which sets the individual apart from the general public and engenders a special duty owed to that individual” in order to subject the governing authority to liability for the nonfeasance of its police department. City of Rome v. Jordan, 263 Ga. 26, 28-29 (426 SE2d 861) (1993). As Smail is unable to establish such a relationship between the county and his wife, the trial court was correct in granting the county’s motion for summary judgment.

Judgment affirmed.

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

       These defendants are not involved in this appeal.

       The DOT is an additional defendant in the underlying action, however, it is not involved in this appeal.


text:
    A93A2030.
    BOWMAN v. THE STATE.
    (437 SE2d 840)
   Blackburn, Judge.

Terry Lynn Bowman was tried before a jury and found guilty of a violation of the Georgia Controlled Substances Act. On appeal, his sole enumeration of error is that the trial court erred in failing to grant his motion for directed verdict of acquittal based on his entrapment defense.

“The defense of entrapment consists of the following three distinct elements: (1) the idea for the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Further, the [lack of] predisposition of the defendant toward crime is the key element of the defense. Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452).” Jackson v. State, 206 Ga. App. 98, 99 (424 SE2d 83) (1992).

Bowman does not dispute that he sold approximately seven grams of marijuana to Officer Waddell of the City of Marietta Police Department; however, he contends that he was entrapped into making the sale. Bowman testified that he was approached by a man known to him as “Chris.” Bowman admitted that he had purchased some marijuana from Chris earlier in the week. Bowman testified that Chris repeatedly requested that he sell a quantity of marijuana to some individuals known to Chris. Chris stated that he owed these individuals some money and that they would attempt to get the marijuana as payment for the money owed, if they knew that Chris was the person making the sale. Furthermore, Chris told Bowman that he needed the money in order to have a place to sleep that night. Bowman then agreed to make the sale.

Bowman argues that Chris was an agent of the state and that Chris induced him to sell the marijuana, a crime which he was not predisposed to commit. However, both officers who participated in the transaction testified that Chris was not a state agent, that they did not know Chris, by name or by sight, that he was not an informant, and that they did not pay Chris to facilitate the drug transaction. Officer Waddell testified that Chris approached the two undercover officers, engaged in small talk, and asked “what [they] were looking for.” Officer Waddell stated that they were looking for some “smoke” (street slang for marijuana). Chris asked “how much” and Officer Waddell responded “a quarter ounce.” Chris then stated that it would cost $55. After Officer Waddell agreed, Chris told them to follow him. Chris took the officers to Bowman’s hotel room, where Bowman made the sale to Officer Waddell.

Bowman argues that these facts show that Chris was an agent of the officers in facilitating the drug transaction and that, therefore, a finding of entrapment as a matter of law was demanded. However, even “the use of an informant to introduce an undercover agent to the accused, who then carries on the transaction with the agent, does not constitute entrapment. [Cit.]” . . . “ ‘[Furthermore,] repeated requests and offers of money do not make out an entrapment situation as a matter of law.’ [Cits.]” Pennyman v. State, 175 Ga. App. 405, 407 (333 SE2d 659) (1985).

While Bowman may have presented enough evidence to raise a defense of entrapment, the evidence did not demand a finding of entrapment as a matter of law. See Venable v. State, 203 Ga. App. 517 (3) (417 SE2d 347) (1992) and Tomlin v. State, 170 Ga. App. 123 (3) (316 SE2d 570) (1984). The jury was authorized to find that Bowman was predisposed to sell marijuana and that he was not induced to sell marijuana to Officer Waddell by undue persuasion, incitement, or deceit. Id.

Decided November 9, 1993.

Lawrence W. Daniel, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A93A2305.
    HUGHES v. THE STATE.
    (437 SE2d 841)
   Blackburn, Judge.

The appellant, James Hughes, was convicted of secreting property to defraud another, and damaging property to defraud another. The trial court denied his motion for new trial on May 10, 1993. On June 3, 1993, the trial court granted Hughes a 30-day extension of time to file his notice of appeal, giving him until July 2, 1993, to make the filing. On July 1, 1993, the trial court granted Hughes another extension of time to file his notice of appeal, setting the new deadline at August 1, 1993. Hughes actually filed his notice of appeal on July 30, 1993, 28 days after the expiration of his first extension of time.

OCGA § 5-6-39 (a) provides for the trial court’s grant of an extension of time for the filing of a notice of appeal. However, subsection (c) of that statute further provides that (i[o]nly one extension of time shall be granted for filing of a notice of appeal and a notice of cross appeal, and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.” (Emphasis supplied.) Thus, Hughes’ only authorized extension of time expired on July 2, 1993, without his notice of appeal having been timely filed by that deadline as required. “Accordingly, this court has no jurisdiction over the instant appeal and it is dismissed.” Hamby v. State, 162 Ga. App. 348 (291 SE2d 724) (1982).

Appeal dismissed.

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

Decided November 9, 1993.

David E. Ralston, for appellant.

Roger Queen, District Attorney, for appellee.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A93A0898, A93A0899.
    ROBERTSON v. THE STATE (two cases).
    (437 SE2d 816)
   Blackburn, Judge.

Via accusations, the appellants, Alex and Mae Robertson, were charged with multiple counts of fraudulently obtaining public housing in violation of OCGA § 16-9-55. They were tried and found guilty on all counts by the court sitting without a jury, and these appeals followed.

1. The Robertsons contend that the evidence was insufficient to support their convictions because (1) it did not show the housing they received to be “public housing” within the meaning of the statute; (2) it failed to prove they committed the offenses in the manner set forth in the accusations; and (3) the State failed to produce a certified copy of the applicable federal regulations governing the housing program. We disagree.

OCGA § 16-9-55 (b) in part defines “public housing” as “housing which is constructed, operated, maintained, financed, or subsidized by ... a housing authority. . . .” (Emphasis supplied.) At trial, the housing assistance director with the DeKalb County Housing Authority explained that the Housing Authority receives appropriations from the United States Department of Housing and Urban Development, but the Housing Authority determines the eligibility of applicants and awards subsidies for private housing within DeKalb County. As such, the private housing for which the Robertsons received subsidies from the Housing Authority constituted “public housing” for the purposes of OCGA § 16-9-55.

The Robertsons argue that fatal variances exist between the accusations and the evidence, because the accusations charged them with fraudulently obtaining public housing, whereas the evidence showed that they were entitled to some public housing benefit but not as great a benefit as they actually received. Although the State should be encouraged to draft its accusations in such a manner as to avoid the possibility of a fatal variance between the allegata and the probata, we find no such variance in these cases. OCGA § 16-9-55 describes a single crime relating to the receipt of public housing benefits by a fraudulent scheme or device, and simply outlines numerous ways in which a violation may occur. To accept the Robertsons’ argument would require a determination that the statute provides for several different crimes as opposed to providing different ways in which a single crime may be committed.

The accusations charged the Robertsons with committing “the offense of fraud in obtaining public housing by knowingly and intentionally failing to disclose material information to obtain public housing in violation of OCGA Section 16-9-55.” That Code section prohibits obtaining “public housing or a reduction in public housing rental charges or any rent subsidy or payment from a tenant in connection with public housing” by making a false statement, failing to disclose information, impersonation, or other fraudulent scheme.

The only variance between the accusations and the evidence in these cases concerned the degree of benefit fraudulently obtained by the Robertsons. The type of benefit, i.e., public housing subsidies, was identical, and the method of obtaining it, i.e., failing to disclose information about income, was the same in the accusation and in the proof. Only the degree of benefit, i.e., complete as opposed to partial eligibility or ineligibility for public housing subsidies, differed.

It is axiomatic that not every variance between an accusation and the proof is fatal. An accusation must definitely inform the accused of the charges against him, so that (1) he is able to present a defense, and (2) he may be protected against another prosecution for the same offense. A variance is not fatal unless it subjects a defendant to one of those dangers. Young v. State, 205 Ga. App. 357 (2) (422 SE2d 244) (1992).

In the instant cases, no reasonable argument exists that the accusations did not sufficiently inform the Robertsons of the charges against them so that they were unable to present a defense or were vulnerable to a subsequent prosecution for the same offenses. As noted above, the critical elements of the charges and the evidence were consistent, i.e., the Robertsons obtained public housing subsidies to which they were not entitled by concealing material information about their household income. The Robertsons’ defense would have been no different had the accusations more specifically charged them with obtaining greater rent subsidies than those to which they were entitled. As such, no fatal variance existed.

The State’s failure to produce a certified copy of any pertinent federal regulations did not create a fatal evidentiary deficit. Unlike state regulations, the contents of the Code of Federal Regulations may be judicially noticed. Sims v. Southern Bell Tel. &c. Co., 111 Ga. App. 363 (141 SE2d 788) (1965). Further, the federal regulations were not essential to the proof, as the checklist and housing voucher signed by the Robertsons obligated them to report changes of income and the wage records received from the Georgia Department of Labor indicated that they failed in that obligation.

2. The Robertsons also contend that the trial court erred in admitting into evidence the computer printouts of their wage records received from the Department of Labor, on the ground that the printouts constituted inadmissible hearsay. However, during the trial, the housing assistance director explained that the Housing Authority had a contract with the Department of Labor whereby, upon the Housing Authority’s request, the Department of Labor provided records it maintained of quarterly earnings reported under an individual’s social security number. The Housing Authority requested such wage transcripts whenever it was deemed necessary to verify the income of an applicant/recipient. Upon receiving the transcripts, the documents were then maintained as records of the Housing Authority. In short, these documents were routinely prepared by the Department of Labor and transmitted to the Housing Authority, which kept and maintained the documents in the regular course of the Housing Authority’s business. Under these circumstances, the trial court did not err in admitting these earnings records as business records. OCGA § 24-3-14, generally; see Moore v. State, 154 Ga. App. 535, 537-541 (268 SE2d 706) (1980); Graham v. State, 154 Ga. App. 198 (267 SE2d 842) (1980).

Judgments affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

“In Ross v. State, 195 Ga. App. 624 (1 b) (394 SE2d 418), this court was confronted with a count of aggravated sodomy which averred that appellant had committed the offense in one manner and in one manner only. The evidence failed to prove that the offense was committed in the manner averred, although it was established the offense would have been committed in another statutory manner not averred. This court noted the facts in Ross were distinguishable from those cases where an indictment avers several different manners in which the offense was committed and there exists evidence sufficient to support a finding of guilt as to one (but not all) of these averred manners, and held: ‘ “ ‘If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. . . . (N)o averment in an indictment can be rejected as surplus-age which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. (Cits.) ... To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance. . . . (Cits.)’ ” (Cits.)’ Accord Feagin v. State, 198 Ga. App. 460 (2) (402 SE2d 80).” Barnett v. State, 204 Ga. App. 491, 496 (3), 497-498 (420 SE2d 43).

Decided October 19, 1993

Reconsideration denied November 10, 1993

Lane, O’Brien, Caswell & Taylor, Richard T. Taylor, for appellant.

Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, R. Javoyne Reed, W. Cliff Howard, Assistant Solicitors, for appellee.

Inasmuch as the accusation charged defendants with violating OCGA § 16-9-55 by fraudulently obtaining public housing, it was incumbent upon the prosecution to prove that defendants committed the offense in that manner. The evidence adduced at trial established that defendants were eligible to obtain public housing — but that they schemed to obtain additional rent subsidies (i.e., subsidies over and above that to which they were entitled) by failing to disclose their true income. Thus, in my view, there is a fatal variance between the allegata and the probata.

I respectfully dissent.


text:
    A93A1014.
    HILLMAN v. GENERAL MOTORS ACCEPTANCE CORPORATION et al.
    (437 SE2d 803)
   Andrews, Judge.

On October 26, 1991, Hillman filed a compliant against General Motors Acceptance Corporation (“GMAC”) and Kurt Hertwig, a GMAC employee, based on events arising out of a vehicle installment contract which she entered into in September 1989. The vehicle on which the contract was based was repossessed on November 5, 1990.

Hillman filed the complaint setting forth counts for wrongful repossession, conversion, fraud and estoppel. Although she conceded that the installment contract required payments on the third of each month, she claimed that GMAC routinely accepted late payments from her, which constituted a mutual departure from the payment terms of the contract and required written notice of strict compliance with the contract before repossession. She claimed that she was disabled in October 1990, and that she forwarded disability claim forms, pursuant to her disability insurance policy, to her insurer throughout that month. She asserted that she spoke with GMAC representatives throughout October and was assured by them that the company would wait for payment from the insurer. Hillman claimed that no mention of default or of repossession was made during the October conversations. Nevertheless, her vehicle was repossessed on November 5.

Hillman’s complaint sought compensatory and punitive damages for the wanton and oppressive manner in which defendants handled her account. GMAC counterclaimed for the deficiency which resulted after disposition of the vehicle.

Defendants filed a motion for summary judgment as to the entire complaint and as to the punitive damages claim, arguing that GMAC’s acceptance of two late partial cash payments was insufficient to constitute a mutual departure from the payment terms. Defendants claimed that GMAC’s handling of the account did not excuse Hillman’s past due September, October and November installments and that the repossession was conducted properly. They contended that two written notices and various telephone inquiries were made to Hillman in October regarding her past due account. Although Hill-man paid the outstanding August balance on October 10, 1990, she did not pay the September and October amounts. GMAC stated that it received a copy of a letter dated October 10, 1990 to Hillman from the disability insurer advising her that there were no outstanding claims for payment of further benefits at that time. Accordingly, on November 5, GMAC repossessed the vehicle.

In response to the motion for summary judgment, Hillman submitted several affidavits, including her own. She stated that she never received a notice of default and that her account was subject to special handling since she was disabled. She claimed that in every conversation with GMAC, company representatives assured her that they would wait for the insurer’s payment for the balance. Hillman claimed that GMAC did not mention default or repossession in these conversations. She swore that upon finding out that no disability claim was pending, on November 2, 1990, she forwarded a verified claim for disability to the insurer. It was undisputed that a payment from the insurer reached GMAC after the repossession. After the repossession, Hillman contacted GMAC regarding personal property which was in the vehicle, which property was never returned to her.

The trial court granted the motion for partial summary judgment on November 17, 1992. While the court ruled that an issue of fact remained regarding the substance of the complaint, it concluded that no issue of fact remained regarding punitive damages.

In her sole enumeration of error, Hillman argues that the trial court erred in granting summary judgment on the punitive damages claim. First, she argues that the trial court applied an erroneous standard regarding the Georgia law on punitive damages. Secondly, Hill-man argues that the trial court erred in finding that the evidence of fraud was insufficient as a matter of law to support an award of punitive damages. Citing several cases including Maddox v. Brown, 200 Ga. App. 492 (3) (408 SE2d 719) (1991), she claims that fraud can be inferred from the evidence that GMAC representatives assured her that the company would wait for payment and that her claim for punitive damages was proper. Finally, Hillman contends that summary judgment was improper because there was evidence of GMAC’s violations of its own internal policies. Without reference to specific violations, Hillman argues that because GMAC violated its own policies, a jury could conclude that GMAC behaved with reckless disregard for the rights of debtors.

Hillman’s arguments are without merit. On the date of repossession, it is undisputed that Hillman’s account was past due for September, October and November. Further, no claim for the outstanding payments had been submitted to the insurer. There was no evidence that GMAC behaved maliciously, or with conscious indifference to the consequences in repossessing the vehicle. The record shows no evidence of malicious intent or conscious indifference to the consequences, therefore summary judgment on the issue of punitive damages in favor of the defendant is entirely appropriate. See Carter v. Meyers, 204 Ga. App. 498 (419 SE2d 747) (1992).

The trial court concluded that a factual issue remained as to whether GMAC conducted the repossession in an improper manner. Nevertheless, we agree with the trial court’s finding that there was inadequate evidence to support a punitive damages award. “Negligence, even gross negligence, is inadequate to support a punitive damage award. Under OCGA § 51-12-5.1 (b), which is applicable . . ., it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . . There is general agreement that, because it lacks this element, mere negligence is not enough. . . .” (Citations and punctuation omitted.) Tower Fin. Svcs, v. Smith, 204 Ga. App. 910, 918 (5) (423 SE2d 257) (1992). Construing the evidence most favorably for Hillman, the acts committed by GMAC simply did not warrant the imposition of punitive damages.

Our conclusion is not altered by Ford Motor Credit Co. v. Spicer, 144 Ga. App. 383 (3) (241 SE2d 273) (1977). Pretermitting the issue of the effect of OCGA § 51-12-5.1 on the outcome of that case, the factual circumstances of the case at hand are distinguishable. In Ford Motor, the award of punitive damages was affirmed because there was evidence that the plaintiff submitted payments on the installment contract, but that Ford Motor Credit Company continued to withhold plaintiff’s automobile after learning of its own error. Thus, in Ford Motor, there was evidence that the repossession was malicious.

Similarly, Maddox v. Brown, supra; Champion v. Martin, 124 Ga. App. 275 (2) (183 SE2d 571) (1971), and Hambrick v. Fidelity Acceptance Corp., 159 Ga. App. 540 (4) (284 SE2d 53) (1981), which Hillman cites as support for allowing a claim of punitive damages in a case in which there is evidence of fraud, do not compel a different result from that reached by the trial court. As Hillman argues, those cases support the proposition that “ ‘the perpetration of a fraud is one of the specific reasons for allowance of punitive damages.’ ” Maddox, supra at 494. Nevertheless, wé do not interpret this line of cases as mandating the allowance of punitive damages in every case in which fraud has been deemed an issue for the jury.

Decided September 23, 1993

Reconsideration denied November 10, 1993

Bondurant, Mixson & Elmore, Keenan R. S. Nix, for appellant.

OCGA § 51-12-5.1 (b) provides that “[pjunitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Although there is no argument here by appellees that the denial of their motion for summary judgment on the fraud count was improper, we find that given the facts of this case, the trial court’s conclusion that the punitive damages claim was insupportable was correct.

Judgment affirmed.

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

On Motion for Reconsideration.

Hillman’s motion for reconsideration contends that we erred in deciding that the trial court’s grant of summary judgment as to the punitive damages claim was proper since the court had held that fraud was a jury issue.

We do not reach the issue Hillman argues of whether a claim of fraud which survives summary judgment mandates the allowance of punitive damages, because in this case the trial court should have granted summary judgment as to the fraud claim. We do not accept Hillman’s argument that a jury could reasonably infer that GMAC’s representations that late payment would be accepted and that her balance due need not be paid immediately were knowingly false when made and were made with the intent to deceive. Furthermore, we find no reasonable reliance in Hillman’s behavior. The evidence of fraud was insufficient to withstand the motion for summary judgment, thus the grant of summary judgment on the claim for punitive damages was proper.

Motion for reconsideration denied.

McCullough & Pane, John G. McCullough, for appellees.


author: Johnson, Judge. Pope, Chief Judge, McMurray, Presiding Judge,

text:
    A93A1401.
    WHITTLE v. THE STATE.
    (437 SE2d 842)
   Johnson, Judge.

Henry J. Whittle, Jr., pleaded guilty to a misdemeanor speeding charge and was ordered to pay a fine. He timely filed a pro se notice of appeal. The notice alleges that the trial court erred in refusing to accept Whittle’s proffer of a nolo contendere plea. The appeal was docketed in this court on March 31, 1993. No enumeration of error or brief was filed within 20 days after docketing, but this court granted an extension for filing until April 30, 1993 upon Whittle’s motion. Then, on May 10, we denied Whittle’s second motion for a further extension which he requested due to an unspecified “family emergency.” Nevertheless, on May 24, 1993, this court entered a final order extending the time for filing enumerations of error and a brief until June 1, 1993 and warned Whittle that failure to comply “may” result in the dismissal of his appeal. These exceptional procedures are routinely followed in criminal cases. Whittle failed to file enumerations of error or a brief in accordance with the terms of the May 24 order. The entire record in the case consists of the notice of appeal, the traffic citation upon which the guilty plea was entered and an executed waiver of jury form.

Despite the paucity of the record, we could, as we have in the past, make every effort to render a decision in the case. We decline to do so, however, and instead take this opportunity to reexamine the rule stated in Lee v. State, 203 Ga. App. 487, 488 (1) (417 SE2d 426) (1992): “[o]nce this court’s jurisdiction has been invoked by a timely filed notice of appeal from a criminal conviction, we will not dismiss for the subsequent failure to comply with the rules of this court, but will make every effort to render a decision on the merits of the case.” See also Sarver v. State, 206 Ga. App. 459 (426 SE2d 48) (1992).

The purpose of the rule, to possibly avoid a later habeas corpus challenge based on insufficiency of evidence, is laudatory. Nonetheless, we have two concerns about the rule, both of which have been suggested in previous dissents. First, we believe it is inconsistent and fundamentally unfair for us to follow Court of Appeals Rule 15 (c) (2) in some cases and deem abandoned any enumeration of error which is not supported by citation of authority or argument, and yet in other cases provide enumerations of error which have not even been articulated, and support them with authority. This practice works to the disadvantage of the appellant who attempts to make his own case and is penalized for being unfamiliar with the rules of this court, and rewards the nonfeasánce of the appellant who does nothing at all with having this court comb the record for error on his behalf. See Lee v. State, supra.

Our second concern is that “creating” an appeal for the appellant who has failed to file enumerations of error or a brief casts this court into the role of advocate. The awkwardness and inappropriateness of this role has been suggested by Judge Beasley in her dissent in Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and again in Sarver, supra.

Whittle elected to undertake his own appeal, therefore neither the spirit nor the letter of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), is violated by our actions in declining to consider his appeal. We hold that when an appellant elects to pursue his own appeal, and fails to file enumerations of error or a brief after having been ordered to do so by this court, the appeal will be dismissed. Our decisions in Sarver v. State, supra; Lee v. State, supra; Conyers v. State, supra; DeBroux v. State, supra; and Allen v. State, supra; are expressly overruled to the extent they conflict with this holding.

Appeal dismissed.

Birdsong, P. J., Beasley, P. J., Andrews and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., dissent.

Pope, Chief Judge,

dissenting.

For a number of years, it has been the policy of this court to decide criminal appeals on the merits, even if the defendant fails to file a brief and enumerations of error. See, e.g., Sarver v. State, 206 Ga. App. 459 (426 SE2d 48) (1992). This policy does not require us to “comb” the record for errors as an advocate would, as suggested by Presiding Judge Beasley in her dissent in Conyers v. State, 183 Ga. App. 591, 592-593 (359 SE2d 454) (1987) and her special concurrence in Sarver, 206 Ga. App. at 460-461. Rather, it requires a brief review of the record to ensure that no clear and grave injustice has occurred. In at least nine out of ten cases, this review will result in a summary affirmance of the conviction. But in a small minority of cases, there will be a fairly obvious error requiring reversal of a conviction. See Sarver, 206 Ga. App. at 459. This practice does not unfairly work to the disadvantage of appellants who do file enumerations of error and are limited to those enumerations; while we have all refused to decide issues not enumerated as error from time to time, I am confident that none of us do so when it would result in the affirmance of a clearly incorrect and unjust judgment. And it is those types of judgments this policy was meant to address.

Decided November 10, 1993.

Henry J. Whittle, Jr., pro se.

S. Dabney Yarbrough, for appellee.

Perhaps it is time to reconsider our position that criminal appeals should always be decided on the merits, regardless of whether a brief and enumerations of error have been filed. However, the majority opinion goes beyond overruling our current policy: it actually holds that criminal appeals “will be dismissed” if a pro se defendant does not comply with an order to file a brief and enumeration of error, thereby denying us the discretion to address the merits of such appeals under any circumstances. For the reasons expressed above, I do not believe that a brief review of the record is either an improper or an unwarranted use of our time, and in some cases this practice enables us to rectify a clear and grave injustice. I therefore suggest that if our current practice is to be changed, the new policy should be that such appeals may rather than will be dismissed without review on the merits. See Court of Appeals Rule 14; see also Lee v. State, 203 Ga. App. 487, 493 (417 SE2d 426) (1992) (Andrews, J., dissenting).

In this case, a brief review of the record reveals no reversible error. I would therefore affirm the judgment below.

I am authorized to state that Judge Cooper and Judge Blackburn join in this dissent.

McMurray, Presiding Judge,

dissenting.

I must respectfully dissent as I am unable to agree with the majority’s holding that Lee v. State, 203 Ga. App. 487, 488 (1) (417 SE2d 426) (1992) and Sarver v. State, 206 Ga. App. 459 (426 SE2d 48) (1992) should be overruled. In my view, there could be circumstances at some future time in which the principles enunciated in Lee and Sarver would be applicable.

       Other misgivings about the wisdom of the practice of “providing” an appeal in these circumstances have been articulated in dissents in Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989); Golden v. State, 190 Ga. App. 477 (379 SE2d 230) (1989); Conyers v. State, supra; and DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985).

       For an excellent discussion of the obligations created under Evitts v. Lucey, supra, see Judge Andrews’ dissent in Lee, supra, 203 Ga. App. 490 et seq.


author: Beasley, Presiding Judge.

text:
    A93A1481.
    ARNOLD v. THE STATE.
    (437 SE2d 844)
   Beasley, Presiding Judge.

A jury convicted Arnold of theft by deception, OCGA § 16-8-3, in obtaining a $250,000 loan by intentionally and falsely representing to the lenders that he owned certain real property to secure the loan and that he had conveyed the property to the lenders, when in fact he never owned the property and thus could not convey it. A new trial was denied. Arnold challenges the sufficiency of the evidence with respect to the charge as specified and the trial court’s failure or refusal to give three jury instructions.

There are five separate enumerations of error, but Arnold makes one collective argument with no effort to follow or differentiate among his enumerated errors. Consideration is unnecessarily difficult. Court of Appeals Rule 15 (c) (1) provides that “[t]he sequence of argument or arguments in the briefs shall follow generally the order of the enumeration of errors, and shall be numbered correspondingly.” Appellant’s pointing out in a motion for reconsideration later that we deciphered his brief incorrectly will prompt no relief. Rule 48 (f).

1. In his second enumeration of error, Arnold contends that the trial court erred in failing to grant his motion for a directed verdict of acquittal at the close of the State’s evidence.

The arguments that appear to pertain to this enumeration are: (a) There was a fatal variance between the proof at trial and the allegations of the indictment, in that any evidence of a criminal act was by a corporation rather than by Arnold individually, and further, that the indictment alleged that Arnold was given cash when in fact a check was given, (b) The State failed to prove venue as required under OCGA § 16-8-11. (c) The State failed to prove the elements of theft by deception, namely, that there was no evidence of “benefit” to Arnold and the evidence was that the lenders relied on a promise to do something in the future rather than on a promise as to a past or present fact. Additionally, Arnold asserts that the lenders’ lack of diligence in failing to conduct a title examination was a complete defense to his prosecution.

The evidence construed in favor of the verdict showed the following. Arnold purported to attempt to develop, manufacture, and market his invention of a safety light device to be mounted on a motorcycle or bicycle helmet or to be worn by a pedestrian. He called his venture Todd Industries, Inc. Arnold had no success in finding investors until late 1988 when he met investment consultant Fay. Arnold told Fay he was interested in borrowing $500,000. Fay had numerous exchanges with Arnold and Arnold’s national sales manager and representative, Ledford.

Fay spoke about the possibility of investment in the project with two of his clients, dentists Allison and Paris, both from Columbus. Arnold and/or a representative provided Fay, Allison, and Paris with information about Arnold and the venture, including personal financial and income statements and projected profits. Such documents showed Arnold’s forecast of business profits for a period slightly in excess of a year to be around $9,000,000 with his yearly income in the hundreds of thousands of dollars. He claimed a net worth of approximately $9,000,000 and ownership of Creekview Townhomes in DeKalb County worth $2,995,000 with an equity of $588,500.

Fay, Allison, and Paris agreed to invest $250,000 which was to be loaned from a bank. Fay was to borrow $125,000 and Allison and Paris collectively were to borrow the remaining $125,000. The three were to get ten percent of the company stock and the loan was to be repaid in six months from the date of its making. Arnold agreed to secure the loan with collateral of a subordinated mortgage on the Creekview Townhomes. Without such collateral, Fay would not have loaned the money or permitted his clients to do so. Without the land as security, banks would not fund the loan in the first place.

Fay retained Columbus attorney Sprouse to prepare the required documents. No title examination was conducted. On February 25, 1989, Arnold and Ledford came to Sprouse’s office in Columbus and met with the parties to close the deal. Arnold assured the investors that they “ought to feel real safe” about the deal because they “got collateral worth ten times more than [their] investment.”

Sprouse had prepared a security deed on the Creekview Townhomes in favor of the three investors for Arnold to sign. Arnold did not sign then, indicating that he did not know whether he or his corporation owned the property; he took the original security deed with him “to have executed by the appropriate owner.” The investors did not give Arnold the money at that time. Arnold later returned the deed, signed by him individually and on behalf of Todd Industries, Inc. At the time Arnold executed the security deed on the Creekview Townhomes in favor of the investors, he did not own the property.

Earlier in 1988, Arnold had become aware that the property was for sale and contacted the owner. Approximately three months prior to the closing with Fay, Allison, and Paris, in December 1988, Arnold executed an option contract on behalf of Todd Industries to purchase the townhomes. The option was to be exercised within 20 days for a purchase price of $175,000 above the outstanding loan balance with an assumption of the loan balance, and the sale was to be closed by January 31, 1989. Neither Arnold nor his company ever exercised the purchase option.

After the signed security deed was returned to the investors, arrangements were made to give Arnold the check for $250,000. Arnold instructed his employee Ledford to go to Columbus on March 2, 1989 to receive the check, which Ledford did. Arnold also instructed Led-ford to stop at the first telephone he came to as soon as he got the check and to call Arnold to say he had the check in hand, which Led-ford also did. Ledford drove straight back to Atlanta to Arnold’s house and delivered the check to Arnold as directed. The next morning, Ledford accompanied Arnold to a bank to deposit the check; Arnold wanted to “make a little noise” about depositing a check for $250,000 because the bank was one of the institutions which had refused to loan him money.

With the $250,000 in hand, Arnold leased an office, warehouse, and furnishings and began to pay himself a salary of $10,000 a month; he also purchased two new luxury automobiles for himself and his wife. Arnold’s operation had the appearance of having a product to sell but no product was ever manufactured. By July or August 1989, none of the $250,000 remained.

At trial, Arnold admitted that he did not own the townhomes at the time he executed the security deed in favor of Fay, Allison, and Paris. His defense was that he signed the document not knowing what it was. When asked why he had not informed the three investors that he did not own the townhomes, Arnold responded that he would have told them if they had asked but that they did not. Arnold further testified that he had no present income other than $680 monthly from social security.

The State’s theory was that Arnold told the owner of the townhomes that he intended to purchase the property in order to get a legal description so that he could give the bogus security deed to the investors and obtain their money, and that Arnold figured on the investors not doing anything about it. The jury found defendant guilty as charged.

(a) There was no fatal variance between the allegata and the probata as Arnold urges.

First, Arnold has provided no authority for the proposition that any corporate involvement had to be noted on the bill of indictment. Moreover, whether or not Arnold acted on his own behalf or on behalf of his alleged corporation or both, the evidence established beyond a reasonable doubt that Arnold was the primary actor in obtaining the investors’ money by his deceitful representations. See OCGA § 16-8-3. “ ‘An officer or an agent of a corporation cannot shield himself from criminal responsibility for his own acts on the ground that they were done in his official capacity as an officer or agent of such corporation.’ [Cit.]” Thompson v. State, 85 Ga. App. 298, 299 (1) (69 SE2d 206) (1952), later cited in Cross v. State, 126 Ga. App. 346, 349 (3) (190 SE2d 561) (1972), a theft by deception case.

The claim that the indictment was fatally defective as compared with the proof, because it alleged that the $250,000 loan was in “lawful currency” when in fact the amount was given to Arnold in the form of a check, is likewise without merit. Even if “lawful currency” is only cash, the discrepancy was not fatal. “ ‘Under DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), “(n)ot every variance in proof from that alleged in the indictment is fatal.” (Cit.) The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal.’ [Cit.]” Bartel v. State, 202 Ga. App. 458 (1) (414 SE2d 689) (1992). See also Harrell v. State, 192 Ga. App. 876, 877 (1) (386 SE2d 676) (1989). As in Bartel, defendant Arnold was not subjected to such dangers inasmuch as the material allegations and proof corresponded.

(b) The State did not fail to prove venue in Muscogee County. Theft by deception (OCGA § 16-8-3) is considered to have been committed in any county in which the accused exercised control over the property which was the subject of the theft. OCGA § 16-8-11. The evidence was without dispute that Arnold’s agent, Ledford, obtained the check for Arnold in Columbus at Arnold’s direction and subjected it to Arnold’s control.

(c) The contention that the State failed to show a required “benefit” to him personally is wholly unavailing. First, Arnold misconstrues Robinson v. State, 198 Ga. App. 431 (401 SE2d 621) (1991) and Stewart v. State, 142 Ga. App. 493 (236 SE2d 278) (1977), on which he relies. Neither case engrafts a “benefit” requirement into the crime of theft by deception as defined in OCGA § 16-8-3. In the respective cases, any “benefit” aspect is discussed in terms of the defendants’ level of participation in the alleged crimes. Even if personal benefit were a requirement, the evidence showed that Arnold received ample personal benefit after deceitfully obtaining the $250,000.

The assertion that the investors relied on only a promise to do something in the future is likewise unavailing. The representation forming the basis of theft by deception must refer to a presently existing fact. Harris v. State, 141 Ga. App. 213, 214 (1) (233 SE2d 21) (1977). It did. Both prior to and at the closing, Arnold, orally and by documents, falsely represented to the investors that he presently owned the offered collateral. Moreover, the check was not handed over to Arnold’s agent until the fraudulently signed security deed was delivered.

Any lack of diligence by the victims in failing to obtain a title examination of the proposed collateral is not a defense to the criminal charge. “ ‘[T]he fact that the party alleged to have been defrauded did not exercise reasonable diligence in preventing the fraud affords no defense to the accused.’ [Cit.]” Suggs v. State, 69 Ga. App. 383, 384, hn. 4 (25 SE2d 532) (1943) (decided under former Code 1933, §§ 26-3918; 26-7408; 26-7409; 26-7410).

The State proved the elements of theft by deception beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The court did not err in denying a directed verdict of acquittal.

2. In his third enumeration of error, Arnold contends that the court erred in failing to give his requested charge on the principle of “constructive notice” as set forth in McElwaney v. MacDiarmid, 131 Ga. 97 (62 SE 20) (1908), in that the victims had notice by virtue of the public records that he did not own the property.

It appears that the request to charge was merely oral rather than written. Generally, where there is no written request, it is not reversible error for the court to fail to give it. See Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991) and Weathers v. State, 198 Ga. App. 871, 872 (4) (403 SE2d 449) (1991). In any event, the principle articulated in Division 3 of McElwaney, a civil case, has no application in this criminal prosecution for theft by deception.

3. In his fourth enumeration of error, Arnold contends that the court erred in failing to charge the jury on the affirmative defenses to prosecution in OCGA § 16-8-10 even though he did not request such an instruction.

First, not only did Arnold not request such a charge, but neither did he object in any manner to the court’s charge as given. In general, “where an omission to charge is involved, there is a requirement to request a charge and/or object to its omission or suffer a waiver.” Gaines v. State, 177 Ga. App. 795, 799 (1) (341 SE2d 252) (1986), (physical precedent but later cited, e.g., in Cole v. State, 200 Ga. App. 318, 321 (4) (408 SE2d 438) (1991)).

Furthermore, there was no evidence of any of the affirmative defenses of OCGA § 16-8-10, so instruction on them was not appropriate.

4. In his fifth enumeration of error, Arnold contends that the court erred in refusing to charge the jury, pursuant to his oral request, on the elements of the offense of “cheating and swindling by false representations” as set forth in Diamond v. State, 52 Ga. App. 184 (182 SE 813) (1935) and Chandler v. State, 80 Ga. App. 550 (56 SE2d 794) (1949).

These cases were decided under former Code 1933, §§ 26-3918; 26-7408; 26-7409; 26-7410. OCGA § 16-8-3 evolved from the former cheating and swindling laws, but there are significant differences between them and the present theft by deception statute. See, e.g., Harrell v. State, supra at 877 (2), which determined that unlike the predecessor statutes, OCGA § 16-8-3 has no requirement of proof of pecuniary loss. The court properly charged instead the applicable provisions of the present law under which defendant was charged.

Decided November 10, 1993.

Alan C. Manheim, for appellant.

Douglas C. Pullen, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

5. For the foregoing reasons, the court did not err in denying Arnold’s amended motion for new trial, as contended in the first enumeration of error.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       Arnold’s arguments in support of a directed verdict differed at trial. He urged that there had not been “reasonable reliance” by the lenders on any misrepresentation and that the State had failed to show that there were any damages.

       On the other hand, the rule in Suggs, supra, still applies.


text:
    A93A1665.
    WINFIELD v. THE STATE.
    (437 SE2d 849)
   Cooper, Judge.

Appellant was tried with four co-defendants for armed robbery and all five were found guilty by a jury. He appeals from the judgment and sentence entered on the jury verdict.

The evidence at trial showed that on October 15, 1990, two armed gunmen robbed the Citizen’s Bank in Byromville, Georgia, shortly after it opened. Both robbers wore baseball caps, gloves, and masks, although the shorter of the two gunmen took his mask off briefly. Several days later, authorities executed a search warrant at an apartment in College Park, Georgia. There authorities found appellant and two of his co-defendants; money taken from the bank during the robbery, most of which was still in Citizen’s Bank of Byromville bank straps; empty bank straps including one Federal Reserve bank strap which had to have come from the Byromville bank vault; and gloves identical to those used in the robbery. Surveillance cameras in the bank captured the entire robbery on videotape from which still pictures were developed showing various stages of the robbery. At trial, the Byromville police chief, who had observed appellant on at least two occasions for several hours at a time, was shown a photograph of the robbery and identified the shorter robber seen in the photograph as being appellant.

1. Appellant argues that he was denied his constitutional right to be present during voir dire and a portion of the second day of trial. When the trial commenced shortly after 9:00 a.m., neither appellant, who was free on bond, nor his counsel was present; however, the prosecutor informed the court that he understood counsel for appellant was on his way. After a bench conference in which counsel for co-defendant Bryant Gee indicated he did not want to proceed without appellant, the trial court decided it would propound general qualification questions to the jury pending the arrival of appellant and his counsel. Counsel for appellant arrived as the court was in the process of excusing three jurors for cause. Counsel informed the court that he had spoken to appellant around 11:00 the previous evening and did not know what problems appellant might have encountered getting there; however, he was ready to proceed pursuant to appellant’s arrival.

Without objection, the trial court divided the prospective jurors into four panels. Counsel for co-defendant Gee then requested the jury not be struck until appellant arrived. The court indicated it would hold a recess to discuss what to do if appellant did not arrive at which point counsel for appellant stated that he had just received word that his client had car trouble and was expected to arrive around 11:30 a.m. The court indicated that it would recess after voir dire in any event. After a bench conference concerning striking the jury, the court proceeded with voir dire without objection from appellant’s counsel who participated fully in voir dire on appellant’s behalf.

Appellant arrived during voir dire of the fourth panel of prospective jurors, and his counsel introduced him to the pool of jurors. After voir dire, appellant and his counsel participated in selection of the jury without objection. The court administered the oath to the jury and, after opening statements, adjourned for the day.

When court reconvened the next morning, counsel for co-defendant Gee moved for a continuance on the grounds his client had encountered car trouble and was expected to arrive from Atlanta around noon. Appellant’s counsel also moved for a continuance, noting that he expected his client would be there. The trial court denied the motions on the ground both defendants knew their case was being tried and had a duty to be present. Trial resumed, and appellant and Gee arrived at 2:36 p.m., during direct examination of the State’s sixth witness. The prosecutor moved to revoke both appellant’s and Gee’s bonds during the next recess. Counsel for Gee responded that his client had received a traffic ticket at 9:25 that morning in East Point, Georgia, had been arrested for driving on a suspended license, and had to arrange for bond. Counsel for appellant explained that appellant had traveled to court with Gee. The court denied the motion and appellant was present for the remainder of the trial.

The defendant’s right to be present at every stage of the trial extends to selection of the jury. Fictum v. State, 188 Ga. App. 348 (2c) (373 SE2d 54) (1988). However, the defendant may waive the right to be present during trial proceedings by voluntarily absenting himself from the court. Id. at 349. Furthermore, the right to be present during voir dire or jury selection may be waived by defendant’s attorney in defendant’s presence, by his express authority, or if he subsequently acquiesces to his attorney’s waiver. Allen v. State, 199 Ga. App. 365 (6) (405 SE2d 94) (1991); see also Williamson v. State, 207 Ga. App. 565 (1) (428 SE2d 628) (1993).

Appellant voluntarily absented himself from the court since he was free on bail and clearly knew the proceedings had begun, but had not made sufficient arrangements to attend. See Fictum, supra. Moreover, while appellant’s counsel did not expressly waive appellant’s right to be present, at no time did counsel object to proceeding with voir dire in appellant’s absence or move for a continuance. Furthermore, appellant’s counsel participated fully in voir dire on appellant’s behalf without objection. When appellant finally did arrive, neither he nor his counsel objected to voir dire having proceeded in his absence; appellant’s counsel simply introduced him to the pool of jurors and stated that, while appellant had encountered car trouble, he had arrived as promised. Appellant was present for the remainder of voir dire and, without objection, he and his counsel participated in jury selection. Thus, the record supports a finding that appellant acquiesced in his attorney’s conducting voir dire in his absence, and we conclude the trial court did not err in proceeding with voir dire without appellant present. See Allen v. State, supra (defendant acquiesced in his attorney’s apparent waiver of his presence at jury selection when he met with counsel prior to trial and voiced no complaint about the jury being picked in his absence). Pollard v. State, 175 Ga. App. 269 (333 SE2d 152), cited by appellant, is distinguishable from this case. In Pollard, the defendant absented himself before jeopardy attached and never returned whereas, here, appellant appeared before jeopardy attached and was present for a portion of voir dire and the selection and swearing of the jury.

We also find the trial court did not err in conducting the second day of trial in appellant’s absence. When court reconvened on the second day, appellant was not present and his counsel simply stated that he expected appellant would appear. When appellant and co-defendant Gee finally arrived late in the afternoon, they explained that Gee had received a traffic citation in East Point, Georgia; however, the citation was received 25 minutes after court had reconvened at a time when appellant and Gee were still over 100 miles away from the courthouse in Vienna, Georgia. “Confrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial.” (Citations omitted.) Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975). Because appellant was free on bail and failed to make sufficient arrangements to arrive at the second day of trial on time, he waived his Sixth Amendment right of confrontation.

2. In his second enumeration of error, appellant contends the trial court erred in failing to rebuke the prosecutor or give curative instructions to the jury following improper statements by the prosecutor in his closing argument concerning appellant’s absence from a portion of the trial. During the State’s closing argument, the prosecutor stated that appellant, by his own choice, was not in the courtroom when the still photo of him taken from the videotape of the robbery was introduced such that the jury could compare it to appellant. He also stated that appellant had conveniently sat so that the jury could not see a profile of his face as was depicted in the still photograph. Although appellant’s counsel objected to the prosecutor’s comment about appellant’s absence from the courtroom, he did not request curative instructions from the court or move for a mistrial. “A mere objection to improper argument of counsel, without more, is not sufficient to invoke action by the court which appellant now says should have been taken. In the absence of a specific motion either for a mistrial, or that the jury be instructed to disregard the argument, it is not error to fail to grant a mistrial or to instruct the jury.” (Citations omitted.) O’Kelley v. State, 175 Ga. App. 503, 508 (4) (333 SE2d 838) (1985). Moreover, in response to appellant’s objection, the trial court reiterated its earlier instruction to the jury not to draw any inference of guilt based on a defendant’s absence from the trial. In any case, even if any error did attach to the trial court on this ground, “no miscarriage of justice resulted inasmuch as it is highly probable that the error did not contribute to the judgment.” (Citations omitted.) O’Kelley, supra at 509.

3. In his third enumeration of error, appellant contends the trial court erred in giving a jury charge on expert testimony because no expert testimony was given. The only witness to whom the charge could have applied was a GBI agent who explained what a latent fingerprint is and testified that he was unable to match any of the latent fingerprints he developed with the fingerprints of the five defendants in the case. Under these circumstances, even assuming the agent’s testimony did not authorize a charge on expert testimony, “we hold without hesitation that it is highly probable that the charge did not contribute to the verdict and was, therefore, harmless. [Cit.]” Garrett v. State, 184 Ga. App. 715 (5) (362 SE2d 423) (1987). We further reject appellant’s contention that the charge on expert testimony bolstered the testimony of the Byromville police chief identifying appellant as one of the robbers pictured in a still photograph developed from the videotape of the robbery. Any reasonable juror would have known that the police chief was simply stating whom he believed to be pictured in the photograph and was not giving expert testimony.

Decided November 10, 1993.

Harold M. Harvey, for appellant.

John C. Pridgen, District Attorney, for appellee.

4. Finally, we reject appellant’s contention that the trial court erred in permitting the jury to have a magnifying glass in the jury room during deliberations. “The jury may examine and evaluate objects taken to the jury room, so long as their examinations and tests do not have the effect of introducing new evidence. Thus they may use a magnifying glass to examine evidence.” Carson v. State, 241 Ga. 622, 626 (3) (247 SE2d 68) (1978); see also Jones v. State, 150 Ga. App. 300 (3) (257 SE2d 370) (1979).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.