text:
    A97A1869.
    LITTLETON et al. v. STONE.
    (497 SE2d 684)
   Smith, Judge.

In this legal malpractice case, Billy J. Littleton and Linda Faye Littleton appeal from the trial court’s grant of summary judgment to William S. Stone, the attorney who represented them in a medical malpractice action. In the medical malpractice suit (“the underlying action”), the Littletons sought recovery for the allegedly negligent delivery of their infant daughter, who died shortly after she was born. This legal malpractice action arose out of the dismissal by Stone of the Littletons’ medical malpractice action in superior court and its subsequent refiling in state court. The principal issue presented in this appeal is whether Stone was guilty of malpractice in dismissing and refiling that action pursuant to OCGA §§ 9-11-41 (a) and 9-2-61 (a), when both the dismissal and the renewal took place after the expiration of the applicable statute of ultimate repose but before the issuance of this Court’s opinion in Siler v. Block, 204 Ga. App. 672 (420 SE2d 306) (1992). We conclude that he was not, and we affirm the trial court’s grant of summary judgment in his favor.

1. The Littletons contend the trial court erred in determining that Stone’s voluntary dismissal and renewal of the underlying action did not constitute legal malpractice. The Littletons’ medical malpractice cause of action arose on the date their child was delivered, April 6, 1986. The original medical malpractice action was timely filed on March 31, 1988, the applicable statute of limitation being two years. OCGA § 9-3-71 (a). It was dismissed without prejudice by Stone in superior court on April 16, 1992, and refiled in state court on May 20,1992. The renewal statute, OCGA § 9-2-61 (a), expressly contemplates that its use will avoid the procedural bar of applicable statutes of limitation; it does not mention statutes of ultimate repose. Siler, supra, represents the first Georgia appellate decision holding that “the renewal provisions of OCGA § 9-2-61 (a) may not be used to avoid the bar of the statute of repose.” Id. at 674 (1). Siler was decided by this Court on May 20, 1992, over a month after Stone had dismissed the underlying action in superior court and the very same day it was refiled in state court.

Subsequently, on March 15,1993, the Supreme Court of Georgia addressed this issue for the first time in Wright v. Robinson, 262 Ga. 844 (426 SE2d 870) (1993). The Court in Wright held that “[a] statute of repose stands as an unyielding barrier to a plaintiff’s right of action,” destroying “existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. [Cit.]” Id. at 845 (1). Because a renewal action is a new action, rather than a continuation of the original case, and a new action cannot be based upon a “nonexisting cause of action,” a renewal action cannot be brought after dismissing a prior action after the expiration of the statute of repose. Id. at 846 (1). The law is now clear in this regard.

At the time the underlying suit was dismissed and refiled in this case, however, the law was not so clear. Siler, supra, was this Court’s first pronouncement on this issue. We cannot agree with the Littletons that the holding in Siler was “foreshadowed” by the holding in Hill v. Fordham, 186 Ga. App. 354 (367 SE2d 128) (1988). Although this Court relied on Hill in its decision in Siler, Hill was relied on as authority only for the distinction between statutes of limitation and statutes of repose. Siler, supra at 673. Wright, moreover, was decided by a divided Supreme Court, with Justice Benham dissenting from “the majority’s conclusion that the statute of repose abrogates [a] timely-filed renewal action.” Id. at 846 (Benham, Justice, dissenting). As pointed out in Justice Benham’s dissent, a statute of repose is not “in all cases, the absolute unyielding barrier the majority has erected.” Id. at 847. It is subject to some exceptions. Id.

This is important, because attorneys are not insurers of the results of their efforts on behalf of clients. They will not be held to have breached applicable standards of care except in cases of wilful or negligent failure to apply well-known and accepted legal principles and procedures, either because they are ignorant of them, or because they have failed to act reasonably to protect clients’ interests. Jones, Day, Reavis & Pogue v. American Envirecycle, 217 Ga. App. 80, 83 (2) (456 SE2d 264) (1995). “Unless the law is so well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results.” (Citation and punctuation omitted.) Id. at 83-84 (2). See also Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802) (1976) (evidence of “professional custom” necessary to show acceptability of particular conduct).

In this case, Stone presented his own affidavit in support of his motion for summary judgment. He stated in it that based upon his experience and knowledge as a practicing attorney, “[i]t was the general practice at that time to rely upon the renewal statute regardless of whether a statute of limitation or a statute of repose had expired as of the time of the dismissal of a case, provided that the original case was filed in a timely fashion.” Although the Littletons produced the affidavit of their own expert in opposition to the motion and that expert opined that Stone was negligent, the Littletons’ expert did not contradict Stone’s opinion in this particular. Stone’s assertion regarding the prevailing practice at the time of the dismissal and refiling of the Littletons’ action therefore stands uncontradicted.

We now know that the renewal statute may not be used to avoid the expiration of the statute of repose, but for purposes of this action, it stands uncontradicted that at the time Stone dismissed the Littletons’ medical malpractice action and refiled it, this principle was not “well settled, clear, and widely recognized.” Jones, Day, Reavis & Pogue, supra. Rather, it was the general view that the renewal statute could be used to avoid both statutes of limitation and statutes of repose. It follows that it could not have been a breach of the accepted standard for Stone to use the renewal statute in an attempt to avoid the bar created by the expiration of the statute of repose. The trial court therefore did not err in determining that Stone’s voluntary dismissal and refiling of the underlying action did not constitute malpractice.

2. The Littletons contend the trial court erred in finding that Stone’s failure to research the law, his failure to advise them of known risks inherent in dismissing the underlying action, and his failure to advise them of the voluntary dismissal did not constitute legal malpractice.

We note that contrary to the implication inherent in these enumerations, the trial court did not “find” that Stone failed to research the law, to advise the Littletons of known risks in dismissing the underlying action, or to advise them of the dismissal. These alleged failures were simply contentions of the Littletons below. When the trial judge reached a decision on Stone’s motion for summary judgment, he notified the parties’ counsel of his decision by letter, requesting Stone’s counsel to draw a proposed order, and listing these contentions and his decision that they were not meritorious.

After receiving the letter, Stone’s counsel expressed concern that the trial court’s letter not be misconstrued as findings of fact. By letter to the trial court, he requested that the court either enter a simple order granting Stone’s motion for summary judgment or clarify that these “findings” were simply answers to contentions of the Littletons. Counsel for the Littletons objected to the proposed simple order and drafted a proposed unsigned order incorporating the “findings.” This proposed order was also mailed to the clerk of court for filing. Upon consideration of the views of both counsel, the court chose to enter the simple order granting Stone’s motion for summary judgment and omitting any “findings.” It is clear, therefore, that the trial court made no findings that Stone failed to research the law, failed to advise the Littletons of known risks in dismissing the underlying action, or failed to advise them of the dismissal.

Moreover, the evidence does not support such findings.

(a) With regard to failing to research the law, it is true, as asserted by the Littletons, that Stone admitted he did not actually read (or re-read) OCGA § 9-3-71 (b), the applicable statute of repose, before dismissing the underlying action. But Stone also testified on his deposition that he certainly “considered” the statute, that he was aware of it and familiar with it, and that he knew that no published opinions had held that the renewal statute could not avoid the bar created by its expiration. He testified that he looked at the renewal statute even though he was familiar with it “[bjecause before we would ever file a dismissal . . . and attempt to renew it, we would want to be sure that there had been no changes to the renewal statute that might affect that decision.” He found no changes.

(b) With regard to failing to advise the Littletons of the known risks, Stone testified on his deposition that he did not do so “because I didn’t know there were any.” Nor did other members of the Bar, as. discussed in Division 1, supra. No decisions had yet been published creating the risks.

(c) Finally, the record does show a conflict in the evidence regarding whether Stone advised the Littletons about the dismissal and refiling prior to doing so. Stone testified on his deposition that Mrs. Littleton herself initiated the discussion about dismissing the underlying action in order to have that case heard by a different judge after the judge originally assigned had ruled against the Littletons twice before and had been twice reversed on appeal. Although Mrs. Littleton at her deposition agreed with Stone about this discussion, she later recalled that the discussion had taken place after the dismissal of the underlying suit.

We conclude, however, that this apparent issue of fact is not material. The evidence shows without dispute that Stone timely notified the Littletons of his actions in dismissing and refiling the underlying actions. If Stone’s failure to advise the Littletons of his proposed dismissal and refiling of the underlying action is to support a recovery by the Littletons for legal malpractice, the Littletons must also show that they were harmed by Stone’s failure to consult them before the dismissal. They cannot do so, because Mrs. Littleton testified on her deposition without qualification that had Stone consulted her before dismissing and refiling the underlying action, she would have followed his recommendation.

Decided March 12, 1998

Beltran & Associates, Frank J. Beltran, Charlotte K. Perrell, for appellants.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, Thomas H. Baxley, for appellee.

We appreciate and sympathize with the Littletons’ frustration at being left without an apparent remedy for the tragedy they have suffered in the death of their child. But "we can not change the law on account of sympathy.” (Citation and punctuation omitted.) Booth v. Firemen’s Ins. Co., 223 Ga. App. 243, 246 (1) (477 SE2d 376) (1996). The Littletons have failed to demonstrate legal malpractice on the part of Stone. The trial court therefore did not err in granting summary judgment in Stone’s favor.

Judgment affirmed.

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

       A summary of the protracted litigation in the medical malpractice case may be found in Ob-Gyn Assoc. v. Littleton, 261 Ga. 664 (410 SE2d 121) (1991). See also Ob-Gyn Assoc. v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989); Littleton v. Ob-Gyn Assoc., 199 Ga. App. 44 (403 SE2d 837) (1991); Littleton v. Ob-Gyn Assoc., 194 Ga. App. 787 (391 SE2d 806) (1990); Littleton v. Ob-Gyn Assoc., 192 Ga. App. 634 (385 SE2d 743) (1989).

       We note as well that Justice Sears was disqualified from participating in the decision in Wright, that appeal being a reversal of her denial, as a judge of the superior court, of the medical malpractice defendants’ motion for summary judgment on the same ground.


source: Caselaw Access Project

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

license: Public Domain

text:
    A97A1952.
    HARWELL v. THE STATE.
    (497 SE2d 672)
   Beasley, Judge.

Harwell was convicted of armed robbery (OCGA § 16-8-41 (a)) and aggravated assault with intent to rob (OCGA § 16-5-21 (a) (1)). He and an accomplice used a stun gun to rob the assistant manager at Harwell’s former place of employment, a restaurant. According to the victim, the robbers "stunned ... or shocked [him] down the leg maybe four times on their way out” with the money. Although the assailants wore stocking masks, the victim observed the robbers’ facial characteristics and was familiar with the lead robber’s voice and “person.” He identified Harwell as an assailant while examining a police photographic lineup some two weeks after commission of the crimes charged. A new trial was denied.

1. The first alleged error is the denial of Harwell’s motion to exclude the testimony of a witness who was not on the State’s witness list.

Applicable in this case is OCGA § 17-7-110, which was repealed by Ga. L. 1994, p. 1895, § 1, effective January 1,1995, after Harwell’s indictment. It provided: “Prior to his arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against him is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state in his place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.”

The purpose of this law was to give the defendant reasonable opportunity to interview a witness before trial. Willett v. State, 223 Ga. App. 866, 870-871 (2) (479 SE2d 132) (1996). It is undisputed that, seven days before trial, the State’s attorney verbally informed Harwell’s counsel that the State would be calling an unlisted witness to testify at trial; that the State’s attorney gave defense counsel this witness’ address and telephone number at least four days before trial; and that defense counsel contacted the unlisted witness before trial but she “refused to talk to him.” When defendant moved at trial to exclude her testimony, the court directed the State’s attorney to compel the witness to talk to defense counsel. The State’s attorney complied, as did the unlisted witness.

Defendant was not harmed by the State’s failure to include the ■witness on the written list. The court did not abuse its discretion in denying the motion to exclude her testimony. See Logan v. State, 170 Ga. App. 809 (318 SE2d 516) (1984) (defendant not prejudiced by oral notification prior to trial); see generally White v. State, 253 Ga. 106, 109-110 (3) (317 SE2d 196) (1984).

2. The court did not err in denying defendant’s requested charge on impeachment. The reason is that defendant failed to proffer authenticated copies of the records of the two State’s witnesses targeted. Drake v. State, 245 Ga. 798, 803 (7) (267 SE2d 237) (1980).

3. Using the word “or,” the court charged the jury two of the alternative methods of committing “aggravated assault” as found in OCGA § 16-5-21 (a) (1) and (2). The indictment charged only that aggravated assault was committed because there was an assault “with intent to rob.” It did not encompass assault “[w]ith any object, device, or instrument which when used offensively against a person is likely to or actually does result in bodily injury.” Harwell contends this additional charge requires reversal. But the jury could not have been misled so that it convicted Harwell of the unindicted subsection (2) instead of the indicted subsection (1).

(a) The foreman wrote on the back of the indictment “guilty” of “Count #2,” and in Count 2 the indictment charged only subsection (2). That document is what the jury had out with it to study and decide upon. In writing on the back of the very indictment charging aggravated assault with an intent to rob, the jury was hardly confused that it was convicting him of assault with an offensive weapon likely to result in serious physical injury. Green v. State, 221 Ga. App. 694, 695 (2) (472 SE2d 457) (1996), upheld a conviction of aggravated assault (even though the entire statute had been charged and even though the indictment only mentioned striking the victim with a pistol) because the foreman, in signing the indictment, wrote they found the defendant guilty as charged. Although we do not have the “as charged” language, the logical conclusion that the jury which signs the indictment was not misled still applies.

(b) Three other cases have held the jury was not confused or misled by an overbroad instruction where the judge also read the indictment to the jury verbatim, as is the case here. See Thomas v. State, 268 Ga. 135,141 (17) (485 SE2d 783) (1997) (upheld conviction where indictment charged assault with handgun but court also charged assault with intent to rob or rape; no jury confusion because “the trial court read the indictment verbatim in advising the jury of the offense of assault with a deadly weapon”); Chandler v. State, 213 Ga. App. 46, 47 (2) (443 SE2d 679) (1994) (similar aggravated assault indictment and jury charge; conviction upheld because “[w]hile any reference to attempted rape or robbery certainly was extraneous, ‘we find it highly unlikely that the jury was misled by (this portion of) the charge, since the court also read the indictment to the jury verbatim in advising them of the offense of (assault with a deadly weapon) charged against appellant’ ”); Moore v. State, 207 Ga. App. 892, 894-895 (2) (429 SE2d 335) (1993) (aggravated assault with deadly weapon charged, and jury also charged on assault with intent to murder, rape, or rob; conviction upheld because “the jury was read the language of the indictment along with the statute and no fair risk of prejudice to defendant exists, it being highly probable the verdict was not the product of a misleading instruction”).

(c) Another case excused an overbroad jury instruction because “the trial judge confined the elements of the crime to those charged in the indictment by instructing the jury that the State bore the burden of proving every material allegation in the indictment. This instruction was sufficient to dispel any possible juror confusion about the necessity of convicting [the defendant] for the acts charged in the indictment.” (Citations and punctuation omitted.) McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756) (1996). Here the judge gave a similar limiting instruction.

(d) The jury had no questions indicating it was confused by the instruction as it related to the indictment, or confused because it detected that the instruction was broader than the indictment.

(e) The jury did find defendant guilty of armed robbery (Count 1), which required it to find that defendant took the money and checks “with intent to steal same.” Thus it undeniably found the element described in OCGA § 16-5-21 (a) (1), and it would not matter legally if the jury found in addition that the assault with the stun gun was “with . . . [an] object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). See Green, supra, 221 Ga. App. at 696 (2) (upholding conviction of aggravated assault by striking with a pistol: “we do not believe that [defendant’s] due process rights were violated simply because the jury may have also believed that the assault was committed with the intent to rob”).

(f) But no reasons arose for it to have done so in the first place. There was no jury argument by the State that this latter charge is what it proved or that it was seeking a conviction of this subsection; there was no evidence that the stun gun was the type of weapon described in the subsection; the victim testified only that “They picked up the bag and stunned me or shocked me [with the stun gun] down the leg maybe four times on their way out.” He was not hurt seriously, as is evident from the fact that “the second they left” he called 911 and when the detectives arrived he talked to them for about an hour. There is no mention of his going to the hospital or seeking any medical attention.

We must give some credit to the jury for common sense, for knowing that a stun gun used in the manner it was used in this case is not an “object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” It was not used to beat him over the head, for example.

(g) Ferguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996), says the error in charging the jury the unindicted alternative is reversible only “if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a way not alleged in the indictment.” There is not a reasonable possibility of that in this case.

The United States Supreme Court articulates the test as one of “reasonable likelihood,” as recently recognized and applied by the Supreme Court of Georgia in Bridges v. State 268 Ga. 700, 703 (492 SE2d 877) (1997). The latter instructs: “[E]rroneous jury instructions are not judged in isolation, but rather are considered in the context of the entire jury charge and the trial record as a whole to determine ‘ “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” ’ [Cit.]” Second, an erroneous jury charge is not reversible unless it causes harm.”

In Bridges, a conviction following an erroneous charge on reasonable doubt as to innocence, a matter of constitutional dimension, survived appellate review when measured by these principles. Surely the charge complained of here is subject to no greater scrutiny. Such an examination of the charge results in the conclusion that giving it did not constitute reversible error.

(h) Griffin v. State, 214 Ga. App. 813 (449 SE2d 341) (1994), upon which appellant relies heavily, is distinguishable. The State introduced evidence that Griffin and other defendants “mercilessly beat” the victim with their feet and fists, and the court instructed the jury “ ‘the State contends that shoe-clad feet and fists were weapons used by one or more of the defendants in commission of aggravated assault.’ ” Id. at 814, 815 (2). This gave the jury ample reason to find aggravated assault other than by assault by shooting with a handgun as alleged in the indictment.

The unrelated portion of the charge did not constitute reversible error in this case.

4. The dissents would rule that the two offenses must be merged for sentencing. Harwell did not object in the trial court to the sentences imposed nor contends that the aggravated assault and armed robbery offenses merged. Thus, the matter was not preserved for appellate review. Bridges v. State, 223 Ga. App. 339 (477 SE2d 913) (1996). Nor did he raise this issue in his enumerations of error, which is another reason we do not consider it on appeal. Lee v. State, 265 Ga. 112,116 (8) (454 SE2d 761) (1995); Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990). Queen v. State, 210 Ga. App. 588 (2) (436 SE2d 714) (1993), is distinguishable in that the defendant there challenged the legality of his sentence, albeit on other grounds. Harwell has not challenged his sentence. The statement in Bryant v. State, 229 Ga. App. 534, 536 (494 SE2d 353) (1997), that a case is regarded as pending until finally disposed of by imposition of a lawful sentence does not mean that we will ferret out errors not objected to nor raised on appeal.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I concur as to Divisions 1 and 2 of the majority opinion, but dissent with regard to Division 3 because I cannot go along with the majority’s holding that the trial court’s unauthorized jury charge could not have reasonably caused the jury to convict defendant of committing aggravated assault in a manner not alleged in the indictment, i.e., with an offensive weapon rather than with intent to rob.

In addition to instructing the jury as to aggravated assault with intent to rob as charged in the indictment, the trial court charged that aggravated assault is committed when a person commits an assault with an “instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.” Defendant contends this additional charge requires reversal. I am constrained to agree.

It is error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner. Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556). See Griffin v. State, 214 Ga. App. 813, 815 (2) (449 SE2d 341). In the case sub judice, the trial court not only failed to give remedial instructions limiting the jury’s consideration to the charge describing the elements of the indicted offense, the trial court emphasized its overly broad aggravated assault charge by prefacing it with the general (and inaccurate) direction to the jury that, “[i]n count two of the indictment this defendant is charged with the offense of aggravated assault.” These deficiencies, however, require reversal only if there is a reasonable possibility that the jury may have convicted defendant of committing the crime charged in a way not alleged in the indictment. See Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909); Green v. State, 221 Ga. App. 694 (2) (472 SE2d 457). This requires an examination of the evidence supporting the crimes charged.

While the evidence adduced at trial reveals that defendant and an accomplice used a “stun gun” to rob the assistant manager at defendant’s former place of employment, the victim testified that, after seizing the loot, the robbers “stunned ... or shocked [him] down the leg maybe four times on their way out.” This proof not only authorizes defendant’s conviction for armed robbery, but also authorizes a finding that the armed robbery was complete when the robbers assaulted the victim by stunning or shocking the victim with a stun gun. Glass v. State, 199 Ga. App. 530, 532 (2) (405 SE2d 522). Accordingly, believing it likely that the jury convicted defendant of aggravated assault with an offensive weapon rather than with intent to rob (as indicted), I would reverse defendant’s aggravated assault with intent to rob conviction.

Neither the majority’s holding nor the fact that defendant mercilessly “stunned ... or shocked” the victim with a stun gun cures the irreparable fact that the State indicted defendant for the wrong offense. Defendant’s conviction for aggravated assault with intent to rob must, sooner or later, be reversed because the facts supporting defendant’s armed robbery conviction also support his conviction for aggravated assault with intent to rob. Such a merger of offenses requires reversal when, as in the case sub judice, a defendant is sentenced separately for the merged offense. Redding v. State, 193 Ga. App. 50, 52 (4) (386 SE2d 907).

I am authorized to state that Judge Eldridge joins in this dissent.

Eldridge, Judge,

dissenting.

I concur fully in Presiding Judge McMurray’s dissent in this case. I write separately to make the following points.

1. When an illegal sentence is discovered by this Court through a review of related issues, we will address it. Queen v. State, 210 Ga. App. 588, 589-590 (2) (436 SE2d 714) (1993) (Beasley, P. J., for the majority).

If the majority is correct and the jury found Harwell guilty of aggravated assault with intent to rob, then the offense merges with the armed robbery conviction, and Harwell’s conviction and sentence for aggravated assault are illegal and void. Griffin v. State, 172 Ga. App. 184 (322 SE2d 295) (1984). While Harwell may be prosecuted for both offenses, he “may not, however, be convicted of more than one crime if [one] crime is included in the other.” (Emphasis supplied.) OCGA § 16-1-7 (a) (1).

Further, we recently held that when a void sentence has been imposed, “the case is to be regarded as pending until it is finally disposed of by the imposition of a lawful sentence” (Emphasis in original.) Bryant v. State, 229 Ga. App. 534, 536 (494 SE2d 353) (1997). Thus, regardless of whether the issue was raised properly, if a void sentence has been imposed, this Court cannot “affirm” the conviction, because the case is still pending as a matter of law. The promotion of such legal limbo makes little sense.

A sentence which is void ab initio may be challenged at any time. Judicial economy and fairness “dictate that that which should have been done be done.” Jefferson v. Ross, 250 Ga. 817, 819 (301 SE2d 268) (1983).

2. As to the merits of Harwell’s claim, the majority finds that we can be reasonably sure the jury convicted on the indicted offense, aggravated assault with intent to rob, because:

(a) The trial court “read the indictment to the jury verbatim in advising them of the offense.”

It is important to recognize that this is not the law. The cases relied upon by the majority for the above proposition did not base their holdings solely upon the “verbatim” recitation of the indictment as does the majority. In each of the cases cited by the majority: (1) there was no evidence to support the incorrect jury charge; (2) the incorrect charge was inapplicable under the facts of the case; and (3) the indictment was read verbatim. That is not the situation here, where the problem is that we do have evidence of the unindicted offense, and the trial court authorized the jury to convict on the unindicted offense under Count 2 of the indictment.

(b) The jurors wrote “Count two: guilty” on the back of the “very indictment.”

This is meaningless when the trial judge told the jury that Count 2 could be committed in more than one way. Further, the jury did not write “guilty as charged” as they did in another case incorrectly cited by the majority as authority for upholding this conviction, Green v. State, 221 Ga. App. 694, 695 (472 SE2d 457) (1996).

(c) There was no evidence that the stun gun is an “object or device likely to cause serious injury” so as to support a conviction on the unindicted form of aggravated assault.

If the stun gun was a sufficient “offensive weapon” to support Harwell’s armed robbery conviction, under the facts of this case it was sufficient to support a conviction for aggravated assault with an object or device likely to cause injury.

Even the trial judge, when questioned by defense counsel on why he charged aggravated assault with a device likely to cause injury, stated, “Well, didn’t he have an offensive weapon? Or device? The charge fits the facts of the case.”

If the judge was “confused” as to which form of aggravated assault was proper under the facts and the indictment, this Court can be reasonably sure the jury was as well.

In fact, herein the prosecution made a mistake by indicting for the wrong form of aggravated assault; the trial court made a mistake by charging the jury with the right, but unindicted, form of aggravated assault; and in my view, this Court makes a mistake by upholding it all.

Decided March 12, 1998

Hagler, Kyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.

3. Accordingly, the aggravated assault conviction must go, whether by recognizing that the jury charge thereon requires a reversal, as advocated by Presiding Judge McMurray and myself, or by recognizing that the void conviction and sentence thereon require a reversal and remand, as is the case under the majority’s analysis.

       See OCGA § 5-5-24 (c).

       Contrary to the majority, I believe the victim’s testimony that the robbers “stunned ... or shocked” him with a stun gun would authorize a finding that such a device was used against the victim as an offensive weapon. While the majority’s “common sense” analysis regarding this issue may indicate that a stun gun did not seriously injure or permanently harm the victim, the majority’s analysis does not exempt the likely prospect that the jury resolved the issue against defendant and in favor of the trial court’s erroneous jury instruction. See Butts v. State, 153 Ga. App. 464 (265 SE2d 370), and cits.

        Thomas v. State, 268 Ga. 135, 141 (485 SE2d 783) (1997); Chandler v. State, 213 Ga. App. 46, 47 (443 SE2d 679) (1994); Moore v. State, 207 Ga. App. 892, 894-895 (429 SE2d 335) (1993).

       Especially when the evidence showed that shocks from the gun forced the victim to the floor in pain, and an officer testified that the recovered stun gun was an offensive weapon.


author: McMurray, Presiding Judge.

text:
    A97A2278.
    FEDERAL NATIONAL MORTGAGE ASSOCIATION et al. v. DeMOONIE.
    (497 SE2d 677)
   McMurray, Presiding Judge.

Plaintiff DeMoonie filed a petition in equity seeking a temporary restraining order and permanent injunction to stop the foreclosure of plaintiff’s property by defendant Federal National Mortgage Association and defendant Suntrust Mortgage, Inc. In her initial petition, plaintiff alleged that she had mortgaged certain real property in Houston County with defendants, that a residential house on this property was severely damaged by fire and made unlivable, that after the fire plaintiff had demanded payment for the damage on her homeowner’s insurance policy with Grange Mutual Insurance Company (“Grange”), that Grange had refused to pay, that plaintiff had filed suit against Grange, that the condition of the house on the property has rendered the property practically worthless, that if defendants are allowed to foreclose, sell the property, and seek a deficiency, the amount of said deficiency balance would be much greater than if the property were not damaged by fire, that defendants have given plaintiff no assurance that they will proceed against Grange to collect on the homeowner’s policy on the subject property, and that there is no remedy at law to protect the plaintiff’s interest in the subject property, and in her claim against Grange. Plaintiff’s petition was filed March 30, 1995, and an order granting a “temporary restraining order” was entered on April 3, 1995.

By amendment to her complaint, plaintiff added claims for monetary damages including her court costs in filing this action, an amount equal to the payoff of the mortgage, an award to compensate her for emotional distress, and an award of punitive damages. Plaintiff also expanded on her factual allegations to maintain that under the terms of the homeowner’s insurance policy issued by Grange, the defendants could have sought payment of the mortgage on the property regardless of the cause of the fire, but that defendants did not utilize this opportunity to protect the plaintiff and receive funds equal to the mortgage on the property, and instead filed a foreclosure action.

On January 8, 1997, defendants filed a motion seeking an order requiring plaintiff to tender funds in an amount representing the principal, interest, late charges and other fees and charges in connection with the mortgage into the registry of the trial court, or in the alternative the dissolution of the restraining order prohibiting the foreclosure on plaintiff’s property. In support of their motion, defendants noted that with the passage of time plaintiff has become more and more delinquent on the loan upon which they are unable to act, that such is to their detriment, and that plaintiff was not entitled to any relief against foreclosure in the absence of any tender of the full amount of the secured indebtedness.

Defendants’ motion requiring tender or alternately dissolution of the restraining order was denied by the trial court via an order entered April 8, 1997. The trial court’s order notes that the previously entered “injunction” is based on the decision in Norris v. Cady, 231 Ga. 19 (200 SE2d 102) and that plaintiff was successful on the related claim against Grange and would soon know the result of the appeal of that judgment to this Court.

Defendants appealed to the Supreme Court of Georgia which transferred the appeal to this Court. The Supremé Court transfer order notes the then pending appeal of plaintiff’s judgment against Grange as well as the statement in the appealed order of the trial court that the decision in that appeal “will most likely resolve the conflict in the instant action.” In this context, the Supreme Court directs that the case sub judice be transferred to this Court to be considered in the light of the decision of the above cited case. Held:

Apparently, the trial court’s refusal to grant defendants’ motion was predicated upon an analysis based upon the decision in Norris v. Cady, 231 Ga. 19, supra, and which involved some conclusion that plaintiff’s judgment against Grange for the insurance proceeds would provide funds to satisfy the debt and serve in the place of the tender usually required to support an injunction to stop a foreclosure sale. Defendant argues on appeal that the trial court’s conclusion is flawed. Since the transfer of the case sub judice to this Court, plaintiff’s judgment against Grange has been reversed by this Court. Grange Mut. Cas. Co. v. DeMoonie, 227 Ga. App. 812 (490 SE2d 451). Had plaintiff’s judgment against Grange been upheld on appeal, this appeal would present certain viable questions of law concerning application of the decision in Norris v. Cady, 231 Ga. 19, supra, or concerning construction of the terms of the contract (i.e., the security deed) between plaintiff and defendants. Instead, the factual foundation of the trial court’s denial of defendants’ motion is removed and the sole enumeration of error submitted by defendants has become an abstract question which has no answer under the presently existing facts. The issues raised in the present appeal have been rendered moot by the decision in Grange Mut. Cas. Co. v. DeMoonie, 227 Ga. App. 812, supra.

Decided March 12, 1998.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Peter L. Lublin, Scott H. Michalove, for appellants.

Walter G. Sammons, Jr., for appellee.

Under the Appellate Practice Act, the dismissal of an appeal is mandatory where the questions presented have become moot. OCGA § 5-6-48; Bergmann v. McCullough, 218 Ga. App. 353, 356 (5) (461 SE2d 544). See also Gober v. Colonial Pipeline Co., 228 Ga. 668, 670 (1) (187 SE2d 275).

Appeal dismissed.

Beasley and Smith, JJ, concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A2323.
    WALDROP v. THE STATE.
    (498 SE2d 337)
   Beasley, Judge.

After a jury trial, judgment was entered against Waldrop for criminal damage to property in the second degree. Proof showed that he stopped his pickup truck in a vacant area, got out, and fired several rounds from a pistol into three out-of-service transformers owned by Georgia Power Company. Wilhite, a Georgia Power senior security investigator, testified that the damaged transformers were leaking coolant; that a team of Georgia Power employees was dispatched to clean up the mess; and that replacing the damaged transformers, which were not in service, would cost over $4,000. Wilhite also authenticated Georgia Power business records showing that the clean-up operation cost over $1,000.

Waldrop’s second enumeration of error requires reversal of the judgment and a new trial.

Given the evidence produced at Waldrop’s trial, he was entitled to his requested charge on the lesser included offense of criminal trespass, a misdemeanor prohibited in OCGA § 16-7-21. The reason is that the value of the property damaged was not proven beyond a reasonable doubt to exceed $500. This fact is an element of criminal damage to property in the second degree, OCGA § 16-7-23 (a) (1).

Waldrop did not seek a directed verdict but only the charge on the lesser offense. He would have been entitled to a directed verdict on the charged offense because of the absence of evidence of value, but since the sufficiency of the evidence is challenged by his first enumeration of error, reversal is demanded. The standard for granting such a motion and for testing sufficiency on appeal is the same. Noble v. State, 225 Ga. App. 470 (484 SE2d 78) (1997).

The expense to the owner of the damaged property for labor in dealing with the damage is not the element which must exceed $500 and cannot be used as a substitute for the value of the damage to the property. No precedent is given for this expansion of the meaning of the statute. Seaboard Air-Line R. Co. v. Smith, 3 Ga. App. 644, 648 (60 SE 353) (1908), and Bembry v. State, 155 Ga. App. 847 (1) (273 SE2d 208) (1980), as well as numerous other cases on the subject of value of the damage, focus on the tangible damaged property itself. That is simply because the crime in its essence is “criminal damage to property,” OCGA § 16-7-23 (a), not total expenses of the owner in connection with property damage.

Proof of the value may be shown in a number of ways. The owner’s testimony stating the cost of repair to the property plus photos of the damaged item is sufficient. Holbrook v. State, 168 Ga. App. 380 (1) (308 SE2d 869) (1983); Van Voltenburg v. State, 138 Ga. App. 628 (1) (227 SE2d 451) (1976). The owner’s testimony giving the original cost of the item, its age, and its zero value as useless in the damaged condition is also sufficient, “within the contemplation of the statute.” Russell v. State, 188 Ga. App. 167, 168 (1) (372 SE2d 445) (1988) (physical precedent).

On the other hand, the owner’s opinion of the value, without the reasons supporting this opinion, has no probative value. Hildebrand v. State, 209 Ga. App. 507, 508 (1) (433 SE2d 443) (1993); Johnson v. State, 156 Ga. App. 411 (274 SE2d 778) (1980), cert, denied, 451 U. S. 989 (101 SC 2327, 68 LE2d 848) (1981); Loethen v. State, 158 Ga. App. 469, 470 (1) (280 SE2d 878) (1981); Holbrook, supra at 381 (1). As stated in Loethen, supra at 470, “[I]n order to express a competent opinion as to the value of an item, a non-expert must show that he has sufficient information upon which to base such an opinion.”

In keeping with the Code, the indictment charged that Waldrop “did intentionally damage . . . three power transformers . . . and said damage exceeds $500.” In its direct examination of Wilhite, who was the only witness on the issue of value, the State elicited a description of the damage, the function of transformers, and the “monetary loss” to the owner, the latter through a business record of the owner made to show the expenses and for billing purposes. The document itemizes labor expenses, miscellaneous and material expenses, and vehicle and equipment expenses. The three transformers are shown as costing $927.28 each. The investigator “understood” that the transformers “went for salvage ... or to be disposed of.” But he did not know how old they were or their condition other than that they had the bullet holes in them. He had seen them in their damaged condition still in their original location on top of the poles and agreed that they could have been new or as old as 20 years.

He acknowledged that transformers are replaced from time to time in the course of maintenance. He further testified that these transformers were not in use because the residences which they had served were removed when the property was purchased for eventual development as an airport runway. He did not know what is done with such transformers when they are no longer needed but, he said, “I can assume that some would be recycled, used somewhere else, and some would be put out of service.” It would depend on the condition of the transformer. He did not know the condition of these three damaged ones.

The evidence does include two photographs of the damaged transformers up on the poles. One photo shows one transformer and the other photo is a closer view, showing three transformers two of which have holes. But these photos do not fill in the gap left by the investigator’s testimony as to the value of the damage. For example, the price of new transformers may have been the value, if the transformers were reduced by the shooting to salvage value and that was zero. On the other hand, they may have been repairable at some specific cost below $500 and reusable.

The evidence is absent. And as in Hildebrand, supra at 508 (1), “there was no competent evidence from which the jury could determine that the value of the damage for which defendant was responsible was in excess of $500, an essential element of the indicted crime.” The same type impediment to conviction which exists in Waldrop’s case was also found in Bereznak v. State, 223 Ga. App. 584 (1) (478 SE2d 386) (1996). As stated there, proof of cost alone is insufficient; it must be coupled with evidence of the item’s condition before and after the damage.

Consequently, Waldrop was entitled to a jury charge on criminal trespass, which requires only that there be proof that a defendant “intentionally damage[d] any property of another [without his consent] and the damage thereto is $500.00 or less or knowingly and maliciously interfere^] with the possession or use of the property of another person without [his] consent.” OCGA § 16-7-21 (a).

Since the jury was not instructed to consider criminal trespass, and since the evidence does not support the conviction, the judgment is reversed.

Judgment reversed.

Andrews, C. J., Birdsong, P. J., Smith and Ruffin, JJ., concur. McMurray, P. J, and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent. Defendant Waldrop was convicted by a jury of the offense of criminal damage to property in the second degree. This conviction is supported by proof that defendant stopped his pickup truck in a vacant area, exited the vehicle, and fired several rounds from a pistol into three out-of-service transformers owned by Georgia Power. Company. Billy Wilhite, a Georgia Power security investigator, testified that the damaged transformers were leaking coolant; that a team of Georgia Power employees was dispatched to clean up the mess, and that, although the damaged transformers were not in service, replacing them would cost over $4,000. Mr. Wilhite also authenticated Georgia Power business records showing that the clean-up operation cost over $1,000.

1. Defendant contends the evidence is insufficient to support his conviction for criminal damage to property in the second degree because the State failed to prove that the damage to Georgia Power’s transformers exceeded $500, an essential element of the crime under OCGA § 16-7-23 (a) (1).

I do not believe that proof of damage to Georgia Power’s transformers is the controlling issue in the case sub judice. “ ‘ “(D)amage to personal property [under OCGA § 16-7-23 (a) (1)] means all injuries which one may sustain in respect to his ownership of personal property.” ’ Seaboard Air-Line R. Co. v. Smith, 3 Ga. App. 644, 648 (60 SE 353) (1907).” Bembry v. State, 155 Ga. App. 847 (1) (273 SE2d 208). In the case sub judice, Billy Wilhite authenticated a business record (which was admitted into evidence without objection) indicating that Georgia Power expended over $1,000 in labor expenses to clean the mess precipitated by defendant’s criminal act. It is my view that this evidence, even without proof as to the cost of damage to Georgia Power’s transformers, authorizes the jury’s finding, beyond a reasonable doubt, that defendant’s criminal acts caused damage in excess of $500 in violation of OCGA § 16-7-23 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant also challenges the sufficiency of the evidence, arguing that the State’s circumstantial proof that he committed criminal damage to property in the second degree does not exclude his explanation and the reasonable hypothesis that a passenger in defendant’s truck shot Georgia Power’s transformers. Defendant asserts that his explanation is not only consistent with the proved facts, but is also supported by a physician’s testimony that defendant is too weak to aim and fire a pistol.

“ Although a conviction based on circumstantial evidence is authorized only if the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused (OCGA § 24-4-6), if the evidence meets this test, circumstantial evidence is as probative as direct evidence. Whether this burden has been met is a question for the jury. When the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law.’ (Citations, punctuation and indention omitted.) Mason v. State, 199 Ga. App. 691, 692 (1) (405 SE2d 747) (1991).” Harris v. State, 223 Ga. App. 661 (478 SE2d 458).

Decided March 12, 1998

David J. Walker, Sr., Thomas J. Ousley, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

While a physician opined in the case sub judice that defendant is too weak to aim and fire an unsupported pistol, this doctor admitted on cross-examination that it is not impossible for defendant to fire a pistol. Further, an arresting officer testified that he observed defendant at the crime scene sitting alone in the driver’s seat of a pickup truck; that he observed liquid leaking from bullet holes in Georgia Power’s nearby transformers; that he found a pistol in the seat next to where he observed defendant sitting, and that he observed pistol shell casings on the ground outside the .driver’s side of defendant’s truck. This officer also testified that he observed no other person at the crime scene; that a search of the area revealed no evidence of any other person, and that a pile of debris next to the passenger’s door inside the truck’s cab indicated to the officer that no person had recently exited defendant’s truck. I believe this evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of criminal damage to property in the second degree. Jackson v. Virginia, 443 U. S. 307, supra. See Johnson v. State, 208 Ga. App. 747, 748 (1) (431 SE2d 737).

3. I also dp not believe the trial court erred in denying defendant’s request to charge on the lesser included offense of criminal trespass because there is no proof refuting the State’s evidence that Georgia Power expended over $1,000 to clean up the mess precipitated by defendant’s criminal acts. Moses v. State, 264 Ga. 313, 315 (2) (444 SE2d 767).

I am authorized to state that Judge Eldridge joins in this dissent.


author: McMUERAY, Presiding Judge.

text:
    A97A2568.
    BOYD v. CRAWFORD.
    (498 SE2d 762)
   McMUERAY, Presiding Judge.

James Boyd filed this appeal, pro se, from a superior court judgment affirming a probate court order granting Michelle D. Crawford’s petition for letters of administration of the estate of Christopher Allen Boyd (“the estate”), dismissing Boyd’s caveat to Crawford’s petition, and dismissing Boyd’s application for issuance of letters of administration of the estate. The superior court’s order and judgment provides as follows:

“The above-styled action came on regularly for hearing on July 1, 1997. [Boyd], acting Pro Se, having scheduled the hearing of the same date, appeared initially at the hearing. [Crawford] was present along with her legal counsel, Edward M. Manigault and Jim R. Green. . . . However, after [Boyd] and [Crawford] had discussed entering into a Consent Order, [Boyd] left the hearing prior to its commencement and without reason, stating that he would return. [Boyd] failed to return prior to the initiation of the hearing, which occurred minutes later, instead phoning court personnel to inform them he would be unable to attend due to other business. [Boyd] requested that court personnel reschedule the hearing. [Boyd] did not receive permission from the Court to leave the courtroom prior to commencement of the hearing. Therefore, [Crawford] requested that the hearing commence as scheduled by [Boyd] in order to avoid unreasonable delay. The Court granted [Crawford’s] request, in part due to [Boyd’s] impermissible departure; in part due to the fact that [Boyd] had filed numerous pleadings with the Court descriptively expressing [his] position; in part to avoid a miscarriage of justice due to the fact that several key witnesses from out of state had made themselves available by telephone for this hearing to corroborate Attachments A, B & C; and in part to avoid further unreasonable delay. At that juncture, [Crawford] proceeded to present evidence to the court.

“After reviewing all pleadings of record, as well as those from the Probate Court, all evidence presented at the hearing (see Attachments A, B & C), and arguments of [Crawford’s] counsel,

“IT IS HEREBY ORDERED AND ADJUDGED, that the decision of the Probate Court of Barrow County is affirmed and letters of Administration issued by the Probate Court to [Crawford] shall stand as originally granted.” Held:

1. Crawford filed a motion for our Court to expedite the case sub judice, arguing that Boyd’s appeal delays settlement of a tort action which will bring revenue into the estate. This allegation, however, provides no basis for this Court to exercise its inherent power to place the case sub judice before other matters which are also regularly before this Court. Compare Shore v. Shore, 253 Ga. 183, 184 (318 SE2d 57); Stuckey v. Richardson, 188 Ga. App. 147, 148 (372 SE2d 458). Accordingly, Crawford’s motion to expedite this appeal is hereby denied.

2. Boyd contends in his second enumeration of error that the superior court erred in failing to grant his application for issuance of letters of administration, arguing that a majority of the heirs selected him to serve as administrator of the estate.

A directed verdict is authorized only when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a). A grant of directed verdict is a ruling that the evidence and all reasonable deductions therefrom demand a particular verdict. OCGA § 9-11-50 (a). Other than unauthenticated notes, letters and filings, there is no evidence, transcript or admission in the case sub judice either supporting or refuting Boyd’s assertion that he is entitled, as a matter of law, to serve as the estate’s administrator. Consequently, the superior court did not err in affirming the probate court’s denial of Boyd’s application for issuance of letters of administration of the estate.

3. Boyd asserts five enumerations of error, complaining that the superior court erred in adjudicating his de novo appeal without the benefit of a trial or an evidentiary hearing. Specifically, Boyd contends the superior court’s judgment was the product of unfair manipulations and duplicity because the superior court judge, after requiring him to wait in the courtroom for three hours, abruptly called his case for trial during the court’s regular noon-time lunch hour and just minutes after Boyd left the courtroom to place a telephone call. Boyd suggests that, in lieu of a hearing, the superior court judge simply entered the courtroom and allowed Crawford’s attorneys to prepare a final judgment with (as quoted from Boyd’s third enumeration of error) “more lies by [Crawford’s] attorney.”

Although Boyd’s assertions about the trial court’s unfair manipulations and duplicity are unsupported by the record, the superior court’s order reveals that the court exceeded its authority in adjudicating Boyd’s appeal based on his failure to appear at the scheduled hearing. The trial court’s authority to adjudicate Boyd’s appeal for want of prosecution is established by OCGA § 9-11-41 (b) (1). This Code subsection provides that “[a] dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits. . . .” Since the superior court’s order states that it is partly based on Boyd’s unexcused absence from court, the superior court had no authority to adjudicate the matter and was limited to dismissing, without prejudice, Boyd’s appeal. Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226 (398 SE2d 253). Accordingly, we must vacate the trial court’s judgment and remand the case sub judice for entry of an order and judgment consistent with this opinion. OCGA § 9-11-41 (b) (1); Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226, supra.

Decided March 12, 1998.

Jim Boyd, pro se.

Deming, Parker, Hoffman, Green & Campbell, James R. Green, Jr., for appellee.

Judgment vacated and case remanded. Motion to expedite appeal denied.

Beasley and Smith, JJ, concur.

       The items identified as “Attachments A, B & C” in this order are documents indicating that other purported heirs wish Crawford to serve as the estate’s administrator.


author: Blackburn, Judge.

text:
    A98A0075.
    DEBARDELABEN v. SHOWBIZ PIZZA TIME, INC.
    (498 SE2d 764)
   Blackburn, Judge.

Viola Debardelaben appeals the trial court’s grant of summary judgment to defendant Showbiz Pizza Time, Inc. (Showbiz) in the underlying slip and fall case. Debardelaben contends that the trial court erred in determining that Showbiz exercised ordinary care to protect her against unreasonable risk of harm and in finding that she failed to exercise ordinary care for her own safety.

“In determining whether the trial court properly granted summary judgment, we review the record evidence de novo to determine whether that evidence, with all inferences construed in [Debardelaben’s] favor, showed as a matter of law that [Showbiz was entitled to summary judgment] .’’Bell v. Smith, 227 Ga. App. 17 (488 SE2d 91) (1997).

In the present case, the record reveals that Debardelaben and her family ate dinner at a Chuck E Cheese restaurant owned by Showbiz. After dinner, Debardelaben went to the rest room. Upon entering the rest room, Debardelaben slipped and fell. While on the floor, Debardelaben noticed that the floor was wet. She lay on the floor for ten minutes and yelled for help; however, no one came to assist her so she got up and went to the front of the restaurant where she spoke with a manager. Debardelaben deposed that upon walking into the rest room she could not tell that the floor was wet, but that after she fell she could see that the floor was wet by looking very closely. She deposed that there was no sign posted warning of a wet floor. Kenneth Brooks, the general manager of the Chuck E Cheese restaurant, averred that he was working on the night Debardelaben fell and that he checked the rest room floor after Debardelaben notified him of her fall. Brooks further averred that the floor was dry and that a “CAUTION WET FLOOR” sign was in plain view of anyone walking into the rest room.

Our Supreme Court recently reiterated that “to state a cause of action [in a slip and fall case] the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” (Punctuation omitted.) Robinson v. Kroger Co., 268 Ga. 735, 736 (493 SE2d 403) (1997) (quoting Alterman Foods v. Ligón, 246 Ga. 620, 623 (272 SE2d 327) (1980)).

In the present case, because Showbiz had mopped the floor, it had constructive knowledge that the floor was wet. However, because the facts are conflicting as to whether a warning sign was present, we cannot say as a matter of law that Showbiz exercised ordinary care in keeping the premises safe. The cases cited by Showbiz involving placement of warning signs are inapplicable because in the present case, Debardelaben averred that after her fall she looked for a warning sign and did not see one. This evidence directly conflicts with the manager’s affidavit which attempts to establish that a warning sign was placed in a spot visible to anyone entering the rest room. If so, the sign would affirm the fact that the area was indeed wet, and that defendant knew it. Although Showbiz characterizes Debardelaben’s affidavit as self-serving, it is no more self-serving than the manager’s affidavit stating that a caution sign was placed in a location visible to anyone entering the rest room. It is for a jury to determine which witness is more credible, not this Court.

Additionally, we cannot say that as a matter of law Debardelaben was not exercising ordinary care for her own safety. See Robinson, supra. See also Dobbins v. Bi-Lo, 230 Ga. App. 119 (494 SE2d 397) (1998). Therefore, the trial court erred in granting Showbiz’ motion for summary judgment.

Judgment reversed.

McMurray, R J, and Senior Appellate Judge Harold R. Banke concur.

Decided March 12, 1998.

Charles M. Morris, for appellant.

Drew, Eckl & Farnham, Lucian Gillis, Jr., appellee.


author: Andrews, Chief Judge.

text:
    A98A0126.
    THOMAS v. THE STATE.
    (498 SE2d 760)
   Andrews, Chief Judge.

Russell Thomas was convicted in a bench trial of trafficking in cocaine, possession of heroin with intent to distribute, and misdemeanor possession of marijuana. On appeal, he claims the trial court erred by denying his motion to suppress evidence found by police in searches of his person and his automobile and in a statement he gave to police after his arrest. We find no error and affirm the convictions.

Augusta police received information from an informant of unknown trustworthiness that on March 3, 1994, a black male named Russell would deliver approximately two grams of heroin to the Masters Inn at 3207 Washington Road in Augusta. The informant described the automobile that the man would be driving to the Masters Inn and told police that he would be driving to Augusta from Columbia, South Carolina. On the morning of March 3, Augusta police observed a black male driving an automobile matching the description given by the informant as it arrived in Augusta on Interstate 20 traveling west from the direction of Columbia, South Carolina. Police followed the automobile to the Masters Inn at 3207 Washington Road. After the automobile parked at the Masters Inn, police approached, identified themselves as police, and ordered Thomas, who was the driver and sole occupant, to get out of the automobile.

When Thomas exited the automobile, the police asked him for identification and informed him that they had information that he was carrying illegal drugs. A police officer testified that when Thomas got out of the automobile he kept placing his hand into his jacket pocket. The officer told Thomas to take his hand out of the pocket. When Thomas refused to do so, the officer, fearing for his own safety, forcibly removed Thomas’ hand from the pocket and reached in the pocket and found a bag containing suspected heroin. At that point officers arrested Thomas, searched his person, and found suspected cocaine in his pants pocket. Police asked Thomas for permission to search the automobile and Thomas consented. A search of the automobile produced suspected marijuana, additional suspected cocaine, and $1,106 in United States currency.

The suspected illegal substances were tested at the State Crime Lab and proved to be 1.9 grams of a substance containing heroin, approximately 250 grams of a substance with a purity of 67 percent cocaine, and 12.4 grams of marijuana. Subsequent to his arrest, Thomas gave a statement to police in which he admitted that at the time of his arrest he was delivering the heroin to a person he intended to meet at the Masters Inn. He also admitted that he was transporting the seized cocaine from Columbia to Atlanta.

Although” the informant who gave the information to the police was of unknown trustworthiness, thé police were able to corroborate the information by observing the described automobile and driver arrive in Augusta on the morning of March 3 from the direction of Columbia and travel to the exact location described by the informant. Some of the information provided by the informant, such as the description of Thomas and his automobile, would have been available to the general public, but the general public would not have known in advance that Thomas would arrive in Augusta in the predicted time frame and drive to the Masters Inn located at 3207 Washington Road. Because the informant’s ability to predict Thomas’ future behavior demonstrated that he had inside information and was familiar with Thomas’ affairs, it was reasonable for the police to conclude that the informant had reliable information about Thomas’ illegal drug activity. Britton v. State, 220 Ga. App. 120, 121 (469 SE2d 272) (1996); Alabama v. White, 496 U. S. 325, 332 (110 SC 2412, 110 LE2d 301) (1990). The information provided by the informant exhibited sufficient indicia of reliability to provide the police with reasonable suspicion to conduct an investigatory stop of Thomas and to order him to get out of the automobile for this purpose. Id.; Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); Pennsylvania v. Mimms, 434 U. S. 106, 111 (98 SC 330, 54 LE2d 331) (1977).

In conducting an investigatory stop pursuant to Terry v. Ohio, a police officer is entitled to conduct a limited pat-down search of the suspect for weapons if the officer reasonably believes that the suspect poses a threat to his safety or others. Terry, supra, 392 U. S. at 28-31. Given that the present investigatory stop involved a suspect in an automobile who was suspected of illegal drug activity, it was clearly reasonable for the officer to suspect that Thomas could be armed. Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991); Wilson v. State, 210 Ga. App. 886, 887 (437 SE2d 867) (1993). Accordingly, the officer would have been authorized to conduct a pat-down search of Thomas to determine whether he was armed. Id. Normally, this search involves following a two-step process where the officer must first conduct a nonintrusive pat-down of the surface of the suspect’s clothing and then intrude beneath the surface only if he feels something that could be a weapon. Barrett v. State, 212 Ga. App. 745, 748 (443 SE2d 285) (1994). However, an officer conducting an investigatory stop of a potentially armed suspect is not required under all circumstances to follow the two-step pat-down procedure. Hayes, supra at 206. When faced with threatening conduct by a suspect, an officer is entitled to take reasonable action to protect himself, which may involve an immediate intrusive search of the suspect. In evaluating an intrusive search of a suspect by a police officer to investigate or eliminate a threat to his safety, the issue is whether, balancing the officer’s need to search against the intrusion of personal security which the search entails, the officer’s action was reasonable under the circumstances. Hayes, supra at 206; Terry, supra, 392 U. S. at 18-22.

Decided March 12, 1998

Christopher G. Nicholson, for appellant.

As Thomas first stepped out of the automobile, the officer observed that he kept placing his hand in the pocket of his jacket. Since under the circumstances the officer had a reasonable suspicion that Thomas could be armed, it was reasonable for the officer to perceive this action as a threat to his safety. When Thomas refused to remove his hand from the pocket, the officer took reasonable action to protect himself by forcibly removing Thomas’ hand from the pocket and by reaching in the pocket to search for a weapon. Hayes, supra. Since the officer acted reasonably in conducting the protective search of the pocket for a weapon, there was no Fourth Amendment violation when he found heroin in the pocket.

Having found heroin in Thomas’ possession, the police had probable cause to place him under arrest. The cocaine on Thomas’ person was found pursuant to a valid search incident to his arrest. The additional cocaine and the marijuana in the automobile were found pursuant to a valid search conducted with Thomas’ consent. Since the initial investigatory stop and subsequent searches violated no Fourth Amendment rights of Thomas, it follows that there is no merit to Thomas’ contention that the statement he gave to police was the tainted product of an illegal stop and illegal searches. The trial court properly denied Thomas’ motion to suppress.

The evidence was sufficient for a rational trier of fact to find that Thomas was guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.

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


text:
    A98A0139.
    BARBER v. THE STATE.
    (498 SE2d 758)
   Blackburn, Judge.

Johnny Layton Barber appeals the trial court’s denial of his motion for new trial. Barber asserts several enumerations of error.

On July 1, 1994, Barber was cited for DUI in violation of OCGA § 40-6-391 (a) (4). On September 28, 1994, the trial court denied Barber’s motion to suppress scientific evidence of his blood alcohol level. Also on September 28,1994, Barber entered a plea of “nolo contendere subject to right of appeal.” On October 25, 1994, Barber filed a motion for new trial contending that his plea was invalid. Thereafter, nothing happened for almost three years until, at the State’s insistence, a hearing was held on June 26, 1997 on Barber’s motion for new trial. Such hearing was continued until July 2, 1997, at which time the trial court denied Barber’s motion without allowing Barber to present any evidence.

1. First, we note that “[a] motion for new trial is not the proper vehicle for withdrawing a guilty or nolo contendere plea. The proper proceeding in this regard is a motion to withdraw the plea, which appellant did not make.” (Citation omitted.) Lawson v. State, 204 Ga. App. 796 (1) (420 SE2d 600) (1992). However, the trial court was authorized to treat the motion for new trial as a motion to withdraw the plea. See id. Furthermore, the trial court was authorized to rule on the motion after the expiration of the term in which the plea was entered because the motion was filed within the same term in which the plea was entered. See Moore v. State, 116 Ga. App. 774 (158 SE2d 926) (1967). Treating Barber’s motion as one to withdraw his plea of nolo contendere, we now reach the merits of the trial court’s denial of such motion.

2. Barber pled nolo contendere “subject to the right to appeal” on September 28, 1994. He intended to directly appeal the trial court’s denial of his motion to suppress. However, “[t]he procedure approved in Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824) [(1991)], for entering a guilty plea while reserving the opportunity to appeal rulings by the trial court which ordinarily would be waived by such a plea was disapproved in Hooten v. State, 212 Ga. App. 770 (1) (442 SE2d 836) [(1994)]. Guilty pleas entered after July 9, 1994, ‘in which the accused attempts to condition upon the preservation of the rights to raise non-jurisdictional errors by the trial court will not be considered by this court, and all the usual rules of appellate practice, including the waiver of errors by guilty pleas, will be applied.’ [Id. at 775.]” Martin v. State, 214 Ga. App. 388 (448 SE2d 57) (1994). Therefore, our only inquiry is whether the trial court properly accepted Barber’s plea.

“Due process of law requires ‘that there be a record of the guilty plea hearing adequate for the reviewing court to determine whether (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.’ Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) [(1982)]. ‘After a prisoner raises the question of the validity of his plea of guilty, the burden is on the State to show that the plea was intelligently and voluntarily entered. The State may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.’ Roberts v. Greenway, 233 Ga. 473, 475 (1) (211 SE2d 764) [(1975)]. Uniform State Court Rule 33.11 specifies: ‘A record of the proceedings at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record should include: (A) the inquiry into the voluntariness of the plea (as required by section 33.7); (B) the advice to the defendant (as required in section 33.8); (C) the inquiry into the accuracy of the plea (as required by section 33.9); and, if applicable; (D) the notice to the defendant that the trial court intends to reject the plea agreement and the defendant’s right to withdraw the guilty plea before sentence is pronounced.’ ” King v. State, 226 Ga. App. 576, 579-580 (486 SE2d 904) (1997).

In the present case, the trial court accepted the plea and pronounced Barber’s sentence without any inquiry into the voluntariness of the plea. However, the record does establish that the plea was based upon a mistake of law. See Ballard v. State, 131 Ga. App. 847, 849 (207 SE2d 246) (1974), overruled on other grounds State v. Germany, 246 Ga. 455 (1) (271 SE2d 851) (1980) (“[a] plea should never be received unless freely and voluntarily made”). Here, both the court and the defendant were unaware that the Mims plea entered was no longer available as a viable plea. Therefore, the defendant was entitled to withdraw such plea and under these circumstances, the trial court erred in denying Barber’s motion to do so. Id.

3. In Barber’s third enumeration of error, he attempts to contest the trial court’s denial of his motion in limine. However, this issue is not properly before us. See Hooten, supra.

Judgment reversed.

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

Decided March 12, 1998.

Gilbert J. Murrah, for appellant.

Ben Kirbo, Solicitor, for appellee.


author: Judge Harold R. Banke.

text:
    A98A0225.
    AIKENS et al. v. WAGNER et al.
    (498 SE2d 766)
   Judge Harold R. Banke.

Waymon Aikens and Walter Aikens (the “Aikenses”) sued Victor Wagner and Glen Anthony Roseberry for damages and to void a foreclosure sale. After both sides moved for summary judgment, the trial court granted Wagner’s motion. The Aikenses appeal that disposition and the denial of their motion.

Suzie Aikens purchased certain real estate in 1960. In late 1969, she contracted with DeKalb County Home Improvement Company (“DCHIC”) for certain home improvements. Suzie Aikens, who could neither read nor write, agreed to finance the work by pledging her real property as collateral on a promissory note and deed to secure debt in DCHIC’s favor. She marked the contract and the deed with an “X.” Under the terms of the November 1, 1969 contract between her and DCHIC, she became obligated to make 84 monthly payments of $51. The amount financed consisted of $2,350 in principal and $1,934 in interest at a 19.5 percent interest rate.

Ms. Aikens tendered 28 payments including one double payment for a total of $1,478. At the time of her last payment on May 5, 1973, the balance outstanding was $2,539.57 and the final installment was due on December 5, 1976. Before her death in 1984, Ms. Aikens transferred her interest in the property to her sons, Waymon and Walter Aikens.

In June 1995, Waymon Aikens learned for the first time of the alleged existence of his mother’s debt from 1969. On July 7, 1995, Wagner, who had acquired the note and security deed, sent a letter to him claiming that the note was in default, that he was entitled to $19,600.54 and that he intended to auction the property. By a certified letter dated September 1, 1995, Wagner declared the note and security deed in default and claimed that all principal and interest were due and immediately payable. Wagner demanded to be paid in full within ten days and advised that attorney fees would be assessed beyond that deadline and that the property would be auctioned on October 3. On September 26, 1995, the Aikenses sought a temporary restraining order. Notwithstanding the continuing settlement negotiations, the property was sold for $10,100 on October 3, at the courthouse to Roseberry and James Shipp. Two months after the foreclosure, Wagner reduced the claimed amount by nearly $12,000 to only $7,976.

In contending that the foreclosure sale was unlawful, the Aikenses urged that the advertisement of the sale was legally defective, that they did not receive adequate notice, and that the purchase price was far below market value. They claimed that Wagner had no right to foreclose based on the underlying power of sale. They also asserted that prior to the sale the ownership of the property had reverted to them under OCGA § 44-14-80 (a). The trial court disagreed and found the sale to be lawful. On reconsideration, the trial court rejected the Aikenses’ argument that because the interest rate of 19.5 percent in the contract was illegal and violated the existing usury statute, the contract was void as was the subsequent foreclosure. Held:

1. The Aikenses contend that the trial court erred by failing to address their contention that the promissory note and deed to secure debt were usurious and therefore void. Where a note clearly and unequivocally calls for the payment of a rate of an unlawful interest rate, such an interest rate is usurious. Chewning v. Huebner, 142 Ga. App. 112, 114 (235 SE2d 573) (1977) (borrower entitled to directed verdict on suit to recover usurious interest). By law, all the interest charged must be forfeited. OCGA § 7-4-10 (a). See Poteat v. Butler, 231 Ga. 187, 188 (200 SE2d 741) (1973). See Reconstr Fin. Corp. v. Puckett, 181 Ga. 288, 296 (181 SE 861) (1935) (no statute of limitation where debtor claiming credit for sums paid subject to forfeiture).

Notwithstanding Wagner and Roseberry’s claims to the contrary, we have found no applicable law, and neither Wagner nor Roseberry offered any, which permitted such an excessively high interest rate in 1969. The transaction at issue implicated the now repealed Secondary Security Deeds Act, since the security deed at issue was not a first mortgage but was a secondary security deed. See Code Ann. § 57-203. The then applicable law prohibited interest rates on loans secured by a security deed, like the one here, to exceed ten percent. Ga. L. 1968, pp. 1086-1087. It is undisputed that both the contract and payment history specify the interest rate as 19.5 percent. Rose-berry’s arguments that retail installment contract law authorized this rate and that the interest rate charged reflected a clerical mistake are unpersuasive. The Retail Installment Act expressly provided that it had no effect on secondary security deeds. Code Ann. § 96-911. Nor did the statutory exception for loans exceeding $3,000 apply because the principal here is only $2,350. Compare Ward v. Hudco Loan Co., 254 Ga. 294 (328 SE2d 729) (1985) (loan at issue qualified for statutory exception to interest cap because the principal amount exceeded $3,000). Since the interest rate was unlawful, Wagner was not entitled to any interest, only the unpaid principal. Norris v. Sigler Daisy Corp., 260 Ga. 271, 273 (4) (392 SE2d 242) (1990); OCGA § 7-4-10 (a). To hold otherwise would undermine the public policy of inhibiting usury. McGehee v. Petree, 165 Ga. 492 (1) (141 SE 206) (1928).

However, the Aikenses’ contention that the usurious interest rate voided the entire transaction is not supported by any current law. Compare Beach v. Lattner, 101 Ga. 357, 365 (2) (28 SE 110) (1897); Broach v. Smith, 75 Ga. 159, 163 (1886). Although the Secondary Security Deed Act imposed harsh penalties against a lender who engaged in usurious transactions including the forfeit and refund of all principal, interest, and other charges, the legislature repealed that law in 1983. See Ga. L. 1966, pp. 574, 577. Poteat, 231 Ga. at 188. See Fountain v. Dixie Fin. Corp., 252 Ga. 543, 544 (314 SE2d 906) (1984) (retroactive application of repeal). Thus, the transaction was not void and the interest but not the principal must be forfeited. OCGA § 7-4-10 (a).

2. The Aikenses contend that the trial court erred in finding as a matter of law that Wagner properly exercised the power of sale. We agree. Because part of the principal remained unpaid, Wagner was entitled to exercise the power of sale. However, when Wagner foreclosed under this power of sale, he incurred a duty imposed by statute to exercise that power fairly and in good faith. OCGA § 23-2-114. Clark v. West, 196 Ga. App. 456, 457 (b) (395 SE2d 884) (1990) (breach of the statutory duty is a tort although arising from a contractual obligation). See Little v. Fleet Finance, 224 Ga. App. 498, 501 (1) (481 SE2d 552) (1997). Where it is shown that the sale “price realized is grossly inadequate and the sale is accompanied by fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price that such a sale may be set aside. . . . [Cits.]” Giordano v. Stubbs, 228 Ga. 75, 79 (3) (184 SE2d 165) (1971).

Here, the legal advertisement erroneously indicated that interest on $2,350 had been accruing since 1969. Moreover, although Wagner had no legal obligation to provide the exact payoff balance to the Aikenses, when he made a claim, he incurred a duty to make an accurate one. Jordan v. Flynt, 240 Ga. 359, 366 (3) (240 SE2d 858) (1977) (by undertaking a gratuitous duty, one incurs concomitant obligation). See Brown v. Freedman, 222 Ga. App. 213, 216 (1) (474 SE2d 73) (1996) (where debtor’s effort to ascertain amount due is thwarted, some evidence created as to unfair exercise of power of sale). Waymon Aikens’ testimony, although controverted, was that no bidders were present at the foreclosure sale. Waymon Aikens testified that he and his brother would have been willing to pay $7,976, “without verifying if the underlying debt was legitimate.” Whether Wagner’s assertion of a highly inflated, inaccurate unpaid balance constituted such a mistake or circumstance which chilled the bidding and resulted in a grossly inadequate price such that the sale may be set aside is a disputed material issue. Giordano, 228 Ga. at 79 (3). See Smith v. Citizens &c. Fin. Corp., 245 Ga. 850, 852-853 (3) (b) (268 SE2d 157) (1980) (“chilling the bidding” is jury issue).

Under these unique circumstances, a jury must determine whether the Aikenses are entitled to the relief they seek. See Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 286 (1) (443 SE2d 837) (1994) (debtor may seek either to set aside the foreclosure or to recover damages for the value of the property, but not both). See Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 916 (2) (423 SE2d 257) (1992) (damages available where power of sale not fairly executed). Accordingly, we reverse the judgment below and remand for a determination by the trial court of the remaining principal after crediting Ms. Aikens’ payments. Given Wagner’s incorrect claim for an amount more than 20 times the actual balance due, it would be fundamentally unfair to find that the Aikenses forfeited their opportunity to tender the correct sum. Compare Watkins, 236 Ga. 763 (3) (debtor obligated to make tender where no uncertainty as to amount of his indebtedness). Thus, the Aikenses must be afforded an opportunity to tender the correct amount to Wagner. See Coffey Enterprises &c. Co. v. Holmes, 233 Ga. 937, 940 (3) (213 SE2d 882) (1975). Because material issues of fact remain as to whether Wagner breached his statutory duty to exercise fairly and in good faith the power of sale and whether the conduct of the foreclosure sale was proper, summary judgment must be reversed. Brown, 222 Ga. App. at 215 (1). See Dickens, 264 Ga. at 285-286 (1). In light of the above divisions, we need not reach the Aikenses’ remaining enumerations of error.

Judgment reversed and case remanded with direction.

Blackburn and Eldridge, JJ, concur.

Decided March 12, 1998

Mitchell, Graham & Stroud, Tanya M. Graham, Rhathelia Stroud, for appellants.

Moulton & Massey, John W. Moulton, Kristine M. Tarrer, Fleming, Drummond & Ray, James A. Fleming, for appellees.

       The Supreme Court transferred this case to this Court.

       The actual interest rate was closer to 19.2 percent.

       The day after the foreclosure sale, Wagner’s attorney wrote a letter to the Aikenses’ counsel stating, “I apologize for broad siding you in this manner, but I had tried [unsuccessfully to reach you prior to the sale].”

       The security deed denotes Newton County Federal Savings & Loan Association as the first mortgage holder.

       It appears to be $872, although Roseberry states in his brief that it is $718.