text:
    A96A0462.
    In the Interest of J. M. D. et al., children.
    (472 SE2d 123)
   Ruffin, Judge.

Cowanda Cox appeals from the juvenile court’s order terminating her parental rights to her five children, J. M. D., J. J. D., K. C. C., J. R. C., and D. Q. C., ages two through nine. In her sole enumeration of error, Cox asserts that there was insufficient evidence establishing that her conduct caused the children to be deprived. For reasons which follow, we affirm.

OCGA § 15-11-81 provides a two-step analysis for determining whether a parent’s rights should be terminated. In the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (451 SE2d 804) (1994). First, the court determines whether there is clear and convincing evidence of parental misconduct or that the parent is unable to care for and control the child. Id. Second, the court determines whether termination is in the best interest of the child. Id. In determining whether a parent’s misconduct or inability warrants a termination of parental rights, a court must consider whether (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or will not be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Id.

On appeal, we must view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In the Interest of M. N. L., 221 Ga. App. 123 (470 SE2d 753) (1996); In the Interest of D. I. W, supra at 645. We do not weigh the evidence and must defer to the trial judge as the factfinder. In the Interest of A. L. L., 211 Ga. App. 767, 769 (5) (440 SE2d 517) (1994).

Viewed in this light, the record shows that the children were fathered by various individuals, none of whom participated in raising them or provided financial support. The children, except D. Q. C. who was not born at the time, were first taken into custody by the Department of Family & Children Services (“DFCS”) in August 1992. The record shows that Cox admitted she was using illegal drugs, the children’s home was infested with vermin, and K. C. C. had ant bite sores on her. Over the next three years, several plans were developed to reunite Cox with her children. The plans required Cox to undergo drug evaluations, complete inpatient drug treatment, attend to her medical needs associated with being pregnant and HIV positive, obtain stable housing, attend parenting skills classes and visit the children on a monthly basis. DFCS reviewed Cox’s progress under each of the plans on a periodic basis, and although Cox was invited to the reviews, she attended only occasionally.

Cox had significant problems complying with the plans. Although Cox testified that she completed two drug treatment programs, two of her DFCS caseworkers testified that they were not aware that she completed any. The caseworkers testified that although Cox was currently enrolled in a drug treatment program, she had entered several in the past, had quit attending some, was expelled from others, and completed none. In addition, one caseworker described Cox’s housing situation as “very unstable.” She was periodically evicted from housing she obtained on her own, has lived with relatives and other acquaintances, and at times lived in battered women’s shelters and homeless shelters. Regarding the parenting skills classes, a caseworker testified that Cox enrolled in a class, but did not participate in enough of the classes to obtain a certificate. Although Cox generally visited the children on a regular basis, a caseworker testified that after the first year of supervision, Cox began using drugs again and visited inconsistently, visiting for periods of three or four months, then missing two or three months.

Cox admitted using cocaine when she was pregnant with D. Q. C., and when he was born in June 1993, he had cocaine in his system. During the next review conducted in November 1993, DFCS determined that if Cox did “not stay or prove to be drug free for the next six months the agency [would] move the case toward [the] permanency planning unit.” Although Cox generally complied with the goals for the following six months, her caseworker suspected she was sporadically using drugs. In its report, DFCS restated the same goals, including the requirement that Cox remain drug free or face permanent termination. A citizen review panel conducted an interim review on August 5, 1994. Cox did not attend the review and did not provide any verification that she had remained drug free. Cox’s caseworker continued to suspect that she was using drugs. When asked why she was suspicious, the caseworker acknowledged that Cox had mentioned to her that “she had regressed and was using drugs.”

Cox asserts that the evidence was insufficient to satisfy the four criteria used to determine whether a parent’s conduct warrants termination. We disagree.

In August 1992 and June 1993, the juvenile court entered orders finding the children were deprived. Because no appeals were taken from those orders, Cox is bound by the determinations. In the Interest of D. I. W., supra at 645. Those orders and the testimony in the hearing below also showed that the children’s deprivation was caused by Cox’s conduct.

The evidence was also sufficient to show that the deprivation is likely to continue. Although Cox argues past conduct may not be used to show future deprivation is likely, where a parent has a history of drug abuse problems, the court may consider that history in determining whether the child presently is without the proper care and control and whether such deprivation is likely to continue. Id. Accordingly, although the record shows that at the time of the hearing Cox was employed, living with her sister, and about to enter a new drug treatment program, that evidence is insufficient to demand a finding that she would be a suitable parent. While we sincerely applaud Cox’s continued efforts to rehabilitate herself through drug treatment programs and to obtain suitable employment and housing, we must conclude, based on the evidence, that a rational trier of fact could have found by clear and convincing evidence that the children’s deprived conditions were likely to continue. See In the Interest of 201 Ga. App. 173 (410 SE2d 368) (1991). Under these circumstances, we must also conclude that there was sufficient evidence to support the trial court’s finding that the continued deprivation “is likely to cause serious physical, mental, emotional, or moral harm to the children.”

Decided May 29, 1996.

Hassett, Cohen, Beitchman & Goldstein, Jeffrey A. Bashuk, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Rubin, Winter, Rapoport & Hall, Robert E. Hall, Theodore A. Speaker, James W. Blount, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A0474.
    WRIGHT v. THE STATE.
    (472 SE2d 128)
   Pope, Presiding Judge.

Defendant Brandon Wright challenges the trial court’s denial of his motion to suppress cocaine found in his jacket during the valid search of an apartment he was visiting. As there is evidence to support the trial court’s finding that the police had no notice that the jacket belonged to him, we affirm.

When police officers executed the search warrant, six or seven people were sitting around in the living room. Several, including defendant, were sitting on a sofa, and defendant’s jacket was draped over an arm of the sofa. Defendant was sitting closest to the jacket when the officers first entered the room, but when he left the sofa prior to the search (when a scuffle ensued between a police officer and one of the others sitting on the sofa), he did not take the jacket with him or do anything else to indicate the jacket was his. Nor did he say anything when an officer picked up his jacket during the search, even though he was still in the living room.

Officers executing a search warrant in a home are not allowed to search the person or personal belongings of visitors who just happen to be present at the time the warrant is executed. See, e.g., Blount v. State, 181 Ga. App. 330, 333 (4) (352 SE2d 220) (1986); Childers v. State, 158 Ga. App. 613 (281 SE2d 349) (1981); State v. Brassell, 144 Ga. App. 279 (241 SE2d 57) (1977). However, “‘without notice of some sort of the ownership of a belonging, the police are entitled to assume that all objects within premises lawfully subject to search under a warrant are part of those premises for the purpose of executing the warrant.’ [Cits.]” Childers, 158 Ga. App. at 615. Whether the police had notice (i.e., knew or should have known) that an object belonged to a visitor must be determined by the trial court on the facts of each case, id.; and the trial court’s determination will be upheld if there is any evidence to support it, see Brassell, 144 Ga. App. at 280.

Decided May 29, 1996.

Garland B. Cook, Jr., for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

In this case, the trial court applied the proper standard, and its decision is supported by the evidence. This is not a situation like Childers, in which we held the officers should have realized the object belonged to the defendant, a visitor, because the object was a woman’s purse and the defendant was the only female in the home. Rather, the jacket could have belonged to anyone in the room. That defendant was sitting closest to the jacket when the officers arrived was certainly a circumstance to be considered by the trial court in determining whether the officers knew or should have known the jacket belonged to him, but it was the only circumstance indicating defendant’s possession and was not enough to compel a conclusion that the officers had notice as a matter of law. And in the absence of circumstances giving rise to such notice, the officers had no duty to ask; they could assume it was part of the premises to be searched. Cf. Blount, 181 Ga. App. at 334-335 (search of purse sitting ten to twelve feet from two women, one of whom was a resident and the other a visitor, was legal even though it turned out to be the visitor’s purse). Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Although we have affirmed defendant’s conviction, we note that the police officers’ testimony indicates they believed they could legally search everyone present in the apartment, even if this included visitors who were not named in the warrant. This misimpression causes us concern, and we hope it causes the district attorney concern as well.

Judgment affirmed.

Andrews and Smith, JJ, concur.


text:
    A96A0674.
    LYLES v. THE STATE.
    (472 SE2d 132)
   Pope, Presiding Judge.

Having chosen a bench trial, defendant David Lyles was convicted of armed robbery by the judge. On appeal he enumerates several errors, including the improper admission of hearsay evidence. Although defendant’s contention that the hearsay evidence was improperly admitted is correct, we conclude this error was harmless in light of his properly admitted confession. As defendant’s other enumerations of error are without merit, we affirm.

Two armed men wearing masks robbed a Days Inn, taking money and other items from the front desk clerk. A gun was left at the crime scene, and Lorenzo Young testified that he had given this gun to defendant five or six days before the armed robbery. This and other information gleaned from post-robbery interviews led to the arrest of defendant, who confessed that he and another man had committed the armed robbery of the Days Inn. Several days later, defendant asked to speak with the case investigator and told him where various items stolen from the hotel could be found.

1. Citing Askea v. State, 153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980), defendant contends that the trial court should have suppressed his confession because the investigator told defendant that if he cooperated, the investigator would let the district attorney know of his cooperation and it might help him. See OCGA § 24-3-50. In Askea, we held that an investigator’s statement that the defendant’s cooperation “would probably help him in court” impermissibly held out some hope of benefit and rendered the defendant’s inculpatory statement inadmissible. 153 Ga. App. at 851. But this case is more like Gadson v. State, 197 Ga. App. 315 (1) (398 SE2d 409) (1990). In Gadson, a detective told the defendant that he would let the district attorney know about the defendant’s cooperation, and that this might result in a reduced sentence. No promises were made, and the defendant had signed a declaration that his statement was made without promise or hope of reward. Id. at 315-316. The investigator’s statement in this case was quite similar to that of the detective in Gadson", and here, too, defendant signed a form acknowledging that he had not been promised anything. Accordingly, the trial court properly ruled that defendant’s confession was not inadmissible on this ground. Arline v. State, 264 Ga. 843 (2) (452 SE2d 115) (1995). See also Helton v. State, 206 Ga. App. 600, 601 (426 SE2d 172) (1992); Cline v. State, 153 Ga. App. 576, 578 (4) (266 SE2d 266) (1980).

2. Defendant next argues that his in-custody statements should have been suppressed because the State failed to disclose in discovery the substance of his second statement regarding the location of stolen items. See OCGA § 17-16-4 (a) (1). A review of the documents the State provided defendant shows, however, that the substance of defendant’s second statement was included in documents which described the located items and stated that defendant told the investigator these items could be found at that location. Thus, this enumeration of error is also without merit, and the trial court properly admitted defendant’s inculpatory statements.

3. In six enumerations of error, defendant challenges the admission of hearsay evidence to explain the investigator’s “course of conduct.” Hearsay evidence is admissible to explain an investigating officer’s conduct only when the officer’s conduct is at issue and needs to be explained, and this is not one of those rare instances in which the officer’s conduct is a matter of concern. Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984). Accordingly, the trial court erred in allowing this evidence.

Decided May 29, 1996.

Susan D. Brown, for appellant.

Albert F. Taylor, Jr., District Attorney, Darrell E. Wilson, Mary E. Moore, Assistant District Attorneys, for appellee.

Nonetheless, the erroneous admission of hearsay evidence is not harmful if it is highly probable that it did not contribute to the verdict. See id. at 537 (2). In this case, we have defendant’s properly admitted statement in which he confessed that he committed the crime. Moreover, this was a bench trial. In admitting the evidence, the judge explicitly stated that he would consider it only for the limited purpose of explaining the investigator’s course of conduct; even though he erred in admitting it at all, we see no reason to presume he considered it for other purposes. We therefore conclude that it is highly probable that admission of the challenged evidence did not contribute to the verdict and thus was not harmful.

4. Defendant next argues that the judge was not an impartial trier of fact because he had already heard the pre-trial motions and ruled against defendant on the Jackson-Denno issue. This argument is without merit. Nothing in the transcripts indicates any bias on the part of the trial judge in this case, and we certainly will not establish as a flat rule that a judge acting as a trier of fact in a bench trial cannot also hear the pre-trial motions. Moreover, we note that defendant failed to move for recusal (or to raise this issue in any other way) prior to his motion for new trial.

5. Defendant asserts that his trial counsel rendered ineffective assistance in failing to challenge the admissibility of defendant’s statements. In light of our conclusion in Divisions 1 and 2 that defendant’s statements were properly admitted, defendant cannot show prejudice from any failure on the part of his counsel in this regard.

6. Viewing the properly admitted evidence (i.e., including the statements of defendant but not the hearsay) in a light favorable to the judgment of conviction, it is sufficient to support the judge’s finding of guilt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Andrews and Smith, JJ., concur.


author: Beasley, Chief Judge. Ruffin, Judge,

text:
    A96A0679.
    A96A1256.
    LIVINGSTON v. THE STATE. SMITH v. THE STATE.
    (472 SE2d 317)
   Beasley, Chief Judge.

Because these cases present similar jurisdictional considerations, they will be treated together. Case No. A96A0679 involves Livingston, who was convicted of conversion of payments for improvement of real property (OCGA § 16-8-15) and four counts of first degree forgery (OCGA § 16-9-1). He represented himself at trial. Case No. A96A1256 involves Smith, who was convicted of armed robbery (OCGA § 16-8-41 (a)) and sentenced to life in prison. Both appeal from denials of motions for new trial.

1. Although there has been no motion to dismiss filed in either case, “ Tilt is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.’ . . . [Cit.]” Landor Condo. Consultants v. Colony Place Condo. Assn., 195 Ga. App. 840, 841 (395 SE2d 25) (1990). When appeal is from the denial of a motion for new trial, the notice of appeal “shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-38 (a).

Although Livingston’s trial concluded February 24, 1995, judgment and sentence was not filed until May 9, and he moved for a new trial on June 1. His notice of appeal states that the motion for new trial was denied on October 16, although the court’s order recites that the motion was heard on October 30. In either event, his notice of appeal, filed November 10, was within 30 days after the court orally denied his motion. The order was signed and entered December 1. Thus, Livingston’s notice of appeal preceded the entry of the written order.

Smith was convicted on August 5, 1994. He filed a motion for new trial on September 1, 1994, but no hearing was held until January 22, 1996. The court apparently announced at the hearing that the motion would be denied, and Smith filed his notice of appeal the next day, January 23. The court’s order denying the motion for new trial was signed on January 24 and entered on January 25. Thus, Smith’s notice of appeal was two days before entry of the written order.

In a division case, this Court recently held, contrary to previous practice, that premature notices of appeal do not properly invoke this Court’s jurisdiction and such appeals must be dismissed. Staton v. State, 219 Ga. App. 316, 317 (464 SE2d 888) (1995). In doing so, we interpreted the Georgia Supreme Court’s opinion in Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995), to encompass appeals with prematurely filed notices as the type of procedurally deficient appeals that require dismissal. Upon reflection, we do not believe Rowland requires that conclusion.

Before Rowland, the Supreme Court determined in Gillen v. Bostick, 234 Ga. 308, 310-311 (1) (215 SE2d 676) (1975), that prematurely filed notices of appeal did not divest the appellate courts of jurisdiction. See also Hendrick v. State, 257 Ga. 514, n. 1 (361 SE2d 169) (1987); Stewart v. State, 257 Ga. 211, n. 1, 212 (356 SE2d 515) (1987). In both Hendrick and Stewart, the Court pointed out that “the fact that [defendant’s] notice of appeal was prematurely filed does not operate to defeat his right of appeal. [Cits.]”

The ruling in Gillen brought about a decision on the merits of such cases, which is the State’s public policy. OCGA § 5-6-30; Okross v. State, 205 Ga. App. 694, 695 (423 SE2d 291) (1992). It is also in keeping with the spirit of federal constitutional law in criminal cases. See Eller v. State, 183 Ga. App. 724 (360 SE2d 53) (1987). Moreover, it prevented piecemeal appellate review and advanced the defendant’s right to appeal without prejudicing the State by offending its right to certainty as to the judgment or order being appealed. Gillen, supra. Significantly, it achieved finality of criminal convictions at the earliest possible time, a feature of the criminal justice system of great importance to the public if not to a defendant.

Following these decisions, this Court viewed prematurely filed notices as reaching maturity and effectiveness upon the filing of the judgment or order. Okross, supra; Brinson v. State, 191 Ga. App. 151 (1) (381 SE2d 292) (1989); Royal v. State, 189 Ga. App. 756 (1), 757 (377 SE2d 526) (1989); Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988); Eller, supra. Such a notice of appeal is not jurisdiction-ally defective but only procedurally irregular. Because the notice is present in the trial court throughout the 30-day statutory period, indeed from the very beginning of the period, such notice is not untimely, and in fact gives the appellee a head start because it then knows of defendant’s appeal decision soon after the court pronounces its ruling in open court. If the judgment or order to which it refers is never filed, the notice of appeal is never effective because the case remains pending in the trial court. Okross, supra at 695. This is the productive and realistic manner in which the Court of Appeals treated such notices immediately prior to Staton and Rowland.

Treating a premature notice as effectively filed upon entry of the order denying the motion for new trial does not violate either the letter or the spirit of OCGA § 5-6-38 (a). Since it lacks efficacy before the order is entered, it is simply not legally cognizable until that point. Then it is not only timely under OCGA § 5-6-38 (a), but as timely as any notice could ever be. This treatment actually furthers the purposes of the 30-day limitation in OCGA § 5-6-38 (a), to keep the case moving towards final disposition while affording a reasonable opportunity for the losing party to consider the appeal. The legislature determined that 30 days was a sufficient period of time, but it never stated that a notice of appeal filed in advance of the actual, clerical entry of the order would gain no legal effect. In fact, it requires expedition of criminal appeals when defendants are incarcerated, as both these defendants are, and the trial court must alert the appellate court of that fact so the objective can be achieved. OCGA § 5-6-43 (c)N

In the view of premature notices that we have taken since Gillen, the notice must clearly indicate the order from which it seeks relief; otherwise prejudice to the appellee may result. Gillen, supra. The notice of appeal in Staton, supra at 316, did not “minimally suffice as a timely notice of appeal inasmuch as it contained no reference to the . . . judgment from which the appeal was filed. See OCGA § 5-6-37.” The cases presented here, like many criminal cases, pose no problem in this regard. There is a familiar pattern: a hearing on the motion for new trial is held, the court announces it is denied, and the appellant promptly files a notice of appeal. The only problem is that the appellant is more prompt than the court, and the order denying the motion is entered after the notice. There is no prejudice to the State; the notice makes it clear what is being appealed. The motion is still in the breast of the court until the order is entered, and if the court decides to grant the motion, the notice from a nonexistent denial is void.

In Rowland, the Supreme Court was presented only with notices of appeal filed after the expiration of the statutory period. Defendant Rowland was sentenced on November 8, 1993; his motion for new trial was filed November 15, amended February 7, 1994, and denied March 9, 1994; and his notice of appeal was filed 43 days after the denial. Rowland, supra at 872, n. 1. Defendant Starks, whose appeal was treated in the same opinion, was convicted in 1990, and after appeal and remand, his motion for new trial was denied on November 16, 1993, but his notice of appeal was not filed until 31 days after the denial. Id. at 872, n. 2.

After reviewing various methods by which the appellate courts of this state have reviewed the merits of procedurally deficient criminal appeals, Rowland determined that appeals with late-filed notices could be properly dismissed, as the availability of an “out-of-time appeal” sufficiently protected a defendant’s constitutional rights. Rowland, supra at 875 (2). The opinion does not mention premature notices of appeal, does not mention, much less overrule, Gillen, and does not refer to the treatment the Supreme Court itself and this Court have given to premature notices since Gillen.

Good reason answers why this is so. There is a vast difference between a notice which is filed beyond the time allowed by law, and a notice which is filed before it must be. The late notice fails to keep the case extant and to shift jurisdiction to an appellate court. McKinney v. State, 187 Ga. App. 702 (371 SE2d 196) (1988). The appeal opportunity dies with the passage of the prescribed period of time, and appellate jurisdiction never attaches. On the other hand, the early notice is dormant in its effect until the ruling it complains of is entered of record. It then effects appellate jurisdiction instantly. It is not “untimely,” which is the concern addressed in Rowland. The law sets a maximum time for filing a notice of appeal so as to advance the case to finality without undue delay. That is the primary purpose of the 30-day limit in OCGA § 5-6-38 (a); it serves to assure speedy justice, one of the objectives of the Appellate Practice Act. See Chambliss v. Hall, 113 Ga. App. 96 (1), 98 (147 SE2d 334) (1966).

It would be ironic as well as illogical to relegate defendant to the cumbersome out-of-time appeal procedure which elongates a case’s life just because the time limitation for direct appeals, and its purpose, were met by alert counsel’s early physical filing of the notice rather than by its physical filing on the day the court’s order was actually entered. Its anticipatory nature does not deprive it of fulfilling the statutory time requirement.

In Staton, the defendant was convicted and sentenced on December 7, 1994. His motion for new trial, which was filed on December 20, was heard on March 16, 1995, and orally denied. He filed his notice of appeal on March 30, within 30 days of the court’s announced ruling, but the court’s order denying the motion was not actually entered until April 3. On April 21, within 30 days of entry, he asked this Court in a “Notice of Filing” to take notice of his earlier notice of appeal, but we decided he had not invoked our jurisdiction.

The Staton opinion does not address Gillen and its reasoning. Rather, Staton concludes that Rowland impliedly included premature notices of appeal as procedurally deficient because Rowland cited Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986), a case involving a notice of appeal filed approximately six months before entry of the order denying the motion for new trial. However, Rowland involved only late-filed notices of appeal and cited Boothe merely as an example of a method by which we have ensured due process of law as required in Evitts v. Lucey, 469 U. S. 387, 395 (105 SC 830, 83 LE2d 821) (1985), in “an abundance of caution” examining a record for substantive error even when an appeal is dismissed on jurisdictional grounds. Boothe, supra at 23. That method lost viability after Rowland’s determination that an out-of-time appeal adequately protects a defendant’s appellate rights. Rowland, supra at 875-876 (2).

Further, Boothe’s treatment of the premature notice as a defect requiring dismissal had been overruled long before Rowland was decided, in Eller, supra, based upon the rule set forth in Gillen. Thus, Staton’s assumption that Rowland’s citation of Boothe brought premature notices into the ambit of Rowland’s determination that dismissal is appropriate is faulty; premature notices were not considered procedurally or jurisdictionally deficient when Rowland was decided. Given the state of the law then, as well as the fact that Rowland addressed neither premature appeals, nor the Supreme Court’s decisions in Gillen and opinions applying Gillen to criminal cases, nor the manner in which this Court has addressed premature notices since Eller and Gillen, we conclude that Rowland’s reference to Boothe is only for the now unnecessary method of review that Boothe used. We do not read Rowland as overruling our long-standing treatment of premature notices of appeal, and there is no reason to infer that it intended to overrule Gillen or encompass prematurely filed notices of appeal.

Appellants Livingston and Smith have not been dilatory, requiring out-of-time appeals because they did not exercise their rights quickly, nor is there any question what judgments are appealed. The early notices and later entered judgments present no appellate delay at all, much less delay prejudicial to the State.

To consider these and similar premature notices of appeal as void would simply promote fragmentary, wasteful review. From shortly after the very time the trial courts announced the denials of new trials, defendants have persisted in their efforts to obtain review. The delay imposed by dismissing these cases and requiring each appellant to file a motion for out-of-time appeal would be espedally egregious in Smith’s case; he was pronounced guilty and sentenced to life in prison on August 5, 1994, and his conviction has not yet been reviewed. To stall review any longer, solely because his notice of appeal was filed two days before the judgment was entered, violates our responsibility to decide appeals on their merits when possible. OCGA § 5-6-30. Even if we favored dismissing, we would still be faced with the Supreme Court’s decisions in Gillen, Hendrick, and Stewart, which allow premature filing and have not been overruled, either explicitly or by implication.

Staton is in error and is overruled; the notices of appeal in these cases invoked this Court’s jurisdiction.

Case No. A96A0679

2. Although Livingston enumerates other errors, his primary contention is that he was deprived of representation by counsel, violating the Sixth Amendment to the United States Constitution. Although he recites also Ga. Const, of 1983, Art. I, Sec. I, Pars. XII and XIV, we do not address a state constitutional basis for his claim. It is neither embraced within the scope of the enumeration nor pursued as an independent source of rights. Most of the cases he cites involve only the federal constitutional right: May v. State, 217 Ga. App. 427 (457 SE2d 694) (1995); Williams v. State, 192 Ga. App. 317 (384 SE2d 877) (1989); Fernandez v. State, 171 Ga. App. 290 (319 SE2d 503) (1984); Ward, supra; Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981). The appellate courts of this state currently do not recognize any difference in the rights afforded by the separate constitutions in this regard. Smith v. State, 211 Ga. App. 567 (440 SE2d 44) (1993), rev’d, 264 Ga. 634 (452 SE2d 90) (1994); Stevens v. State, 199 Ga. App. 563, 566 (2) (405 SE2d 713) (1991); Butler v. State, 198 Ga. App. 217, 219-220 (1) (b) (401 SE2d 43) (1990) (physical precedent only); Burnett v. State, 182 Ga. App. 539, 540 (1) (356 SE2d 231) (1987); Reid v. State, 237 Ga. 106, 108 (2) (227 SE2d 24) (1976).

Livingston’s right to counsel arose because he was facing a state felony charge. Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963); OCGA § 17-12-38.1; Hasty v. State, 215 Ga. App. 155, 158 (2) (450 SE2d 278) (1994); compare Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992).

After indictment, Livingston’s retained counsel was allowed to withdraw over his objection. By the time of his arraignment six months later, Livingston had not retained new counsel but informed the court he was not there to represent himself. He also stated that despite having talked with at least four other attorneys, he did not have one and implied he could not afford one because his original counsel had kept the funds he had available for this purpose.

At the end of the hearing, the court stated that all it could do was “continue the case until next year and give [Livingston] an opportunity to get another lawyer.” The court granted a continuance without clarifying whether Livingston could afford an attorney and did not order an indigency review. At neither the arraignment nor the hearing on counsel’s request to withdraw, nor at the beginning of trial, did the court ever inform Livingston that an indigent defendant had a right to appointed counsel, warn him of the dangers of proceeding without counsel, or inquire why he had not retained counsel. See Jones v. State, 212 Ga. App. 676, 678 (1) (442 SE2d 908) (1994); Clarke, supra at 197. No other transcripts of pre-trial hearings appear in the record.

Livingston argues he was deprived of his right to counsel because the court failed to fully inform him that an attorney could be appointed to represent him if he could not afford one and that it was dangerous to proceed without one. The State contends Livingston is a non-indigent defendant who was not diligent in securing counsel, and that the court found that Livingston had not exercised diligence. True, diligence is a factual question within the court’s discretion. Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983). However, the record does not show the court found Livingston to be non-indigent, or even that the public defender’s office or some other agency ever examined Livingston’s financial status. See Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992). Contrary to the State’s contention, there is also no finding of non-diligence; from the record, it appears the court never inquired into indigency or diligence and never exercised its discretion.

The State also argues that Livingston has not shown himself to have been indigent at the time of trial. A defendant claiming he was denied an appointed attorney to which he was entitled because of indigency must show he was indigent. Bostick v. Ricketts, 236 Ga. 304, 306 (2) (223 SE2d 686) (1976). Even if the record showed Livingston had been found to be non-indigent, “the court does have some obligations with respect to a non-indigent defendant appearing before it pro se: ‘ “. . . the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.” (Cit.)’ [Cits.]” Flanagan v. State, 218 Ga. App. 598, 600 (462 SE2d 469) (1995). This duty “is based on the right to counsel, which non-indigent as well as indigent defendants have, rather than the right to appointed counsel, which they do not.” (Emphasis omitted.) Id. The consequences of Livingston’s lack of counsel are shown by the unskilled and unknowing manner of his self-representation.

The court did not inquire as to why Livingston was not represented but simply asked if the parties were ready. Livingston answered: ‘Yes sir, as ready as we can be.” The court responded: “Sir?,” to which Livingston replied: ‘Yes, sir.”

Later, after the jury had been chosen but before opening statements, a discussion occurred outside the jury’s presence concerning what information could be presented about why Livingston was not represented. After noting that Livingston’s original counsel had withdrawn a year earlier, the court stated: “And I don’t want [the jury] to feel like, just from the Court’s point of view whether it’s fair for us to — for the impression to be given to them that you have not been afforded an opportunity to hire counsel on your own; and that we’re not making you go to trial without a lawyer; it’s just that it has gone on so long it’s time to get it over with, and you had that option, and now you don’t have one.” Livingston’s only response was: “Exactly.” During the discussion, it was also revealed Livingston had spoken with five attorneys but none of them entered an appearance on his behalf. Upon learning this, the court did not inquire whether the failure to have an attorney was beyond Livingston’s control. Although the court’s reference to Livingston’s “opportunity” and “option” indicates there may have been some off-record discussion as to why he was not represented, we cannot assume the court inquired and satisfied itself that Livingston was unrepresented as a result of his own choice or lack of diligence. “ ‘Waiver of counsel. . . cannot be presumed from a silent record.’ ” Waire v. State, 211 Ga. App. 69, 70 (438 SE2d 142) (1993). The court’s action was short of its duty.

This case must be remanded for the court to make a finding as to indigence and, depending upon that finding, to exercise discretion as to diligence and the appointment of counsel. If Livingston was entitled to counsel, he is entitled to a new trial; if not, the judgment stands. Flanagan, supra at 601.

3. Because Livingston may not be entitled to a new trial, we address his other enumerations, one being that he was deprived of his right to testify in his own behalf. See Mobley v. State, 264 Ga. 854, 855-856 (2) (452 SE2d 500) (1995). The record shows otherwise.

During the presentation of the State’s evidence the court informed Livingston he had the right to testify in his own behalf. When asked at relevant points whether he would be testifying, Livingston either stated he would not or answered that he had not yet decided. At no time did he express any desire or intention to testify. After the close of the evidence, the court asked whether Livingston wanted the jury charged about his right not to testify and expressed some surprise that he had not testified. During the charge conference, Livingston adamantly declared he had never announced to anyone whether he intended to testify and he had never formed a plan to testify.

He now contends the court paced the trial in a manner that exhausted him and forced him to choose between testifying and making a closing argument, effectively denying his right to testify. To the contrary, the court never told or even suggested to Livingston that he must choose between the two. There is no indication that the trial was improperly managed timewise. In fact, had Livingston been permitted to present his twenty-five character witnesses, the trial would have been even longer, but the court restricted the number to nine because their testimony was cumulative. Although Livingston did state, after resting his case, that he did not think he could physically concentrate on both testifying and arguing, he never informed the court he was too tired to continue or that fatigue might prevent him from testifying. Nothing in the transcript could reasonably be construed as a request for a recess. Although the trial was held during the course of three and one-half days, there is no indication how long each day’s session ran. No error appears. Johnson v. State, 208 Ga. App. 453, 454 (4) (430 SE2d 821) (1993).

4. The final enumeration is that the trial court improperly commented on the evidence in violation of OCGA § 17-8-57 when it ruled after Livingston objected to an answer given during his cross-examination of a witness. The record does not show any improper comment; even if there was, the enumeration has not been preserved for appellate review, thus waiving any error. Walker v. State, 258 Ga. 443, 444 (3) (a) (370 SE2d 149) (1988).

Case No. A96A1256

5. Smith’s sole enumeration of error is that the evidence was not sufficient to support the conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Id.; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

The victim, a pizza delivery man, testified he arrived at an apartment complex to make a delivery. As he approached the apartment where the pizza was to be delivered, he noticed a group of men in the complex’s common area, one of whom went behind a wall. The victim delivered the pizza, telling the recipient he thought he might be robbed. As he was leaving the complex, the man he saw leave the group emerged, pointed a silver-colored gun at the victim’s face, and told him to approach, but the victim backed away. The robber told him not to try it, and the victim stated he knew what the robber wanted and the gun was not needed. The victim tossed the robber a bag containing money, and the robber caught it. The robber told the victim to turn and walk the other way, which he did.

Johnson testified that he was in a group of men at the complex when the victim arrived. Smith had a silver-colored gun resting on a stump, announced an intention to rob the delivery man, picked something up off the stump, and went around the building. Johnson saw the victim toss the money bag to the ground but could not see the person facing the victim because of a wall. He later saw money in Smith’s hand, and the gun was not on the stump after the robbery. A detective testified that Johnson told him he had seen Smith place a gun to the victim’s head.

Smith argues there was no evidence identifying him as the robber, but the victim clearly identified Smith in court as the perpetrator. Smith also contends there was insufficient evidence he took “property of another from the person or immediate presence of another.” See OCGA § 16-8-41 (a). Although he does not explain this contention, it apparently refers to Johnson’s testimony that he only saw the victim throw the money bag to the ground, but he did not see anyone pick it up. Whether, the jury credited the victim’s testimony that he tossed the bag to Smith, who caught it, or whether it believed Johnson and took into account the circumstantial evidence, the evidence was sufficient.

Judgment affirmed in part and case remanded with direction in Case No. A96A0679. Judgment affirmed in Case No. A96A1256.

Birdsong, P. J, Pope, P. J., Andrews, Johnson, Blackburn and Smith, JJ, concur. McMurray, P. J., and Ruffin, J., concur specially.

Ruffin, Judge,

concurring specially.

If, as former Chief Justice Roger J. Traynor of the California Supreme Court has said, “errors are the insects in the world of law . . .,” where such errors are harmful, appellate courts must be the exterminators. Although it is a bit embarrassing to extinguish a fire of your own making, it is appropriate to do so when one is wiser today than yesterday. Accordingly, we should bid adieu to Staton v. State, 219 Ga. App. 316 (464 SE2d 888) (1995).

After further consideration of Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995), I concur with the majority’s opinion but write separately regarding Division 1 to address the majority’s distinction between premature notices of appeal and late notices of appeal. In my opinion, Gillen v. Bostick, 234 Ga. 308, 310-311 (1) (215 SE2d 676) (1975), mandates this holding, and, therefore, I concur in the majority’s opinion. However, I am not convinced that Rowland did not implicitly overrule Gillen.

Decided May 29, 1996.

Rowland, presented the Supreme Court with only the issue of notices of appeal filed after the expiration of the statutory period. The Supreme Court did not specifically address the issue of premature appeals or mention Gillen. Hence, our use oí Rowland to dismiss the premature appeal in Staton v. State, supra at 317, may itself have been premature. While Rowland did not address the issue before us and did not overrule the line of cases following Gillen, I still believe that the Court’s rationale in Rowland should apply to premature notices of appeal.

In Rowland, the Supreme Court held that our practice of ruling on late-filed appeals, while laudable, “requires the appellate court to ignore jurisdictional and procedural statutes and rules.” 264 Ga. at 874. Its observation surely applies to our granting of appeals that have been filed prematurely. Moreover, whether the appeal is filed prematurely or after the 30-day period for appeal has expired, a criminal appellant still will be entitled to an out-of-time appeal. If the case ultimately is dismissed for failure to file the notice of appeal within the statutory 30-day period, there is no reason a party cannot request an out-of-time appeal even if that party was dismissed because he filed the appeal too early rather than too late. “Since an out-of-time appeal is the remedy for a frustrated right of appeal, we may dismiss an appeal of right for failure to follow appellate procedural prerequisites. [Cit.]” Id. at 875. Thus, to the extent that our consideration of premature notices of appeal has its basis in the due process and fairness concerns which Rowland holds need not be considered, we should reconsider our rulings in this line of cases.

I disagree with the majority’s conclusion that premature notices of appeal are “not jurisdictionally defective but only procedurally irregular.” If the notice of appeal does not comply with OCGA § 5-6-38 (a), it is defective. Period. It is not the Court’s job to decide that one failure to comply is a defect and another is merely an irregularity. Moreover, if there is to be an exception to the statute, the legislature should create the exception rather than this Court.

Nevertheless, because Rowland did not address the issue of premature appeals and because Rowland did not overrule that line of cases following Gillen, I believe this Court is compelled to follow the rule in Gillen until the Supreme Court has an opportunity to address the issue before us.

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.

Debra G. Gomez, for appellant (case no. A96A0679).

Janet S. Willy, for appellant (case no. A96A1256).

Charles H. Weston, District Attorney, Robin O. Flanders, Laura D. Hogue, Assistant District Attorneys, for appellee (case no. A96A0679).

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee (case no. A96A1256).

       The trial transcript was completed October 14, 1994, and was filed with the court clerk June 30, 1995, long before the hearing.

       Although the order states the hearing was held on January 24, the clerk’s office advises it was actually January 22.

       The clerks in these two cases understood it to be so and transmitted the records and transcripts within 20 days (in Smith’s case, slightly more than 20 days) from the orders which activated the notices of appeal. OCGA § 5-6-48 (d). They did not ignore the notices.

       Smith is in prison; Livingston has suffered “an actual loss of liberty” by being sentenced to a work-release diversion center. See Ward v. State, 248 Ga. 60, 64 (3) (281 SE2d 503) (1981).

       That does not mean that, when properly raised, preserved, and briefed, it could not be done.


author: McMURRAY, Presiding Judge.

text:
    A96A0732.
    HIGHT v. THE STATE.
    (472 SE2d 113)
   McMURRAY, Presiding Judge.

Defendant was charged with the offenses of burglary, theft by taking and false report of a crime. The evidence adduced at a jury trial reveals that the victim interrupted a burglary at his residence at about 4:15 in the afternoon on January 17, 1995. The victim testified that, upon approaching the driveway to his house, he observed a man running through the front yard, noticed the front door to his house was “fully open” and discovered a “strange car” parked in the driveway. The victim testified that he blocked the “strange car” with his truck, found his television and a case of his motor oil in the rear seat of the “strange car” and discovered his “VCR” abandoned in the front doorway of his home. Other proof reveals that the “strange car” belongs to defendant’s cousin, Tonya Haynes; that Tonya Haynes loaned her car to defendant less than an hour before the break-in at the victim’s house; that defendant reported Haynes’ car stolen shortly after the victim reported the break-in at his house and that the victim informed an investigating officer, about an hour after commission of the crimes charged, that defendant’s clothing and physical characteristics matched the clothing and physical characteristics of the man he saw fleeing from his home. Defendant’s aunt, Deborah Hodges, testified that she observed defendant on the street a short distance from the victim’s home about 15 to 20 minutes before commission of the crimes charged and that she then also observed Haynes’ car parked in a driveway a short distance from the victim’s residence.

The jury found defendant guilty of burglary, theft by taking and false report of a crime. This appeal followed the denial of his motion for new trial. Held:

1. Defendant challenges the sufficiency of the evidence, arguing that proof supporting his alibi defense demonstrates that he could not have committed the crimes charged.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. Cox v. State, 205 Ga. App. 375 (1) (422 SE2d 68) (1992); Alexander v. State, 200 Ga. App. 411 (1) (408 SE2d 485) (1991).” Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873). The victim’s testimony in the case sub judice that defendant’s characteristics matched the characteristics of the man he saw fleeing from his home, Tonya Haynes’ testimony that she loaned her car to defendant less than an hour before commission of the crimes charged, Deborah Hodges’ testimony that she saw defendant and Haynes’ car near the crime scene about 15 to 20 minutes before the victim discovered the break-in at his home, proof that Haynes’ car was abandoned at the crime scene and testimony that defendant reported the theft of Haynes’ car shortly after the victim reported the burglary at his residence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crimes charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Russell v. State, 174 Ga. App. 1 (2) (329 SE2d 168).

2. Defendant next contends his conviction for theft by taking cannot stand because the State failed to prove that the items he allegedly stole from the victim’s home had value. This contention is without merit.

Value is not an element of theft by taking as proscribed by OCGA § 16-8-2. The value of stolen property is relevant only for purposes of distinguishing between a misdemeanor and a felony. OCGA § 16-8-12 (a). Stancell v. State, 146 Ga. App. 773 (2) (247 SE2d 587). The victim’s testimony in the case sub judice that the property taken from his home had some value authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of misdemeanor theft by taking as charged in the indictment. Jackson v. Virginia, 443 U. S. 307, supra.

3. Defendant contends the trial court erred in denying his motion for mistrial after a State’s witness placed his character in issue by testifying that he last saw defendant “[t]his morning when they shackled us to come down here.” This contention is also without merit. “The challenged testimony did not place [defendant’s] character in issue as it is clear from a review of the transcript that [his] incarceration related only to those charges for which [defendant was] then on trial and not due to any independent criminal transactions. Latham v. State, 100 Ga. App. 509, 510 (2) (112 SE2d 163) (1959); Hughes v. State, 159 Ga. App. 591 (3) (284 SE2d 98) (1981). Cf. Bowen v. State, 123 Ga. App. 670, 671 (1) (182 SE2d 134) (1971).” Hunt v. State, 180 Ga. App. 103, 106 (348 SE2d 467).

4. In his fourth enumeration of error, defendant contends the trial court erred “in refusing to allow defense counsel to question [him] as to the bias of one of the State’s witnesses who testified against him.” This enumeration presents nothing for review “as defendant failed to proffer the testimony which was allegedly improperly excluded by the trial court. Harris v. State, 263 Ga. 526, 527 (1) (435 SE2d 669).” Wright v. State, 216 Ga. App. 486 (2) (455 SE2d 88).

Decided May 29, 1996.

Daniel L. Sproles, for appellant.

Stephen F. Lanier, District Attorney, Emory B. Thompson, Assistant District Attorney, for appellee.

5. In his fifth enumeration, defendant contends the victim’s identification testimony was unduly tainted by an on-the-scene showup that was conducted about an hour after commission of the crimes charged. This enumeration has no basis in fact. That is, the police showup could not have tainted the victim’s testimony because the victim could not identify defendant as perpetrator of the crime charged. The victim merely testified that defendant’s appearance resembled the appearance of the man he saw fleeing from his residence on the day of the crimes charged.

6. In his final enumeration, defendant contends the State improperly impeached its own witness at trial. “[B]ecause defendant failed to raise [this objection] at trial, we cannot now consider [it] on appeal. See Price v. State, 204 Ga. App. 288 (1) (419 SE2d 126) (1992).” McCrary v. State, 208 Ga. App. 824 (1), 825 (432 SE2d 254).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0868.
    NORTH FULTON FEED, INC. v. PURINA MILLS, INC.
    (472 SE2d 122)
   McMURRAY, Presiding Judge.

Plaintiff North Fulton Feed, Inc. (“North Fulton”) brought this contract action against defendant Purina Mills, Inc. (“Purina Mills”), alleging breach of an oral promise to deliver feed (Count 1), promissory estoppel (Count 2), and deceptive and unfair trade practices (Count 3). Defendant denied the material allegations and defended in part on the ground that North Fulton’s claims are “barred by the Statute of Frauds. . . .” The trial court, “having carefully considered all matters of record in the case including all depositions and affidavits on file as well as the briefs and arguments of counsel,” granted summary judgment in favor of defendant, and this appeal followed. Held:

Decided May 29, 1996.

Mark P. Ellis, Guy J. Camuso, Jr., for appellant.

Sell & Melton, Joseph W. Popper, Jr., Robert D. McCullers, for appellee.

In three related enumerations of error, plaintiff maintains that he has presented “evidence creating questions of fact to be determined by a jury regarding the damages suffered as a result of [defendant’s alleged] breach of contract [and plaintiff’s detrimental reliance].”

Plaintiff’s notice of appeal directed the Clerk of the Superior Court of Fulton County only to “prepare the record for appeal to the Court of Appeals,” and fails to specify whether the evidence adduced in support of and in opposition to summary judgment will be included with the record. See OCGA § 5-6-51. As transmitted to the Court of Appeals of Georgia from the Superior Court of Fulton County, Georgia, the record does not contain any of the depositions or affidavits referred to by the superior court in its order granting summary judgment to defendant. “In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings.” Deen v. United Dominion Realty Trust, 218 Ga. App. 443 (1), 444 (462 SE2d 384). “ ‘Where the appellant fails to bring up a transcript or otherwise meet his burden of affirmatively showing error by the record, the judgment will not be disturbed. (I)t is well established that (a) brief cannot be used in lieu of the record or transcript for adding evidence to the record.’ . . . Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989). Accordingly, as [plaintiff in the case sub judice] presented no evidence in support of these enumerations other than [undocumented] arguments in its briefs and references to [matters not supported by the record as transmitted to this Court], we must assume that the trial court’s ruling [granting summary judgment] was correct. Id.; see Akridge v. Patillo, 44 Ga. 585 (1872).” Trend-Pak of Atlanta v. Arbor Commercial Div., 197 Ga. App. 137, 138 (1) (397 SE2d 592).

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A96A1127.
    POPE v. THE STATE.
    (472 SE2d 111)
   McMurray, Presiding Judge.

Defendant Pope appeals his conviction of five counts of kidnapping. Held:

1. Defendant Pope was indicted along with co-defendant Donna Berry. They were jointly charged with five counts of kidnapping, three counts of aggravated assault, and each was charged separately with one count of possession of a gun by an inmate. The jury which convicted defendant Pope of the kidnapping charges did not reach a verdict on the remaining charges, and they are not at issue on this appeal.

During voir dire the prosecuting attorney stated to the prospective jurors that the co-defendant had pleaded guilty to the charges. Defendant objected to that statement as improper and moved for a mistrial or continuance, whichever was proper. The prosecuting attorney agreed that he should not have made the reference to the plea of the co-defendant.

The trial court sustained defendant’s objection, instructed the jury that the prosecutor’s comment was improper, and ordered the jury to completely disregard it. The trial court further related to the jury that whether or not the co-defendant had entered a plea was not their concern, and noted that even if the co-defendant was guilty of an offense, such would not affect the right of defendant to have a trial and to enjoy a presumption of innocence. After instructing the prospective jurors, the trial court inquired as to whether any juror could not be completely fair and impartial because of anything that had happened. One juror gave an affirmative answer and was excused for cause. Two other jurors were excused for cause due to circumstances unrelated to the comment of the prosecuting attorney. Defendant renewed his motion for mistrial or continuance, and the motion was denied.

“ ‘ “In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from the consideration by the jury. (Cits.)” (Cit.)’ Foote v. State, 184 Ga. App. 900, 901 (2) (363 SE2d 180) (1987). ‘The refusal to grant a mistrial because of the improper remarks of the prosecutor is within the discretion of the trial court pursuant to OCGA § 17-8-75, and the decision will not be disturbed on appeal absent manifest abuse. (Cits.)’ Henderson v. State, 182 Ga. App. 513, 520 (5) (356 SE2d 241) (1987).” Bleckley v. State, 214 Ga. App. 860 (2) (449 SE2d 351).

While we agree with the observation of the trial court that defendant’s motion should be characterized as one for a continuance because the jury had not been impaneled, the reasoning of these motion for mistrial cases is nonetheless controlling. The curative instructions, rebuke of the prosecutor, and other precautions taken by the trial court in the case sub judice were sufficient to cure any harm created by the prosecutor’s comment. Consequently, there was no abuse of the trial court’s discretion in denying defendant’s motion. See also Willingham v. State, 212 Ga. App. 457, 458 (442 SE2d 4).

Decided May 29, 1996.

James P. Brown, Jr., for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

2. There was no error in the trial court’s refusal to give defendant’s orally requested charge on the lesser included offense of false imprisonment. This charge was not warranted by the evidence since any detention of the deputies by defendant Pope was accompanied by the element of asportation. Sallie v. State, 216 Ga. App. 502 (455 SE2d 315). Under the evidence presented at trial, defendant was guilty of the offense of kidnapping or not guilty of any offense. There was no evidence raising the lesser offense. Stovall v. State, 216 Ga. App. 138, 141 (5) (453 SE2d 110). See also Pebbles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229); Causey v. State, 215 Ga. App. 723, 724 (2) (452 SE2d 564); Jackson v. State, 213 Ga. App. 170 (2), 171 (2) (b) (444 SE2d 126).

3. The final enumeration of error questions the sufficiency of the evidence to authorize defendant Pope’s conviction of kidnapping. Viewed in the light most favorable to upholding the verdict of the jury, the State’s evidence shows that defendant Pope was a prisoner in the Henry County Jail who attempted an escape. After talking on a telephone in a hallway at the jail, defendant turned and drew a handgun on deputies who were in the midst of dispensing medicine to the prisoners. Defendant eventually held five deputies at gunpoint and demanded possession of the jail keys. On defendant’s instructions one of the deputies used the keys to open a door towards an adjoining cell block. The five deputies were ordered into and then locked in a holding cell area where they remained while defendant Pope continued his unsuccessful escape attempt. This evidence was sufficient to authorize a rational trier of fact to find defendant Pope guilty beyond a reasonable doubt of five counts of the offense of kidnapping. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Stovall v. State, 216 Ga. App. 138, 140 (4), supra.

Judgment affirmed.

Johnson, J., concurs. Ruffin, J, concurs in the judgment only.


text:
    A96A0102.
    DEPARTMENT OF HUMAN RESOURCES v. JONES.
    (472 SE2d 331)
   McMurray, Presiding Judge.

Permission to file a discretionary appeal was granted to the Georgia Department of Human Resources (“DHR”) under the following circumstances: Ostensibly under the authority of OCGA § 19-11-12, DHR, ex rel. Phyllis Jones, initiated an administrative review of respondent Mark L. Jones’ child support obligation as established by a 1989 order of the Superior Court of Upson County, Georgia. After a hearing, the administrative hearing officer determined that “Respondent’s child support obligations [should be] increased from $217.50 per month [as established by the court in 1989] to $578.65 per month,” applying the Child Support Guidelines enacted at OCGA § 19-6-15 (b). The effective date of this administrative order increasing respondent’s court-ordered child support obligations was expressly conditioned upon its being “adopted by a superior court.” On appeal, the superior court, citing Pearson v. Pearson, 265 Ga. 100 (454 SE2d 124), concluded that the exclusive method of changing court-ordered child support was through a modification action brought in the superior court, and vacated the administrative order in this case as “null and void.” DHR’s application for discretionary appeal was granted by this Court and a timely notice of appeal was filed. Held:

DHR contends the trial court erred in vacating the administrative modification order because under the Georgia Child Support Recovery Act, OCGA § 19-11-1 et seq., OCGA § 19-11-12 specifically authorizes administrative review and modification of court-ordered child support obligations, as part of a comprehensive legislative scheme to comply with the mandates of federal law, notably 42 USC § 666 (a) (10). In our view, however, this case is controlled by the recent decision in Dept. of Human Resources v. Siggers, 219 Ga. App. 1 (463 SE2d 544), cert. denied. In Siggers, this Court held that OCGA § 19-11-12 (b) authorizes administrative “review and adjustment only of a TV-D agency decision’ as defined in Rule 290-7-1-.03 (n) [of the Rules and Regulations of the State of Georgia]: ‘the administrative decision of the DHR, Office of Child Support Recovery,’ and not a court order.” (Emphasis in original.) 219 Ga. App. 1, 2, supra. “The Georgia Supreme Court has authorized DHR to bring a legal action in the superior court to modify child support obligations. Allen v. Ga. Dept. of Human Resources, 262 Ga. 521, 523 (1) (423 SE2d 383) (1992). We conclude, however, that OCGA § 19-11-12 does not authorize extrajudicial agency review of a court order, as DHR here contends^ even though that administrative order was explicitly conditioned upon approval by the superior court after review of a final administrative decision under OCGA § 50-13-19 of the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq.].” (Emphasis in original.) Dept. of Human Resources v. Siggers, 219 Ga. App. 1, 2, supra.

Decided May 17, 1996

Reconsideration denied May 30, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin O’Conner, Assistant Attorney General, for appellant.

Alan W. Connell, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0354.
    LINDSTROM v. FORSYTH COUNTY et al.
    (472 SE2d 106)
   McMurray, Presiding Judge.

Plaintiff Lindstrom filed this action for damages predicated on theories of inverse condemnation and continuing nuisance against defendants Forsyth County, Georgia and the City of Cumming, Georgia. After defendants’joint motion for judgment on the pleadings was granted, plaintiff filed a notice of appeal on March 30, 1995, which “requested that the clerk send the complete file and record to the Court of Appeals including a Transcript of evidence and proceedings. . . In fact, there was no transcript of the proceedings below as “the matter had not been reported.”

On June 16, 1995, defendants filed a motion to dismiss the appeal on the grounds that transmittal of the record by the superior court clerk to this Court had been delayed solely due to “[alppellant’s [Lindstrom’s] mistake in requesting a non-existent transcript.” Defendants’ motion to dismiss was supported by affidavits of the court reporter and of a deputy clerk which show that no transcript was requested by plaintiff and that the record below was ready for transmission to this Court, but for the absence of the expected transcript, since approximately April 15, 1995.

Plaintiff responded to defendants’ motion to dismiss by attempting to show diligence in following the progress of the superior court clerk in preparing the record for transmission. Plaintiff’s evidence shows that a secretary to plaintiff’s attorney contacted the superior court clerk’s office on four occasions over approximately two months beginning April 24, 1995, and inquired each time as to the progress of preparation of the record. The secretary states that on the first three of these contacts she was told that the record was not ready to send up to this Court and that no mention was made of the absence of a transcript.

Decided May 17, 1996

Reconsideration denied May 30, 1996.

Crecelius & Nardone, Bill W. Crecelius, Jr., for appellant.

Boling, Rice, Bettis, Bagley & Martin, Jeffrey S. Bagley, Angela F. Martin, Banks, Stubbs & Neville, Robert S. Stubbs III, John R. Neville, for appellees.

The superior court concluded that an unreasonable and inexcusable delay in the transmission of the record of the case to this Court “was caused by the inaccurate designation in the Notice of Appeal” that a transcript would be filed. Defendants’ motion to dismiss was granted and plaintiff appeals. Held:

Pursuant to OCGA § 5-6-43 (a), where no transcript of evidence and proceedings is to be sent up, the clerk of the lower court shall prepare and transmit the record within 20 days of the filing of the notice of appeal. We have previously held that dismissal of an appeal is proper under the analysis provided by OCGA § 5-6-48 (c) “where transmittal of the record to the appellate court was delayed because (1) the notice of appeal mistakenly designated that a (non-existent) transcript would be included as part of the record, and (2) the appellant made no effort to expedite the appeal. . . .” Johnston v. Ga. Pub. Svc. Commn., 209 Ga. App. 224, 225 (433 SE2d 65). See also Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133). While plaintiff relies upon the secretary’s affidavit to provide proof of efforts to expedite the appeal and thus distinguish these earlier cases, we must note that the conflicting evidence from defendants was sufficient to frame factual issues which have been resolved adversely to plaintiff by the superior court. Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359). There was no abuse in the superior court’s factual findings and grant of defendants’ motion to dismiss.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0039.
    RICHARDSON v. GENERAL MOTORS CORPORATION.
    (472 SE2d 143)
   McMURRAY, Presiding Judge.

Marzine Richardson filed an action against General Motors Corporation (“General Motors”) to recover losses she allegedly sustained after purchasing a defective automobile from General Motors. General Motors denied the material allegations of the complaint and, after extended discovery, filed a motion to enforce settlement that was allegedly reached by the parties. The trial court granted this motion, finding that the parties settled the case in exchange for General Motors’ promise to “pay [Richardson] twenty thousand dollars ($20,000) to buy back [Richardson’s] 1993 Pontiac Firebird.” The trial court amended this order on April 28, 1995, requiring General Motors to pay $1,000 into the trial court’s registry to satisfy an attorney fees lien filed by Richardson’s former attorney. The trial court stated that “[a] hearing will be set at a later date with respect to this lien.” Richardson later filed a notice of appeal, specifying that the appeal is “from a judgment/order of the Superior Court of Fulton County entered in the clerk’s office on April 28, 1995, and which judgment/order modified a previous order of the court dated 2/2/95 enforcing a purported Agreement between the parties.” Before this direct appeal was docketed in the Court of Appeals, the trial court entered a final order on June 8,1995, disbursing the money to satisfy the attorney’s lien. Held:

“Where the notice of appeal specifies that the appeal is taken from an order which is not appealable and where the appeal is in fact taken from such an order, the appeal is subject to dismissal. See generally Parish v. Ga. R. R. Bank & C. Co., 115 Ga. App. 540 (154 SE2d 750) (1967); OCGA § 5-6-48 (b) (2).” Martin v. Farrington, 179 Ga. App. 227 (346 SE2d 5). Richardson’s notice of appeal in the case sub judice is from an order which, by its very terms, is interlocutory and therefore appealable only via the procedure set forth in OCGA § 5-6-34 (b). Consequently, since Richardson failed to follow this subsection’s interlocutory appeal procedure and since no amendment has been “filed to correct [the] defect [in the notice of appeal, the appeal must be dismissed]. Compare Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984); Blackwell v. Cantrell, 169 Ga. App. 795 (1) (315 SE2d 29) (1984).” Martin v. Farrington, 179 Ga. App. 227, supra. Dismissal of the appeal is unavoidable even though the trial court issued a final judgment on June 8, 1995. “ ‘The fact that an appealable judgment is shown to exist, or that the antecedent ruling on the motion . . . would be reviewable when enumerated as error on the proper designation of an appealable judgment, does not cure the fatal defect in the notice of appeal arising from the failure to appeal from such a judgment. Accordingly, this court is [simply] without jurisdiction to entertain the appeal.’ (Emphasis supplied.) Ruth v. Kennedy, 117 Ga. App. 632 (161 SE2d 410); see also Fredricks v. State, 168 Ga. App. 278 (308 SE2d 693).” Whiddon v. Stargell, 192 Ga. App. 826, 828 (386 SE2d 884). Compare Ballew v. State, 225 Ga. 547, 548 (170 SE2d 242); Seaton v. Aetna Cas. &c. Co., 189 Ga. App. 546, 547 (1) (376 SE2d 712).

Decided May 30, 1996.

Kunle Ogundele, for appellant.

King & Spalding, Sara E. Barton, Chilton D. Varner, for appellee.

Appeal dismissed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0246.
    THE STATE v. WRIGHT.
    (472 SE2d 144)
   McMURRAY, Presiding Judge.

The State filed this appeal after the trial court granted defendant’s motion for discharge and acquittal filed pursuant to OCGA § 17-7-170 (b). Dismissing the State’s assertion that defendant’s demand for trial is deficient because it is captioned with an inaccurate indictment number, the trial court found that the demand “sufficiently identifies the particular charge to which the demand relates so as to place the state on fair notice.” We affirm because the circumstances reveal that, notwithstanding an inaccurate indictment number, defendant’s demand fully apprised the State of defendant’s desire for speedy trial pursuant to OCGA § 17-7-170 for the crime charged in the case sub judice.

Defendant was indicted for trafficking in cocaine in the Laurens County Superior Court on March 1, 1994. “[A]fter the filing of pretrial discovery motions the case was nolle prossed by order dated June 27, 1994.” But not before another indictment had been entered against defendant on June 7, 1994, charging him with the same trafficking in cocaine offense. The second indictment was designated indictment no. 94-FE-247-F and the “nolle prossed” indictment was designated indictment no. 94-FE-127-F.

On August 11, 1994, during the July 1994 term of the Laurens County Superior Court, defendant filed a motion reserving the right to file additional motions, a motion to suppress, a motion to reveal the deal and a document titled, “DEMAND FOR TRIAL.” Although these filings are captioned with the “nolle prossed” indictment’s case number, “[a]ll [of the] motions, including the Demand For Trial, [display indictment number 94-FE-247-F’s style and] were filed in the active case, to wit: 94-FE-247-F.” Further, the demand for trial document provides as follows: “NOW COMES SHONYA L. WRIGHT, the Defendant in the above-styled case, at the July, 1994 term of this Court, after the above-styled indictment was returned at the April term of this Court, 1994, and while there are jurors impaneled and qualified to try this case at this term, the Defendant makes this Demand for Trial and asks that the same be placed on the minutes and that he be tried at this term or at the next term of the Court, or in default of such trial, that he be fully acquitted and discharged of said offense.”

When indictment no. 94-FE-247-F was called for trial on August 7, 1995, defendant asserted an oral motion for discharge and acquittal based on the State’s failure to bring him to trial within the time specified by OCGA § 17-7-170 (b). Although it is undisputed that more than three full terms of court had passed (where qualified juries were impaneled) since defendant had filed his demand for trial, the State argued that defendant’s motion for discharge and acquittal was moot because the demand was captioned with an indictment number that was assigned to a case that had been nolle prosequi on June 27, 1994. The trial court did not agree with the. State, deciding that the document titled, “DEMAND FOR TRIAL,” not only conveys a demand for trial pursuant to OCGA § 17-7rl70, but — even with the “nolle prossed” indictment’s case number — “sufficiently identifies the particular charge to which the demand relates so as to place [the] state on fair notice.” The trial court bolstered this conclusion (with parallel logic) by observing that the State responded to the “discovery motions” that were filed when defendant filed his demand for trial, even though the “discovery motions” were also filed with the “nolle prossed” indictment’s case number. Thus, finding that defendant was not brought to trial within the time specified by OCGA § 17-7-170 (b), the trial court granted defendant’s motion for discharge and acquittal. Held:

1. The State first challenges the trial court’s determination that it responded to the “discovery motions” that were filed when defendant filed his demand for trial, asserting that the State provided defendant with “substantially the same information previously provided in case number 94-FE-127-F [and that this information] was furnished merely as a courtesy to defense counsel and out of a sense of fair play and justice [so] that [defendant] would receive the information necessary to insure a fair trial in case 94-FE-247-F, although clearly the State was under no obligation to do so.” This enumeration provides no basis for reversal.

The trial court’s finding regarding the State’s response to defendant’s “discovery motions” has no impact upon the issue of whether defendant’s demand for trial reasonably conveyed a desire for speedy trial pursuant to OCGA § 17-7-170 for the particular crime charged in the case sub judice. See Ferris v. State, 172 Ga. App. 729, 730 (1) (324 SE2d 762). The critical evidentiary finding in this regard is undisputed, i.e., the State was fully aware at the time defendant filed his demand for trial with the “nolle prossed” indictment’s case number that the trafficking in cocaine offense charged in indictment no. 94-FE-127-F is based on the same incident which is the basis for the offense charged in indictment no. 94-FE-247-F.

Decided May 30, 1996.

Ralph M. Walke, District Attorney, Louie C. Fraser, Jeffrey J. Connor, Assistant District Attorneys, for appellant.

Mitchell M. Shook, Jason A. Craig, for appellee.

2. The State contends defendant’s motion for discharge and acquittal is moot because defendant’s demand for trial is captioned with an indictment number that was assigned to a case that was disposed of via nolle prosequi on June 27, 1994. This assertion is without merit.

In State v. Allen, 192 Ga. App. 730, 732 (2), 733-734 (386 SE2d 394), this Court held “that ‘ “there is no magic in nomenclature” and we will construe (a pleading) to serve the pleader’s best interests and “by its function rather than by its name.” (Cits.)’ 192 Ga. App. at 734. See also State v. Givens, 211 Ga. App. 71, 72 (438 SE2d 387) (1993).” Aranza v. State, 213 Ga. App. 192, 193 (1) (444 SE2d 349). Although defendant’s demand for trial in the case sub judice does not identify the particular crime for which defendant is charged and displays an inaccurate indictment number, the demand in question references defendant’s name and the term of court in which indictment no. 94-FE-247-F was returned. Further, defendant’s demand for trial is captioned with a style which identifies defendant as a party to an action pressed against him by the State and the body of the demand clearly conveys a demand for trial pursuant to OCGA § 17-7-170. Finally, and most persuasively, defendant’s demand for trial is captioned with an indictment number which references the same prosecution under which defendant is charged in the case sub judice. Under these circumstances, we cannot say the trial court erred in finding that defendant’s demand was sufficient to place the State on notice of defendant’s intention to invoke the extreme sanction of OCGA § 17-7-170. Accordingly, the trial court did not err in granting defendant’s motion for discharge and acquittal.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


text:
    A96A0526, A96A1392.
    AYCOCK v. RE/MAX OF GEORGIA, INC. (two cases).
    (472 SE2d 137)
   McMurray, Presiding Judge.

Plaintiff John S. Aycock, Jr. brought this action against defendants RE/MAX of Georgia, Inc. (“RMGI”) and William H. Allen, seeking to have the superior court declare invalid a certain arbitration award (“the Award”) and “order defendant RE/MAX of Georgia, Inc. to hold a new arbitration before different arbitrators who will give [plaintiff] Mr. Aycock due process of law.” This Award arose out of a previous action by William H. Allen against John S. Aycock, Jr., “seeking to recover real estate commissions relating to the closings of the sale of three properties. . . .” The parties had “agree[d] to arbitration [of that claim for commissions] under the Arbitration Rules of the RE/MAX Dispute Resolution System [(‘the RE/MAX Rules’)]-” Defendant RMGI acted as the administrator for this arbitration. At the arbitration hearing, “Mr. Allen presented documentary evidence and the testimony of witnesses and Mr. Aycock presented documentary evidence and the testimony of witnesses. After Mr. Allen, Mr. Aycock and their attorneys presented closing statements, the arbitrators closed the hearing and Mr. Allen, Mr. Aycock and their attorneys left the hearing room.” “After the closing of the hearing, the arbitrators, through defendant [RMGI], [allegedly] secretly requested that Mr. Allen supply them with additional evidence for them to consider in reaching their decision. . . . Mr. Allen [allegedly] conspired with defendant [RMGI] and did secretly supply the arbitrators with additional evidence which they used in making their arbitration award [of $18,087.37 in favor of William H. Allen].” In response to William H. Allen’s motion to have the superior court confirm the Award, plaintiff brought this action. In addition to conspiracy, plaintiff alleged that the procedure by which the arbitrators solicited additional evidence from William H. Allen violated certain of the RE/ MAX Rules, providing that evidence submitted after the hearing “shall be filed with the [RE/MAX] Administrator for transmission to the arbitrator. All parties shall be afforded an opportunity to examine such documents or other evidence.” Plaintiff contended that the alleged intentional violation of a private duty amounted to a tort actionable under OCGA § 51-1-8 and sought compensatory and punitive damages (Count 4). He also sought recovery of attorney fees he paid for representation at that arbitration hearing (Count 3) and OCGA § 13-6-11 attorney fees and costs of litigation (Count 5). Defendant RMGI answered, denying the material allegations and defended in part on the ground that Rule 44 of the RE/MAX Rules holds that the “administrator of an arbitration shall not be liable to any party for any act or omission in connection with any arbitration conducted under these rules.” Defendant William H. Allen answered, denying the material allegations and defended on the basis of arbitration and award. He further contended that plaintiff has the right under the Georgia Arbitration Code to seek to vacate the award in the court in which William H. Allen’s complaint was filed.

In William H. Allen’s action for commissions, the superior court affirmed the Award of the arbitrators and that judgment was affirmed without opinion by the Georgia Court of Appeals in Case No. A95A0748, decided May 31, 1995. Plaintiff subsequently dismissed his action as against defendant William H. Allen. Defendant RMGI moved for summary judgment, supporting its motion in part with the superior court’s order of October 20, 1994, denying John S. Aycock, Jr.’s motion to vacate the Award and granting William H. Allen’s motion to confirm the Award. The trial court determined that plaintiff’s claims of conspiracy and “intentional wrongdoing on the part of [defendant RMGI] or [William H.] Allen are not supported by any evidence.” The trial court further concluded that plaintiff has no tort claim for compensatory damages, because “arbiters and administrators of arbitration programs must have qualified immunity from tort liability in the absence of fraud, intentional misconduct or corruption. . . . Second, [the trial court determined] there has been no showing that the [RE/MAX] Rules were violated [. . . and that plaintiff has sustained] no damages resulting from any act of [RMGI]. . . . Third, in agreeing to arbitrate under the [R]ules of the RE/MAX Dispute Resolution System, Plaintiff released Defendant [RMGI] of [sic] any and all liability arising from its administration or service in connection with the arbitration.” Consequently, the trial court granted RMGI’s motion for summary judgment. In Case No. A96A0526, plaintiff filed a direct appeal from that order. Within 45 days from the trial court’s entry of summary judgment, defendant moved for an award of attorney fees and expenses of litigation under OCGA § 9-15-14 (a). This application was supported by the affidavit of counsel for defendant, itemizing $13,348 in reasonable fees and $1,102.21 in necessary expenses incurred. In Case No. A96A1392, plaintiff appeals from the order of the trial court awarding these items. Held:

Case No. A96A0526

1. Plaintiff contends the trial court erred in granting summary judgment with respect to Counts 3, 4, and 5, demanding compensatory and punitive damages, the costs of representation during the initial arbitration and OCGA § 13-6-11 costs of litigation. We disagree.

“The Georgia Arbitration Code ‘shall apply to all disputes in which the parties thereto have agreed in writing to arbitrate and shall provide the exclusive means by which agreements to arbitrate can be enforced.’ [OCGA § 9-9-2 (c).] By its enactment, the Arbitration Code repealed common law arbitration in its entirety, and it must, therefore, be strictly construed.” Greene v. Hundley, 266 Ga. 592, 594 (1) (468 SE2d 350). Pretermitting whether the plaintiff stated any tort cause of action against the administrator of the arbitration, it is our view that the final order confirming the award conclusively establishes that plaintiff sustained no compensable damages as a result of the acts alleged. Unless and until that confirmation of the award is set aside under OCGA § 9-11-60 (d) (2) in the court of rendition (or the award itself is vacated under OCGA § 9-9-13 (b)), it is binding on plaintiff. OCGA § 9-9-12; Greene v. Hundley, 266 Ga. at 595-597 (3), supra. The trial court correctly granted summary judgment to RMGI, the administrator of the arbitration.

Case No. A96A1392

2. Plaintiff contends the trial court’s order awarding attorney fees and the expenses of litigation must be vacated because the order does not include any findings of conduct that would authorize the award. We agree.

“In any civil action . . ., reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” OCGA § 9-15-14 (a). Where a judgment contains “no findings by the trial court of conduct that would authorize the award of legal fees [or expenses of litigation] under OCGA § 9-15-14 [(a)], that portion of the judgment must be vacated.” Coker v. Mosley, 259 Ga. 781 (2), 782 (2) (c) (387 SE2d 135). Accord Keeler v. Keeler, 263 Ga. 151, 152 (2) (430 SE2d 5); Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31).

The trial court’s order in the case sub judice recites only that, after consideration of “the entire record, testimony and evidence, and argument of counsel[, ... it] appear[s] that Defendant RE/MAX of Georgia, Inc. is entitled to recover its [attorney] fees and expense[s] of litigation from Plaintiff John S. Aycock pursuant to O.C.G.A. § 9-15-14 (a).” This purported finding is entirely too vague and conclusory to permit any meaningful appellate review of the award of attorney fees and expenses of litigation under OCGA § 9-15-14 (a). Although the record in the case sub judice may reveal conduct authorizing an award in some amount, it is incumbent upon the trial court to specify that conduct. That was not done in this case, and the award of OCGA § 9-15-14 (a) attorney fees and expenses of litigation must be vacated. The case is remanded with direction that the trial court make express findings on the record as to the conduct relied on to authorize any award under OCGA § 9-15-14 (a). This disposition renders plaintiff’s remaining contentions moot.

Decided May 30, 1996

Frederick G. Boynton, for appellant.

Cauthorn & Phillips, Thomas E. Cauthorn III, Bruce W. Phillips, for appellee.

Judgment affirmed in Case No. A96A0526. Judgment vacated and remanded with direction in Case No. A96A1392.

Johnson and Ruffin, JJ, concur.


text:
    A96A0668, A96A0669.
    McWHORTER et al. v. GREENE et al. (two cases).
    (472 SE2d 135)
   McMurray, Presiding Judge.

Jaunelle T. McWhorter transferred a 7.37-acre parcel of real property (“the land” or “the parcel”) to her daughter and son-in-law, Teresa K. Clauson and Paul D. Clauson. Neighboring property owners objected, however, when the Clausons moved a modular home onto the land and began hooking up utilities, installing a sewage filtration system and adding a foundation and driveway. Ultimately, Roger O. Greene, Louise G. McGhee, James T. Davis, Edward J. Lunsford, Barbara A. Lunsford, Jimmy L. Ward, Astra V. Ward, Arthur W. Jamison and Lisa E. Jamison (plaintiffs), asserted an action against the Clausons and McWhorter (defendants) to enforce a restrictive covenant entered in the parcel’s chain of title on June 2, 1976, which bans use of any “ ‘mobile home’ ” on the land.

After a bench trial, the trial court entered an order declaring that the restrictive covenant is enforceable by operation of OCGA § 44-5-60 (b) until June 2, 1996; that the Clausons’ “structure is a mobile home, and [that it therefore] cannot be placed on the property until June 2, 1996, when the covenant expires.” Defendants filed a notice of appeal from this order, after which the trial court entered another order directing “defendants [to] remove the triple wide mobile home [from the parcel] within 60 days from the date of this order [and enjoining them] from placing on [the land] a mobile home, manufactured home, or other structure defined by O.C.G.A. § 8-2-31 from the date of this Order until Midnight on June 2, 1996. . . .” The appeal which arose from the trial court’s first order was docketed in this Court as Case No. A96A0668. And the appeal which arose from the trial court’s second order is designated in this Court as a companion to Case No. A96A0668 and was docketed as Case No. A96A0669. Defendants have filed the same enumeration of errors and brief in support of both appeals. Held:

Decided May 30, 1996.

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, Michelle L. Schieber, for appellants.

Walter E. King III, for appellees.

“If an appellant or cross-appellant will benefit by reversal of a case, his appeal is not moot. See Kubler v. Goerg, 197 Ga. App. 667, 671 (399 SE2d 229).” Johnson & Harber Constr. Co. v. Bing, 220 Ga. App. 179 (1), 180 (469 SE2d 697). If, however, reversal of a trial court’s judgment is of no practical benefit to the parties, any issues raised on appeal are rendered moot. Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117 (446 SE2d 794). In the cases sub judice, defendants do not challenge the trial court’s determination that the restrictive covenant at issue expires by operation of OCGA § 44-5-60 (b) on June 2, 1996, and plaintiffs have not challenged this ruling on appeal. It thus appears that plaintiffs lost standing to .enforce the restrictive covenant against defendants after June 2, 1996, and that, as a consequence, neither reversal of the trial court’s declaratory judgment in Case No. A96A0668 nor reversal of the trial court’s equitable judgment in Case No. A96A0669 would be of practical benefit to the parties. The issues raised in these appeals “are [therefore] rendered moot. See Baker v. State, 240 Ga. 431 (241 SE2d 187). See also Cagle v. PMC Dev. Co. of Ga., 233 Ga. 583 (212 SE2d 765). [Further,] ‘we find [these actions do] not fall within that class of cases which would inevitably evade review.’ Mulling v. Wilson, 245 Ga. 773, 775 (267 SE2d 212). Compare In re Jane Doe, 262 Ga. 389 (418 SE2d 3). This court ‘will not retain jurisdiction of a moot case to consider basic legal questions even though [plaintiffs] “might derive some benefit in future litigation from a favorable adjudication of the question. (Cits.)” Berrie v. Baucknecht, 224 Ga. 432, 433 (162 SE2d 317).’ Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 206 Ga. App. 315, 317 (425 SE2d 340). [And in this regard, see Douglas County v. Hasty, 237 Ga. 646 (229 SE2d 435); Bd. of Commrs. of Richmond County v. Cooper, 259 Ga. 785 (387 SE2d 138). The] ‘appeal[s in the cases sub judice are] accordingly dismissed as moot.’ Brown v. Taylor, 193 Ga. App. 134, 135 (387 SE2d 25).” Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117, 118, supra.

Appeals dismissed.

Johnson and Ruffin, JJ, concur.

Roger O. Greene, pro se.