text:
    A90A0931.
    EVANS v. THE STATE.
    (395 SE2d 342)
   Banke, Presiding Judge.

On appeal from her conviction of selling cocaine, the appellant contends that the trial court erred in failing to declare a mistrial on the ground that the conduct of a juror tainted the jury panel during their deliberations.

After the jury had retired for deliberations, the foreman submitted a note to the court, stating as follows: “We have a juror that knows the defendant well enough to influence her decision. We (all jurors) request [the] presence of [an] alternate juror.” The trial court thereupon instructed the jury to cease deliberations and summoned the foreman to the courtroom, where he (the foreman) stated that the juror’s knowledge of the defendant was interfering with her ability to arrive at a verdict. The juror in question was then brought into the courtroom and asked whether she concurred in the request to be relieved. She responded in the affirmative, whereupon the court asked her whether she had “tried to use this knowledge [of the defendant] to influence the other jurors in any way?” She responded that she had not, and was thereupon excused. The jury was then dismissed for the day and the following day resumed its deliberations with an alternate juror in her place. During voir dire, the original juror had acknowledged that she knew the defendant very well but had stated that she nevertheless believed she could be impartial. Held:

“There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. [Cit.]” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986). Although the trial judge questioned the juror in this case regarding whether she had “tried to influence” the other jurors, he did not question the other jurors to determine whether they had nevertheless been affected by anything she might have told them about the appellant or about her feelings towards him. We are thus constrained to hold that the record fails to establish beyond a reasonable doubt that no harm occurred. Accord Moore v. State, 184 Ga. App. 524 (1) (362 SE2d 76) (1987). Compare Motes v. State, 192 Ga. App. 302 (384 SE2d 463) (1989).

Decided June 12, 1990.

Diane M. Zimmerman, for appellant.

Edward D. Lukemire, District Attorney, Robert E. Turner, Assistant District Attorney, for appellee.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A90A0412.
    SMITH v. SHAW et al.
    (395 SE2d 286)
   Carley, Chief Judge.

Appellant-plaintiff brought suit against both appellee-defendant Kenneth L. Shaw and his son, seeking a recovery for damages arising out of a vehicular mishap involving a car owned by appellee but driven by his son. On May 9, 1989, appellee filed a motion for summary judgment based upon the non-applicability of the “family purpose doctrine.” A hearing on appellee’s motion was set for June 19. However, the only supporting affidavit was filed on May 31. When appellant objected that appellee’s supporting affidavit had not been timely filed so as to warrant consideration at the hearing scheduled for June 19, the trial court ordered a continuance and reset the hearing for July 13. The hearing was held on the rescheduled date, and the trial court subsequently granted appellee’s motion for summary judgment. It is from this order that appellant brings this appeal.

1. Appellant enumerates as error the trial court’s consideration of appellee’s affidavit.

OCGA § 9-11-56 (c) “requires that only supporting material which is ‘on file’ at least 30 days before the hearing shall be considered for the movant.” Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631, 632 (278 SE2d 377) (1981). In the instant case, appellee’s supporting affidavit was filed less than 30 days before the originally scheduled hearing date of June 19. However, appellee’s affidavit had been on file for more than 30 days when the actual hearing was held because the trial court had continued the hearing on appellee’s motion until July 13. Compare Jones v. Howard, 153 Ga. App. 137, 141 (1) (264 SE2d 587) (1980), wherein the record did “not indicate that upon appellant’s objection to the late-filed affidavit, he was offered but refused a 30-day continuance.” The grant of a continuance is within the sound discretion of the trial court. Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500, 503 (2) (333 SE2d 884) (1985). Appellant has not shown how the trial court abused its discretion and we find that it did not. Accordingly, this enumeration of error is without merit.

Decided May 30, 1990

Rehearing denied June 13, 1990 — Cert, applied for.

Claude E. Smith, pro se.

Russell, Adamson & Stell, John E. Stell, Jr., for appellees.

2. The trial court’s purported failure to give any consideration or review to appellant’s “opposing responses” to appellee’s motion is enumerated as error.

In its order granting summary judgment, the trial court stated that it had considered the pleadings, the motion, appellee’s supporting affidavit, the response filed by appellant and all other matters on file as of the date of the hearing. Accordingly, this court will not hold that relevant evidence of record was not considered by the trial court prior to ruling on the appellee’s motion merely because the trial court, at the hearing, stated that it had not yet read appellant’s responses. See Light v. Equitable Mtg. Resources, 191 Ga. App. 816, 817 (1) (383 SE2d 142) (1989); General Motors Corp. v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979). Furthermore, nothing in appellant’s response to appellee’s motion would show that the grant of that motion was erroneous. “Since the uncontradicted evidence shows that [appellee’s son’s] use of the car was not under [appellee’s] authority or control, the trial court was correct in granting his motion for summary judgment.” Finley v. Berman, 190 Ga. App. 692, 694 (379 SE2d 640) (1989). See also Quan v. Johnson, 190 Ga. App. 510 (379 SE2d 426) (1989).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A0601.
    CROOK et al. v. WEST et al.
    (395 SE2d 260)
   Banke, Presiding Judge.

The appellants, W. Tony Crook and TAC Builders, Inc., sued the appellees, Mr. and Mrs. West, alleging that the latter had breached a contract to purchase a residence which the appellants had constructed for them. The appellees denied liability and counterclaimed to recover a $2,000 earnest money deposit which they had paid on the property. The case was tried before a jury, which found for the appellees based on a determination that there was a valid contract between the parties but that it was the appellant builders who were in breach of it. The appellants’ sole contention on appeal is that the evidence did not support the jury’s verdict.

The parties’ dispute was over the purchase price of the property. On the first page of their 8-page contract, there appeared, under the heading, “PURCHASE PRICE AND METHOD OF PAYMENT,” the following language: “The purchase price of said property shall be . . . $125,900.00. . . .” However, immediately preceding this language was the statement, “PURCHASE PRICE SUBJECT TO MODIFICATION PRIOR TO CLOSING”; and page 7 of the contract consisted, in its entirety, of a provision, entitled “RESPONSIBILITY TO COOPERATE AND BUILDER’S PROFIT,” which specified, in pertinent part, as follows: “The final purchase price will be determined by the actual construction costs of the building, including land and all documented related construction costs, . . . plus 20% of this total cost figure.” The appellants alleged in their complaint that their “actual construction costs were approximately $160,000, and that, accordingly, the purchase price on a cost-plus-profit (20%) basis would be approximately $192,000.00.”

While the appellees conceded at trial that the stated price of $125,900 was intended to be subject to some fluctuation, up or down, based on the price of materials, they indicated that a disparity of the size which actually occurred was outside the realm of contemplation. The appellees were willing to close for $125,900 but not at the higher price demanded by the appellants. Held:

Even taking into consideration the appellees’ concession that the “fixed price” amount was intended to be subject to some fluctuation, the jury was authorized to find that the two purchase price provisions were not consistent, given the more than 50-percent discrepancy between the fixed-price amount and the cost-plus amount ultimately demanded by the appellants. Generally speaking, “the law in Georgia [is] that the first of two contradictory contract clauses will prevail.” Joseph Camacho Assoc. v. Millard, 169 Ga. App. 937, 938 (315 SE2d 478) (1984). Furthermore, the contract was prepared by appellant Crook, who testified that he had a law degree; and “[i]t is well established that any ambiguity in a contract is to be construed against the party who drafted it.” National City Bank of Rome v. Busbin, 175 Ga. App. 103, 107 (332 SE2d 678) (1985). See OCGA § 13-2-2 (5). It follows that the jury’s verdict was not contrary to the evidence.

Decided May 25, 1990

Rehearing denied June 13, 1990.

Grover C. Bailey, for appellants.

Zachary & Segraves, W. E. Zachary, Sr., for appellees.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0820.
    HAUGEBROOKS v. THE STATE.
    (395 SE2d 348)
   Banke, Presiding Judge.

Following a 1984 incident in which he allegedly smashed some windows in an apartment and pointed á pistol at a police officer, the appellant was indicted for criminal damage to property in the second degree, aggravated assault upon a police officer, and possession of a firearm by a convicted felon. He was found not guilty of these offenses by reason of insanity and was committed to the custody of the Georgia Department of Human Resources pursuant to OCGA § 17-7-131. Each year for the past four years he has made application to the committing court for release from such commitment, and each year his application has been denied. This appeal is from the most recent such denial, entered on September 12, 1989.

According to the Medical Director of the Forensic Psychiatry Unit at Georgia Regional Hospital, the appellant’s current diagnosis is “schizophrenia, paranoid type, in remission.” This witness stated that in her opinion the appellant was “quite capable of taking care of himself at this time” and that he posed no threat to himself or others. However, it was shown that approximately a year prior to the hearing the appellant had undergone a “decompensation” after being taken off his medication; and the psychologist who had been responsible for supervising his care and treatment at that time testified that he believed that without his medication the appellant would probably decompensate again over time. It was shown that the appellant had been an outpatient at the Fulton County Mental Health Center at the time of the incident which led to his indictment in 1984 and that his violent outburst on that occasion had occurred after he discontinued taking his prescribed medication. Held:

“ ‘Under our law the acts admitted by the (special plea of insanity) establish that the (appellant) meets the criteria for civil commitment. (Cits.) Once that condition has been established, it is presumed to continue at the time of the application for release. Clark v. State, 245 Ga. 629 at 631. The burden is on the applicant to establish he does not meet the criteria for involuntary commitment. OCGA § 17-7-131 (f) (2). . . . The trial judge, as the finder of fact, is not bound by the opinions of either lay or expert witnesses and may rely upon the basic presumptions permitted by law. Moses v. State, 245 Ga. 180, 181. . . .’ [Cit.]” Cox v. State, 171 Ga. App. 550, 551 (320 SE2d 611) (1984).

Decided June 13, 1990.

Lori D. Spielberger, Jonathan Goldberg, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, A. Thomas Jones, Rebecca A. Keel, Assistant District Attorneys, for appellee.

In this case, as in Cox, supra, the evidence authorized the trial court to deny the appellant’s application for release from commitment.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Beasley, Judge.

text:
    A90A0366.
    CASSIDY v. WILSON et al.
    (395 SE2d 291)
   Beasley, Judge.

Cassidy, defendant to counterclaims of abusive litigation, appeals judgments for plaintiffs Wilson, Marcus and Peachtree Buckhead Associates, after a bench trial. The trial court awarded $1,000 each to Wilson and Marcus for compensatory damages, $4,000 to each of them for punitive damages, and $2,182 to Peachtree Buckhead for damages under an indemnification contract. Cassidy enumerates three grounds of error. 1) Because the cases were previously settled for a valuable consideration, there was an accord and satisfaction and the court should have granted his motion to enforce settlement. 2) There was no basis for an award under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), in that Cassidy did not lack substantial justification or probable cause to believe the truth of the allegations of his counterclaim; that the preponderance of the evidence did not show wilfulness or wanton or reckless disregard of consequences by Cassidy so that as a matter of law there could be no punitive damages. 3) Peachtree Buckhead was not entitled to damages for indemnification because the contract had expired two years before.

Beginning in 1985, Cassidy was a tenant in an apartment complex under a lease agreement with The Four Mid Able Group, d/b/a Bennington Towers, as lessor. In 1987 a dispossessory action was brought against Cassidy by The Four Mid Able Group, later amended to substitute Peachtree Buckhead as its successor in title. Marcus as the attorney representing the landlord was the affiant in the proceedings and Wilson was the managing agent for Bennington Towers.

Cassidy filed an answer which, besides denying the material allegations of the complaint, asserted that The Four Mid Able Group had no standing to sue and that it, Wilson and Marcus had tortiously interfered with Cassidy’s civil rights, abused legal process and maliciously prosecuted him in violation of the United States and Georgia Constitutions. He also counterclaimed asserting that plaintiff's had brought a groundless action against him in the false and fraudulent name of one not a party in interest and under circumstances where there was no basis for recovery; that the plaintiffs were aware of these facts and proceeded in wilful, wanton and reckless disregard of Cassidy’s constitutional rights; that as a consequence Cassidy suffered mental anguish, past, present and future; that their concurrent acts constituted abusive litigation. Cassidy sought compensatory damages of $50,000, punitive damages of $1,000,000 and attorney fees of $25,000.

Plaintiffs filed Yost and OCGA § 9-15-14 abusive litigation counterclaims against Cassidy for filing his counterclaim against them. They asserted there was 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 counterclaim; that Cassidy brought his counterclaim lacking substantial justification, and it was substantially frivolous, groundless and vexatious, filed for no other purpose than to delay proceedings and to harass Wilson and Marcus; that he acted wilfully in conscious disregard of the consequences; that they suffered and will continue to suffer damages. They sought compensatory and punitive damages for Cassidy’s conduct.

After discovery began, Cassidy failed to respond to certain interrogatories and to appear for his deposition. Wilson, Marcus and Peachtree Buckhead filed a motion for sanctions under OCGA § 9-11-37. The trial court imposed the sanctions of Striking Cassidy’s pleadings and declaring him in default. Following a bench trial, the judgment awarded damages to Wilson, Marcus and Peachtree Buckhead.

Where a default judgment has been imposed as a sanction pursuant to OCGA.§ 9-11-37, the provisions of OCGA § 9-11-55 (a) apply. House v. Hewett Studios, 125 Ga. App. 127, 128 (2) (186 SE2d 584) (1971). That means the plaintiff or non-defaulting party is entitled to verdict and judgment by default “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence . . . unless the action.is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages. . . .” OCGA § 9-11-55 (a).

Because the damages sought in the counterclaim were either unliquidated or ex delicto, the plaintiffs in the abusive litigation counterclaim did have to establish the amount of their damages. Ross v. White, 175 Ga. App. 791, 792 (4) (334 SE2d 371) (1985). They were not required to show their entitlement thereto. House, supra.

Despite this, much of the trial was cluttered with argument and repetition of the questions involving liability. On appeal, Cassidy continues to assert his lack of liability by means of enumerations of error one and three. Both are without merit, having been foreclosed by the entry of default judgment against him. Also, as to accord and satisfaction, Cassidy sought to introduce the issue for the first time on the day trial began. Accord and satisfaction is an affirmative defense which must be set forth in pleading to a preceding pleading. OCGA § 9-11-8 (c). Blanchard v. Ga. S. & F. R. Co., 117 Ga. App. 858 (1) (162 SE2d 442) (1968). Where not pleaded it is waived. Leslie v. Solomon, 141 Ga. App. 673, 674 (1) (234 SE2d 104) (1977). See Dromedary v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103 (264 SE2d 571) (1980). Cassidy is particularly without remedy because even if he had timely raised settlement, the issue would have disappeared when all his pleadings were stricken.

As to enumeration of error two, it addresses three separate grounds, not one as is specified by the Appellate Practice Act. See MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1a) (275 SE2d 142) (1980). Considering it as though properly divided, see OCGA § 5-6-30, we examine the merits of the contentions therein.

No issue is raised as to whether plaintiffs established the amount of damages but only whether as a matter of law damages were permitted. For the reason stated above, the first two contentions carry no weight, insofar as they attempt to reargue liability.

OCGA § 9-15-14 pertains to recovery of litigation costs and attorney fees. It makes no provision for recovery of damages for injury to the peace, happiness or feelings of plaintiff. Yost recognizes that other damages may be recovered for abusive litigation, including mental distress. Id. at 95 (10). Of course, there must be wilfulness, or wanton and reckless disregard of consequences which is the equivalent of wilfulness. Because the allegations of wilful actions on the part of Cassidy are established by the default, the trial court was authorized to impose damages under OCGA § 51-12-6 for injuries to the peace, happiness or feelings of Wilson and Marcus. Whether the amount is “correct” or properly supported is not at issue under the enumerations of error advanced by Cassidy.

Decided May 31, 1990

Rehearing denied June 18, 1990 — Cert, applied for.

Thomas V. Cassidy, pro se.

Theodore L. Marcus, for appellees.

The question of punitive damages is promptly disposed of by the second sentence of that same code section, OCGA § 51-12-6, which expressly forbids them under §§ 51-12-5 or 51-12-5.1. This was also true before the 1987 amendment adding that sentence. Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (B) (216 SE2d 776) (1975); Baldwin v. Davis, 188 Ga. 587, 592 (8) (4 SE2d 458) (1939). The same principle applies to a Yost claim, supra at 95 (10), fn. 3. Vogtle v. Coleman, 259 Ga. 115, 116 (1) (376 SE2d 861) (1989). Whether or not they are supported by competent evidence is irrelevant.

The judgment is affirmed on condition that the punitive damages awarded to Marcus and Wilson be written off; otherwise reversed, for a new trial as to damages only.

Judgment affirmed on condition.

Deen, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A90A0230, A90A0231.
    ARROW EXTERMINATORS, INC. v. RADTKE et al.; and vice versa.
    (395 SE2d 271)
   Deen, Presiding Judge.

These appeals arise from an action brought by the Radtkes (appellees in Case No. A90A0230 and cross-appellants' in Case No. A90A0231) against Arrow (appellants in Case No. A90A0230 and appellees in Case No. A90A0231) alleging damage to realty, personalty, and the health of the family members, as a result of Arrow’s alleged misapplication of toxic chemicals to the Radtkes’ residence. The Radtkes produced evidence that at least a portion of the insecticidal chemicals used to treat their new house was applied in a manner not in conformity with applicable guidelines and standards; that the family had been troubled by a strong odor which, contrary to Arrow’s reassurances, had persisted for months; that members of the family had exhibited a number of physical symptoms not inconsistent with exposure to such chemicals as those applied by Arrow to various areas of the house; and that the realtor whom they had asked to list the house for sale had informed them that, after studying the scientific reports on the house and consulting with other professionals, she must decline to accept the listing because the property was unmarketable.

Decided May 29, 1990

Rehearing denied June 19, 1990.

Greene, Buckley, DeRieux & Jones, John D. Jones, Francis C. Schenck, for appellant.

Arrow alleged that the Radtkes’ allegations were groundless or exaggerated and were not supported by the medical and other scientific evidence adduced. The trial of the case lasted nine days. At the close of the Radtkes’ evidence Arrow moved for a directed verdict on all counts. The court directed verdicts for Arrow on the fraud and trespass counts but denied the motion on the issues of breach of contract, breach of warranty, negligence, and punitive damages. The jury returned a verdict as follows: for Mrs. Radtke, $185,000 in compensatory damages and $100,000 in exemplary damages; for Mr. Radtke, $50,000 in compensatory damages and $10,000 in exemplary damages; and for their daughter, Heather, $35,000 in compensatory damages and $20,000 in exemplary damages. The court also found for the Radtkes on a claim by an individual not a party to these cross-appeals. Arrow enumerates as error (1) the trial court’s denial of Arrow’s motion for mistrial after the testimony of one of the Radtkes’ scientific witnesses; (2) the trial court’s refusal to require plaintiffs’ counsel to produce certain documents allegedly requested in a motion to produce; (3), (6), (10) the denial of certain motions in limine; (4), (5), (6), (7) the denial of Arrow’s motions for directed verdict on several grounds; (8) the court’s permitting a certain plaintiffs’ witness to testify over objection; (9) the denial of Arrow’s motion to bifurcate; and (11) the trial court’s permitting Mrs. Radtke to offer an opinion of the house’s value on the day the family moved out. In their cross-appeal the Radtkes filed three enumerations for the purpose of preserving them in case a new trial were to be ordered. Held:

1. We have reviewed the pertinent sections of the record and transcript and find no error in the trial court’s rulings on the motions for bifurcation, for directed verdicts, and for mistrial. Likewise, we find no reversible error inherent in the trial court’s evidentiary rulings, particularly those (such as the ruling objected to in Arrow’s eleventh enumeration) where other evidence to the same effect had previously been admitted or as to which the parties had stipulated. We find no merit in any of appellant’s enumerations and therefore affirm the judgment in Case No. A90A0230.

2. Our determination in Division 1, supra, renders moot the cross-appellants’ enumerations in Case No. A90A0231. Therefore, the appeal from the trial court in Case No. A90A0231 is dismissed.

Judgment affirmed in Case No. A90A0230. Appeal dismissed in Case No. A90A0231.

Pope and Beasley, JJ., concur.

Kilpatrick & Cody, Robert E. Shields, Alan R. Perry, Jr., Bivens & Hoffman, L. Brown Bivens, for appellees.


text:
    A90A0286.
    RAMIREZ v. THE STATE.
    (395 SE2d 315)
   Beasley, Judge.

The issue is whether a defendant who filed a demand for trial pursuant to OCGA § 17-7-170 and was timely tried, but whose conviction was reversed on appeal, must be retried in the same number of days as remained for the original trial under the demand or be discharged and acquitted for lack of prosecution.

Ramirez and a co-defendant were indicted for trafficking in cocaine under former OCGA § 16-13-31 (a) on February 2, 1988, during the January 1988 term of the Superior Court of Gwinnett County. The circuit has six regular terms of court: January, March, May, July, September and November. Ramirez filed a statutory demand for trial during the January Term, when jurors were impaneled and qualified. Ramirez and his co-defendant were tried during the succeeding regular March Term and convicted on March 16, with forty-six days remaining in the term. Ramirez successfully appealed his conviction. See Ramirez v. State, 190 Ga. App. 889 (380 SE2d 323) (1989). The remittitur was filed in the trial court on May 19, 1989, and entered as the judgment of the trial court on June 5. The State called the case for retrial on August 28. Ramirez filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b). The trial court denied the motion.

Ramirez contends that he had to be retried within forty-six days of the judgment on the remittitur which in effect called for a new trial.

1. Preliminarily, we find that the notice of appeal was filed, prematurely, after appellant’s motion was orally denied but before the written order of denial was signed and filed with the clerk. OCGA § 5-6-31. The merits are reached nevertheless, in accordance with Sharp v. State, 183 Ga. App. 641 (1) (360 SE2d 50) (1987) and the cases cited therein.

2. Defendant’s construction of OCGA § 17-7-170 as applied to his case does not square with the statutory language, the relevant case law, or the reality of trial and appellate processes.

The statute “was enacted to implement the [state] constitutional provision for a speedy trial... [so that] the accused might [not] suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely. . . .” Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985). Of necessity, it affords the State a reasonable time frame in which to prepare and try its case against the accused. This would be no less true in a retrial after reversal on appeal. The State is able and obligated to try the case only during periods when the court has jurisdiction of it.

Under appellant’s construction, the State could not responsibly rely on the time, period provided by the statute to originally try a defendant. Pragmatically it would have to ready its case for trial in a truncated period, to conserve a cushion of time in case of the necessity of retrial following a reversal on appeal. This would contravene the express terms of the statute and be an unworkable criminal trial process. Subsequent convictions and subsequent successful appeals would preclude retrial altogether as timely impossible. Of utmost importance, retrial only within the tolled remaining days, be it one, ten, or forty-six, would interrupt the calendar already set and disrupt the preparations of others who were entitled to a speedy trial. Having sought a new trial, defendant must await his turn. There is no basis for pegging the time as a carryover from the date of the trial which was declared defective.

A Supreme Court decision has provided guidance. Dennis v. Grimes, 216 Ga. 671 (118 SE2d 923) (1961), is a habeas corpus case in which there was a demand for trial under Code § 27-1901, the predecessor of OCGA § 17-7-170, reversal of conviction on appeal, and a new trial. The Court held that a defendant was not required to again demand a trial and that absolute discharge and acquittal would result “¿/ two regular terms go by in which juries are impaneled and qualified, and [defendant] is not tried.” Id. at 672 (Emphasis supplied.) The ultimate judgment in relation to the time frame in Dennis shows that the Court contemplated that the demand would run again in its entirety for retrial.

Defendant’s reliance on Geiger v. State, 25 Ga. 667 (1858) and Brown v. State, 85 Ga. 713 (11 SE 831) (1889), is misplaced. The former determined that the trial ending in mistrial did not constitute a trial under OCGA § 17-7-170 so that another trial was needed within the initial statutory period. The latter held that the benefit of a demand for trial was not lost by reason of the entry of a nolle prosequi without defendant’s consent.

The trial court correctly rejected appellant’s interpretation of his demand for trial rights and thus properly refused to discharge and acquit him.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided June 6, 1990

Rehearing denied June 19, 1990 — Cert, applied for.

Michael M. White, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A90A0471.
    CLARKCRAFT, INC. v. DUNAWAY et al.
    (395 SE2d 241)
   McMurray, Presiding Judge.

This case involves a contract for the purchase and sale of real property. Under the contract, Clarkcraft, Inc. (“Clarkcraft”) agreed to purchase a tract of land divided into eight residential lots from Mt. Paran Development, Inc., d/b/a Mt. Paran Group (“Mt. Paran”). Pursuant to the contract, purchaser Clarkcraft paid earnest money of $25,000 to plaintiff Dunaway, as escrow agent. After the sale was not consummated, Clarkcraft unsuccessfully sought Mt. Paran’s acquiescence to the return of the earnest money from the escrow agent.

Plaintiff Dunaway filed a complaint for interpleader, naming Clarkcraft and Mt. Paran as defendants and tendering the earnest money funds for deposit into the registry of the superior court. Clark-craft and Mt. Paran filed their answers and opposing cross-claims, under which each contended that it was entitled to the escrow funds plus additional damages. Subsequently, the funds were deposited into the registry of the superior court and plaintiff was dismissed from the action. Clarkcraft and Mt. Paran filed their opposing motions for partial summary judgment. Clarkcraft appeals the denial of its motion and the grant of summary judgment in favor of Mt. Paran on the issue of liability. Held:

1. The contract provided that Clarkcraft had three days from the execution of the agreement to notify Mt. Paran in writing of any matter in a proposed plat of the eight lots to which Clarkcraft reasonably objected. In the absence of such notice, the plat was deemed to be approved by purchaser. If Mt. Paran received the specified notice, it had three business days to make any necessary revisions to the proposed plat. If Mt. Paran received proper notice of objections to the proposed plat and failed to make necessary revisions within the allowed period of time, Clarkcraft had the option to terminate the agreement and receive a full refund of all earnest money paid the escrow agent.

The affidavit of Phillip Clark, president of Clarkcraft, states that he “notified Seller of my objections to the lot layout of the Proposed Plat by letter dated Monday, May 2, 1988, three business days after the Contract was executed.” The affidavit of Thomas Rybert III, vice president of Mt. Paran, states that the address to which the contract requires any written notices to Mt. Paran be mailed (or hand delivered) is his personal residential address, that he personally handles the mail at his residence, that Mt. Paran never received any written letter or document from Clarkcraft of any kind within three business days of the contract being executed, and that the letter dated May 2, 1988, was not received by Mt. Paran until June 13, 1988, when it was enclosed with a letter from Clarkcraft’s attorneys to Mt. Paran attempting to terminate the contract.

Clarkcraft contends that the superior court erred in granting Mt. Paran’s motion for partial summary judgment because there exists a factual issue concerning whether the specified notice of its objections to the proposed plat was accomplished. However, the affidavit of Clarkcraft’s president was not sufficient to create a presumption of delivery either under the terms of the contract or under genéral principles of law as there is no evidence that, within the allowed period of time, the letter dated May 2, 1988, was deposited in the mail, properly addressed and with sufficient postage prepaid. Edmondson v. Air Service Co., 123 Ga. App. 263 (2) (180 SE2d 589). The evidence negating any satisfaction of the notice requirement for objections concerning the proposed plat was not contradicted. Cambron v. Cogburn, 118 Ga. App. 454, 456 (4) (164 SE2d 350).

2. Clarkcraft contends that the superior court erred in denying its motion for summary judgment because the contract is void due to its vague and inconsistent terms and because performance of the contract is impossible. These contentions are related to the existing dwelling house on the property. The contract provides that “[t]he existing house with all improvements shall remain and is included as a part of the purchase price.” In the proposed plat of the property incorporated in the contract, a lot line crossed the house. .

Mt. Paran’s evidence shows that the contract provision concerning the house was . added in response to the last minute request of Clarkcraft and there was no discussion that leaving the existing house was in any way connected to the proposed plat, but instead that purchaser had expressed an intent to move the house to one of the platted lots. Nonetheless, Clarkcraft is now contending that it was intended that the house remain in its physical location and that the boundaries of the lots be consistent with this intent. Such a reconfiguration of the boundaries of the lots was clearly possible since it was done before the property was subsequently sold to another buyer and within the contemplation of the parties since the contract contained a provision providing for revision of the lot boundaries in response to reasonable objections in that regard raised by Clarkcraft. However, Clarkcraft did not avail itself of the opportunity provided under the contract to object to the proposed lot lines. Therefore, under the contract the proposed plat was deemed to be approved by Clarkcraft. The contract is enforceable and Clarkcraft having refused to close the purchase while Mt. Paran stood ready, willing and able to close the purchase, the superior court did not err in granting partial summary judgment on the issue of liability in favor of Mt. Paran and against Clarkcraft.

Decided May 16, 1990

Rehearing denied June 19, 1990.

Ford & Harrison, F. Carlton King, Jr., for appellant.

Davis, Matthews & Quigley, Ron L. Quigley, James E. Gilson, Jones, Day, Reavis & Pogue, Robert D. Burton, Robert T. Tifverman, for appellees.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs in Division 2 and in the judgment.


text:
    A90A0699, A90A0700.
    A90A0701, A90A0702.
    A90A0703, A90A0704.
    A90A0705.
    DIXON v. THE STATE. RAMSEY v. THE STATE. POWELL v. THE STATE. BRYANT v. THE STATE.
    (395 SE2d 577)
   Beasley, Judge.

These seven appeals involve four defendants: Dixon and Ramsey were convicted of driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (1). Powell was convicted of driving under the influence of alcohol to the extent that it was less safe for him to drive and operating a vehicle with an alcohol concentration of 0.12 grams or more, OCGA § 40-6-391 (a) (1) and (4), and speeding, OCGA § 40-6-181 (b) (4). Bryant was convicted of operating a vehicle with an alcohol concentration of 0.12 grams or more, OCGA § 40-6-391 (a) (4).

Their appeals were combined because of the many similar issues raised in their separate enumerations of error. The common ones generally will be considered first, followed by those urged by only one defendant.

1. In Harbin v. State, 193 Ga. App. 248 (1) (387 SE2d 367) (1989); Walters v. State, 195 Ga. App. 434 (394 SE2d 105) (1990), and Martin v. State, 195 Ga. App. 548 (_ SE2d _) (1990), among others, counsel for defendant was admonished that mere rote recitation of constitutional provisions did not raise constitutional issues. Nevertheless, this empty and useless practice was continued in these appeals and precludes our reaching what may or may not be valid grounds.

2. (a) Dixon, Ramsey and Powell assert error on the denial of their motions to quash the accusations. The reasons assigned for reversal are that the accusations refer to non-existent affidavits and contain language which presupposes their guilt, and that OCGA § 40-6-391 as amended in 1988 charges no crime.

We have previously addressed defendants’ contentions in Walters, supra at (1); Martin, supra at (2); and Stanley v. State, 195 Ga. App. 706 (1) (394 SE2d 785) (1990), and found them to be without merit. See Shults v. State, 195 Ga. App. 525, 526 (1) (394 SE2d 573) (1990); Burks v. State, 195 Ga. App. 516 (1a) (1c), 517 (Id) (394 SE2d 136) (1990); Proo v. State, 192 Ga. App. 169 (384 SE2d 197) (1989); Manley v. State, 187 Ga. App. 773, 774 (2) (371 SE2d 438) (1988).

(b) Powell’s additional ground for sustaining his motion to quash is that counts one and two were in accusation form and count three merely referred to the attached traffic citation, thus imperfect in form and substance. His authority, Harris v. State, 37 Ga. App. 113 (138 SE 922) (1927), does not support his argument. The essential elements of the offenses with which he was charged are set forth with sufficient particularity. OCGA § 17-7-71 (c); Burks, supra at (lc). Nothing forbids the State from utilizing two separate methods to allege different crimes arising from the same conduct in separate counts of an accusation. OCGA §§ 17-7-71 and 40-13-1. See Burks, supra at (1b); State v. Doyal, 184 Ga. App. 126 (361 SE2d 17) (1987).

3. All four defendants enumerate error on the failure of the court to require the State to produce documents pursuant to their motions. The materials sought under OCGA § 24-10-26 were not of the type reasonably expected to be found in the custody of the solicitor preparing the case. In each instance compliance with defendant’s motion was not mandated because the solicitor was not required to obtain the documents sought in order to satisfy the demand. Shults, supra at (2); Walters, supra at (3); Martin, supra at (5); Stanley, supra at (4); Calloway v. State, 191 Ga. App. 383, 384 (2) (381 SE2d 598) (1989).

4. (a) Dixon enumerates as error the evidentiary admission of his refusal to take an intoximeter test. OCGA § 40-6-392 (c) specifically permits it. Shults, supra at (3). Dixon contends that the trial court’s previous rulings in other cases had a “chilling effect” on his ability to question the validity of the tests and that there was failure to hear evidence or argument on the issue.

There is no merit to the “chilling effect” argument which was raised in the brief in Stanley, supra at (3), but not expressly passed upon. Dixon never developed the issue in the lower court. As to the failure to hear argument or evidence, the trial court denied defendant’s summary presentation of the motion and no request for argument or hearing was made. Defendant did seek to call witnesses on his motion to examine and test the intoximeter, but that issue was not enumerated as error. See Stanley, supra at (2); MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1a) (275 SE2d 142) (1980).

(b) The failure to suppress the results of intoximeter tests is enumerated as error by Ramsey and Powell. Both urge the intoximeter was not properly approved by the Division of Forensic Sciences of the GBI. Similar arguments were found wanting in Walters, supra at (4a). See Burks, supra at (2a); Turrentine v. State, 176 Ga. App. 145 (335 SE2d 630) (1985).

Ramsey, like Dixon, failed to invoke his “chilling effect” proposition in the trial court.

(c) Powell’s separate contentions are 1) that the intoximeter test was inadequate, unjust and fundamentally unfair, and 2) that his stop violated the tenets of Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

The first ground goes to the weight, and not the admissibility, of the test results. Burks, supra at (2b). Insofar as it implicates the trial court’s limiting the use of defense witnesses to discredit the intoximeter, this ground will be covered in the following division of the opinion.

As to the second, no violations of Terry appear. Defendant was driving 72 mph in a 55 mph zone. When stopped his speech was slurred, he had an odor of alcohol on his breath and he had problems speaking.

5. Dixon, Powell and Bryant contend the trial court erred by limiting the testimony of their respective expert witnesses. This ground has been rejected by our rulings in Walters, supra at (4b); Martin, supra at (6); and Stanley, supra at (6). See Burks, supra at (4); Kuptz v. State, 179 Ga. App. 150, 152 (9) (345 SE2d 670) (1986). No abuse of discretion was shown.

6. Dixon, Ramsey and Powell assign error on the denial of their pleas in bar predicated on the failure to try them within two terms after demand as required by OCGA § 17-7-170, and the refusal to allow them to immediately appeal.

The trial court found their respective pleas had been withdrawn during the first term at which demands had been made. The record supports this finding. Even if this were not true, defendants made demand during the March Term 1988 and were tried during the following term in May. OCGA § 15-7-40. Ga. L. 1897, pp. 462, 466, § 17; as amended Ga. L. 1978, pp. 3441, 3442, § 1, and Ga. L. 1980, pp. 3048, 3049, § 1; Dover v. Dover, 205 Ga. 241 (2) (53 SE2d 492) (1949).

The pleas in bar having been correctly denied, no harm accrued to defendants from the denial of their direct appeal. Moreover, a frivolous plea does not divest the trial court of jurisdiction. Rielli v. Oliver, 170 Ga. App. 699 (318 SE2d 173) (1984).

7. Dixon sought a mistrial because the trial court characterized the evidence illegally. Although the code section is not cited, we assume defendant contends there was a violation of OCGA § 17-8-57. In response to inquiry by the jury as to the type of alcohol test involved, and after discussion with counsel, the trial court stated, inter alia: “But the State, of course, has designated this breath test as the one that they insist, and as I remember the testimony, he referred to a breath test in the testimony.” Defendant moved for a mistrial based on the court commenting on the evidence as to what had been proved and what had not been proved. The motion was overruled.

The code prohibits an expression or intimation of opinion “as to what has or has not been proved or as to the guilt of the accused.” First, the code section is not violated by the remarks of the trial court when giving reasons for a ruling. Johnson v. State, 246 Ga. 126 (269 SE2d 18) (1980). Second, an expression of opinion as to an uncontested and undisputed fact is not cause for reversal. Abbott v. State, 91 Ga. App. 380 (3) (85 SE2d 615) (1955). The trial court merely explained the basis for its answer to the jury and defendant has never disputed the accuracy of the trial court’s statement. No error appears.

8. (a) Ramsey contends that the trial court should have suppressed the statement he made at the time of his arrest on the ground that Miranda warnings were not given.

The statement was an affirmative response as to whether he had been drinking, asked by a patrolman during a routine roadside inquiry. This does not constitute a custodial setting so as to trigger Miranda. Stanley, supra at (5); Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986); Wilson v. State, 173 Ga. App. 805, 806 (1) (328 SE2d 418) (1985).

(b) Ramsey enumerates as error the trial court’s denial of his motion for a directed verdict.

Construed in favor of the verdict, the evidence was sufficient for a rational trier of fact to determine that defendant was a less safe driver and guilty beyond a reasonable doubt. Lee v. State, 188 Ga. App. 406 (2) (373 SE2d 28) (1988).

9. Powell contends the prosecuting attorney should not have been allowed oral argument because defendant did not argue. The prosecuting attorney announced he would waive opening argument and reserved the right to close. Defense counsel then waived his argument and contended that since the prosecutor had nothing to rebut he could not argue. The trial court disagreed and both sides argued, defense counsel over protest.

In Porter v. State, 6 Ga. App. 770 (65 SE 814) (1909), defendant had the right to open and conclude and chose to make only a partial presentation with the opening. The solicitor did not argue and the trial court denied defendant’s right to conclude. This court reversed. See Cartright v. Clopton, 25 Ga. 85 (1857). Bradham v. State, 243 Ga. 638, 639 (2) (256 SE2d 331) (1979), held that a party with the opening and concluding argument may waive the opening and “make a full presentation regarding the legal and factual facets of his case to the jury following the final argument of the adverse party.” The prosecutor was not confined to mere rebuttal in his concluding argument, and waiver of argument by defendant would not prevent the solicitor from arguing.

10. Bryant asserts three grounds of error not shared with the other defendants.

(a) He contends the accusation was insufficient because it only listed the code section. Martin, supra at (2), held this not to be a barrier.

(b) He contends the trial court improperly questioned the State’s witness, violating OCGA § 17-8-57. The trial court inquired of the State’s witness who operated the intoximeter about inspection and calibration of the machine and the number of tests the operator had performed. Defendant objected on the ground that the court was endeavoring “to make out the State’s case for him.”

“Though a judge is prohibited from expressing or intimating his opinion as to what has or has not been proved, the trial judge does have the right to propound a question or a series of questions to any witness for the purpose of developing fully the truth of the case. The extent to which the examination conducted by the court shall go is a matter within the court’s discretion.” Eubanks v. State, 240 Ga. 544, 546 (2) (242 SE2d 41) (1978). See Wilson v. State, 229 Ga. 224 (2) (190 SE2d 78) (1972). There were no expressions or intimations of opinion regarding the evidence in the questions. They were addressed to relevant issues with a view of assisting the jury to ascertain the truth. Parrish v. State, 182 Ga. App. 247, 249 (4) (355 SE2d 682) (1987).

(c) Bryant contends that a directed verdict was demanded because he was never identified as the culprit and the State’s witness was unfamiliar with the workings of the intoximeter.

These contentions are without merit. 1) Defendant was identified as the driver of the automobile which the deputies stopped. 2) An examiner need not have an expert’s knowledge of the principles governing the functioning of the intoximeter. Burks, supra at (2a); Dotson v. State, 179 Ga. App. 233 (2) (345 SE2d 871) (1986).

Construed in favor of the verdict, a rational trier of fact could have found evidence of defendant’s guilt beyond a reasonable doubt.

Judgments affirmed.

Deen, P. J., and Pope, J., concur.

Decided June 1, 1990

Rehearing denied June 19, 1990 — Cert, applied for.

Virgil L. Brown & Associates, Virgil L. Brown, Lindsey & Jacobs, Tamara Jacobs, Bentley C. Adams, for appellants.

John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.


text:
    A90A0720.
    JOE N. GUY COMPANY, INC. v. VALIANT STEEL & EQUIPMENT, INC.
    (395 SE2d 310)
   Deen, Presiding Judge.

This appeal and the proceeding below to which it appertains is concerned with whether or not there existed a contract between appellant Joe N. Guy Company, Inc. (Guy) and appellee Valiant Steel & Equipment, Inc. (Valiant), for the delivery of certain quantities of steel; and, if the contract existed, what duties it imposed upon the parties and whether or not it was enforceable.

The sequence of events leading to the action below began in November 1984, when the president of M & M Specialties, Inc. (M & M), a steel fabricating company not a party to this appeal, requested that appellee Valiant sell to M & M raw steel which the latter would then fabricate for delivery to appellant Guy for use on six construction projects in which Guy, a general contractor for commercial construction, was engaged. Since M & M owed Valiant more than $300,000 for steel previously purchased, Valiant declined to do further business with M & M on credit. M & M’s president then proposed that Valiant sell the steel directly to Guy, and Valiant’s treasurer agreed to do so provided Guy was agreeable to the proposal and had a good credit report. Valiant’s treasurer then contacted Guy’s vice-president, and they allegedly came to an agreement that M & M would place purchase orders with Valiant on Guy’s behalf, identified to any of the specified six projects, and that Guy would be invoiced for each shipment. The parties agree that this conversation and alleged contract were not memorialized in a letter.

Ten days to two weeks later M & M placed an order with Valiant, and Valiant’s treasurer confirmed the order by telephone with Guy’s vice-president. During this conversation it was allegedly agreed that it would be unnecessary for Valiant to confirm each individual steel order with Guy before making shipment. The invoice reflecting this order and listing the particulars of the order and the terms of the alleged oral contract between Guy and Valiant was mailed to Guy on the same day the first shipment was delivered to M & M. Valiant sent about thirty shipments and corresponding invoices during a three - month period following the first shipment, and Guy paid more than $297,000 without objection. Thereafter, without explanation, Guy ceased paying Valiant, and at the time the action below was filed, there remained owing to Valiant some $259,000 plus interest.

After a series of efforts by Valiant to collect from Guy, during which the latter made no reply, even to the extent of denying liability, Valiant brought an action which resulted in a verdict and judgment for plaintiff. Guy appeals from the judgment, enumerating eleven errors having to do primarily with the general grounds, the denial of certain motions, and alleged errors in jury instructions. Held:

1. In its first enumeration appellant assigns as error the denial of appellant’s motions for directed verdict and for j.n.o.v., alleging that the evidence and reasonable inferences therefrom failed to set forth a prima facie case of the existence of an oral contract. The statutory standard for granting a motion for directed verdict is as follows: “[Tjhere is no conflict in the evidence as to any material issue and the evidence [adduced], with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). The standard for granting judgment notwithstanding the verdict is the same as that for directed verdict. Russell v. State, 155 Ga. App. 555 (271 SE2d 689) (1980). In the instant case the evidence falls short of demanding either a directed verdict or a judgment n.o.v., and the trial court properly affirmed the jury’s finding that the letterhead invoices sent to Guy by Valiant constituted writings in confirmation of the contract. See, e.g., Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897 (328 SE2d 564) (1985); Dalesso v. Reliable-Triple Cee, 167 Ga. App. 372 (306 SE2d 415) (1983); Jem Patents v. Frost, 147 Ga. App. 839 (250 SE2d 547) (1978); Kohlmeyer & Co. v. Bowen, 126 Ga. App. 700 (192 SE2d 400) (1972).

2. Appellant’s second, third, and fourth enumerations cite the general grounds with reference to the trial court’s denial of its motion for j.n.o.v. or, in the alternative, for new trial. Scrutiny of the record before us indicates that the grounds for appellant’s motion were the general grounds, errors pertaining to jury charges, and the validity vel non of the alleged contract between Guy and Valiant — or, as the trial court summarizes them in its order denying the motion — “(1) that under the [Uniform] Commercial Code [OCGA Title 11] an invoice cannot serve as a written confirmation of an oral contract, and (2) that the jury incorrectly charged Defendant with commissions that were being used to reduce the debt of a middleman.”

In reviewing an enumeration of the general grounds the appellate court looks for errors of law and for evidentiary insufficiency; and it is the sufficiency, rather than the weight, of the evidence that the appellate tribunal assesses. Snipes v. Mack, 191 Ga. App. 233 (381 SE2d 318) (1989); accord Willis v. First Nat. Bank of Atlanta, 185 Ga. App. 648 (365 SE2d 458) (1988). In the instant case there was sufficient competent evidence adduced to authorize the jury to find for plaintiff/appellee. Moreover, there was no error of law, for, as the trial court noted in its order, “Defendant’s other grounds for a motion are not a basis for j.n.o.v. or new trial.” OCGA §§ 5-5-22; 5-5-23; 5-5-24; see also OCGA §§ 5-5-25; 9-11-50 (b). We find no error in the trial court’s ruling and no merit in these three enumerations.

Decided June 5, 1990

Rehearing denied June 19, 1990 — Cert, applied for.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Thomas S. Bentley, Edwin A. Tate, for appellant.

Alston & Bird, Steven M. Collins, Bruce J. Landau, Wm. Scott Mayfield, for appellee.

3. Appellant’s fifth, sixth, seventh, eighth, and ninth enumerations allege errors in giving or rejecting jury charges. Our review of the transcript reveals no errors of commission or omission with respect to charges requested or given. These enumerations have no merit.

4. Appellant’s tenth and eleventh enumerations set forth additional assignments of error regarding denial of its motion for new trial. We have reviewed the trial transcript with care and find no error in the jury charge as a whole and find nothing improper or unfair regarding the issue of the existence or validity of the oral contract; likewise, scrutiny of the transcript reveals no lack of evidentiary support for the verdict. The trial court properly charged the law of surety and correctly ruled that the issue of commissions was for the jury. These enumerations are devoid of merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0837.
    HARDEN v. SOUTHEASTERN MEAT COMPANY et al.
    (395 SE2d 273)
   Deen, Presiding Judge.

We granted a discretionary appeal in this workers’ compensation case to determine whether the Superior Court of Fulton County erred in affirming those parts of the award of the State Board of Workers’ Compensation which held that no attorney fees should be assessed against the employer/insurer (appellees here), and that no medical expenses incurred more than one year prior to the filing of appellant’s claim should be paid by the employer/insurer. Just prior to granting the instant appeal, we denied the application of the employer, which sought to appeal those portions of the board’s award holding that the injury claim was viable and was filed within the one-year statute of limitation, and that the employer was not entitled to credit either for the claimant’s salary paid for approximately one month after the injury or for the portion of approved medical expenses paid by the group health insurance carrier.

Harden, a Southeastern Meat Company (Southeastern) employee for approximately thirty years, worked in the firm’s cooler and freezer, where the respective temperatures were between 32 degrees F and -10 degrees F. There was some evidence that he had smoked cigars in the past. After experiencing respiratory problems for approximately one year, Harden was diagnosed in 1981 as having asthma, to which he apparently had a genetic predisposition. In April 1985 the same physician who had diagnosed the asthma wrote a letter to Southeastern stating that he believed the asthma attacks to be related to appellant’s exposure to cold air on the job. (He subsequently stated on deposition, however, that the symptoms were the same whether the asthma attack was triggered by job conditions or by weather changes.) The administrative law judge (ALJ) who heard the case stated in his January 1989 award that the physician’s April 1985 letter constituted notice to Southeastern that Harden’s job duties were aggravating the asthma. According to the record, Southeastern offered Harden a job driving and unloading a refrigerated truck; Harden declined because the working conditions were not materially better with respect to his physical capacity and because his asthma medication made driving unsafe.

Claimant/appellant was hospitalized twice in 1985 for the asthma and again in early 1986, after which time he did not return to work, the physician having stated that the aggravation was permanent. According to the record, Harden filed his claim on December 23, 1986, and employer/insurer filed a notice to controvert on January 5, 1987, which was within twenty-one days of the filing of the claim.

After a hearing the ALJ awarded total disability income benefits retroactive to January 31, 1986. He ruled that attorney fees should not be assessed against employer/insurer because of the existence of “legitimate legal issues” regarding the claim’s compensability (employer/insurer had argued that an occupational disease was involved) and ruled also that only those medical expenses incurred subsequent to December 23, 1985 (one year prior to the filing of the claim), were entitled to be paid. The full board affirmed the ALJ’s award in May 1989, and the Fulton Superior Court affirmed the Board July 27, 1989. This court then denied appellees’ application and granted that of Harden. Held:

Decided May 29, 1990

Rehearing denied June 19, 1990.

Neely & Player, Andrew J. Hamilton, Joseph D. Perotta, for appellant.

Saveli & Williams, Michael K. Jablonski, Robert E. Mulholland, Richard G. Farnsworth, for appellees.

1. The standard of review of decision by the Board of Workers’ Compensation is the “any evidence” standard, and “a finding of fact by . . . the State Board . . . , when supported by any evidence, is conclusive and binding upon the [superior] court.” Skelton v. Dept. of Transp., 191 Ga. App. 835, 836 (383 SE2d 162) (1989). According to the record before us, the court, while not reciting the “any evidence” standard verbatim, reviewed the evidence adduced before the Board and noted that “[t]he question of reasonable grounds is an issue of fact for the Board’s determination.” Thus it appears that the court applied the proper standard, and that the first enumeration is therefore without merit.

2. Although OCGA § 34-9-82 does not expressly mandate refusal to pay medical expenses incurred more than one year before the filing of the claim, neither does it forbid such refusal. Inasmuch as the statute requires that a workers’ compensation claim be filed within one year of the accident or injury, however, it would follow logically that only those medical expenses incurred within that one-year period (or, depending on the date of the filing, for a shorter period, beginning with the date of the injury and extending to the date of the filing of the claim) should by implication be compensable under workers’ compensation law. Because in the instant case appellant filed his claim on December 23, 1986, or approximately eleven months after his last work day (January 31, 1986, on which date he was for the third time hospitalized for treatment of his condition), it was reasonable for the ALJ and the full board to set December 23, 1985, as the cut-off date for medical expenses associated with the condition which gave rise to the claim. Again looking to the standard cited in Division 1, supra, we find no error in the court’s affirmance of the board’s award. The second enumeration is also without merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Pope, Judge.

text:
    A90A0633.
    HICKS v. THE STATE.
    (395 SE2d 249)
   Pope, Judge.

Defendant Kenneth Hicks was convicted of multiple counts of child molestation, aggravated sodomy and aggravated child molestation and appeals.

1. Defendant first argues the evidence was insufficient to sustain the convictions. “[The appellate] court does not weigh the evidence on appeal or resolve conflicts in trial testimony. Rather it is the function of [the appellate] court to examine the evidence in the light most favorable to the verdict and to determine whether any rational trier of fact could have found the [defendant] guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Doing so, we find the standard of Jackson v. Virginia has been met in this case.” Booker v. State, 257 Ga. 37, 38 (354 SE2d 425) (1987). See also Adams v. State, 255 Ga. 356 (1) (338 SE2d 860) (1986).

2. Defendant next argues the trial court erred in denying his motions for mistrial brought in response to the testimony of two witnesses which, according to defendant, impermissibly introduced his character into evidence. The twelve-year-old victim testified she did not report the numerous incidences of sexual assault and fondling by defendant, her former stepfather, during the time she and her mother lived with him because he threatened her with bodily harm if she reported the matter. The record shows the prosecuting attorney asked the victim why she did not tell anyone of the abuse after defendant no longer lived with her. The victim answered, “Because I was scared of him. I’ve always been scared of him because I’ve seen him hit my mother and he’s been — my grandfather has had him sent off for drug and alcohol abuse.” The trial court denied defendant’s motion for mistrial on the ground that the reference to his treatment for drug abuse impermissibly introduced his character into evidence. Instead, the trial court gave curative instructions to the jury directing them to disregard anything concerning what the victim’s grandfather had done and instructing the jury “it would be highly improper” for them to consider that portion of the testimony in this case. Later in the trial the clinical psychologist who examined the victim testified that the victim “referred to [defendant’s] alcohol use and drug use, saying that she really liked him better on pot, he was happier on pot.” The comment was voluntarily injected into a long narrative response by the psychologist to a question posed by the prosecuting attorney concerning what he had learned from his investigation of the case. Again, the trial court denied defendant’s motion for mistrial but gave extensive curative instructions directing the jury to disregard the comments concerning the use of alcohol and other substances by the defendant. The trial court instructed the jury it would be improper for them to use that testimony in their deliberations or to draw any type of inference from it.

Decided June 19, 1990.

Carl A. Johnston, for appellant.

W. Fletcher Sams, District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Where a witness voluntarily injects into the trial improper and prejudicial matters, whether a mistrial must be granted or whether the effect can be corrected by instructions to the jury is a matter within the discretion of the trial court. Crawford V. State, 256 Ga. 585 (2) (351 SE2d 199) (1987). “The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact. . . .” Id. at 587. In this case we conclude the curative instructions were sufficient to prevent the testimony from having a prejudicial impact and, therefore, the trial court did not err in denying defendant’s motions for mistrial. Moreover, in both instances defendant waived his right to argue on appeal that the curative instructions given by the trial court were insufficient by failing to renew his motion for mistrial after the instructions were given. See Callahan v. State, 179 Ga. App. 556 (5) (347 SE2d 269) (1986); Delaney v. State, 154 Ga. App. 772 (1) (270 SE2d 48) (1980).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs in judgment only in Division 2.


author: Sognier, Judge. Carley, Chief Judge,

text:
    A90A0708.
    WHEAT v. FIRST UNION NATIONAL BANK.
    (395 SE2d 351)
   Sognier, Judge.

First Union National Bank (the bank) brought suit against Patricia Wheat on a promissory note. Wheat answered and counterclaimed for abusive litigation, later amending her counterclaim to seek attorney fees and expenses of litigation under OCGA § 13-6-11. The bank dismissed the main claim, and the trial court awarded summary judgment to the bank on Wheat’s counterclaim for abusive litigation, but awarded $1,500 attorney fees to Wheat. This appeal ensued.

The record reveals that in 1981, appellant and her then husband executed a promissory note to appellee’s predecessor in interest, the Bank of Dalton. After appellant and her husband divorced, the Bank of Dalton brought suit against both makers of the note and obtained judgment in May 1983. In 1987, appellant reached an accord and satisfaction with the Bank of Dalton, and executed a settlement agreement whereby the Bank of Dalton released appellant from any further obligation and cancelled the judgment against her in return for payment by appellant of a sum certain. Documents relating to the prior litigation, as well as the settlement and release of appellant, were in the file of George Williams, an employee of appellee. After reviewing appellant’s file, Williams directed appellee’s attorneys to file this suit against appellant upon the same promissory note which was the subject of the prior litigation and the settlement and release. After receiving appellant’s answer, and prior to moving for summary judgment, appellee dismissed its complaint against appellant.

1. Appellee’s motion to dismiss the appeal is denied.

2. Appellant contends the trial court erred by granting summary judgment in favor of appellee on her claim for abusive litigation, because genuine issues of material fact exist regarding whether Williams acted wilfully or in reckless disregard of the information he had in his possession, thus entitling appellant to damages for mental distress. We do not agree.

While it is true that appellee’s complaint lacked substantial justification, and “any party who shall bring or defend an action, or any part thereof, that lacks substantial justification . . . shall be liable in tort to an opposing party who suffers damage thereby,” Yost v. Torok, 256 Ga. 92, 96 (13) (344 SE2d 414) (1986), appellant did not allege that she was physically injured by appellee’s actions, and prayed only for damages under OCGA § 51-12-6. Where no physical injury is present, such damages are available only for wilful torts. Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984). In support of its motion for summary judgment, appellee proffered the affidavit of Williams, in which he averred that he “inadvertently, unintentionally, and without any willfulness whatsoever, mistakenly failed to see the documentation in our file that indicated that [appellant] had previously been sued by [appellee’s] predecessor.” This evidence pierced the allegation in appellant’s counterclaim that appellee had acted wilfully, and was unrebutted by appellant in her response to the motion.

“ ‘When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made, but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. (Cits.) The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time, the opposing party must come forward with rebuttal evidence or suffer judgment against him. (Cits.)’ [Cit.]” Jenkins v. Roper Corp., 185 Ga. App. 219 (363 SE2d 625) (1987). Because appellant offered no rebuttal evidence, we conclude the trial court correctly entered summary judgment for appellee. See generally Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (2) (380 SE2d 61) (1989).

3. As part of her argument that summary judgment in favor of appellee was improper, appellant contends that if summary judgment in favor of appellee on the claim for abusive litigation was correct, the trial court’s award of attorney fees in her favor was without basis because attorney fees are not awardable pursuant to OCGA § 13-6-11 unless other damages are recoverable. Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136) (1988). As the trial court’s award of attorney fees did not adversely affect appellant, however, she cannot complain of this ruling. Martin v. Hendon, 224 Ga. 221, 222-223 (3) (160 SE2d 893) (1968).

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Carley, C. J., Deen, P. J., and Beasley, J., dissent.

Carley, Chief Judge,

dissenting..

Because I believe that there was a jury issue as to defendant’s counterclaim for damages based upon the rationale of Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), I cannot agree with the majority’s affirmance of the grant of summary judgment on this issue and must, respectfully, dissent. The majority relies upon the affidavit of appellee’s employee Williams which, in conclusory terms, states that said employee “inadvertently, unintentionally, and without any willfulness whatsoever, mistakenly failed to see the documentation in our file” that clearly showed that the present suit was without any substantial justification whatsoever. It is undisputed that in the very file reviewed by Mr. Williams were all documents necessary to show the appellant’s previous payment and satisfaction of any obligation owed by her to the bank.

The majority mistakenly states that this conclusory affidavit pierces the allegations of appellant that appellee had acted “willfully.” I disagree. As was held by the Supreme Court in the very case cited by the majority, “reckless and wanton disregard of consequences may evince an intention to inflict injury. [Cit.] ‘(I)t is equally well established that . . . for a reckless disregard of the rights of others, equivalent to an intentional tort by the [plaintiff], the injured party may recover for the mental pain and anguish suffered therefrom.’ [Cit.]” Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984). In this case, it is my opinion that a jury could clearly find that a conscious disregard of the rights of appellant was manifested by the conduct of appellee’s employee in referring the matter for litigation, notwithstanding the admitted presence of documentation revealing satisfaction of the debt which was the subject of the litigation. Accordingly I believe that the trial court erroneously granted summary judgment in favor of appellee, and I respectfully dissent.

Decided June 19, 1990.

McCamy, Phillips, Tuggle, Rollins & Fordham, Stephen A. Williams, Frederick L. Hooper III, for appellant.

James E. Toland, Jr., for appellee.

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


text:
    A90A0930.
    STEPHENS v. THE STATE.
    (395 SE2d 353)
   Deen, Presiding Judge.

Armor Stephens, Jr., was convicted of the sale of cocaine. On appeal, he contends that the trial court erred in denying his motion for a continuance based on adverse publicity, in overruling his motion for a change of venue, and in failing to give two of his requests to charge.

1. One week prior to the trial of Stephens’ case, a person accused of a similar offense was acquitted. The State’s principal witness in that case was an undercover GBI agent. This same witness was scheduled to appear in Stephens’ case. The not-guilty verdict apparently enraged Sheriff Lamar Echols, and he wrote a letter to the editor of the local newspaper, which was published a few days prior to appellant’s trial. Echols stated: “This verdict was the biggest miscarriage of justice that I have ever witnessed in the courthouse. The jury came closer to convicting the undercover G.B.I. agent than they did the defendant. This verdict was a slap in the face to law enforcement officials in McIntosh County. Maybe we can get a better jury next time.”

The grant of a continuance or motion for change of venue based upon alleged pre-trial publicity rests within the sound'discretion of the trial court and will not be reversed on appeal absent a showing of abuse. Kesler v. State, 249 Ga. 462 (291 SE2d 497) (1982); Potts v. State, 241 Ga. 67, 75 (243 SE2d 510) (1978); Raines v. State, 186 Ga. App. 239, 240 (366 SE2d 841) (1988).

Prior to ruling on the motions, the trial court indicated that it would need to hear the prospective jurors’ response to questions about the sheriff’s letter to the editor. The veniremen, Gale, George, and Hutchison, responded affirmatively when asked if anyone had read the sheriff’s letter in the newspaper. All three stated that it would not influence them in deciding the case. None of them, however, was selected as a juror. We find no abuse of the trial court’s discretion in denying appellant’s motions.

Decided June 19, 1990.

Neil L. Heimanson, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

2. The failure of the trial court to charge in the exact language requested is not reversible error where the charge given substantially covered the same legal principles. Caldwell v. State, 167 Ga. App. 692, 695 (307 SE2d 511) (1965); Keely v. State, 241 Ga. 190, 191 (243 SE2d 857) (1978). The trial court charged on the credibility of the witnesses and the weight to be given their testimony, on the impeachment of witnesses, and the purposes for which a prior contradictory statement could be considered. As the jury charge as given covered substantially the same issues as the requested charges, we find no error.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1191.
    In the Interest of W. N. N., a child.
    (395 SE2d 354)
   Deen, Presiding Judge.

During the early morning hours of August 5, 1989, the victim looked through his kitchen window, saw a light on in his automobile, noticed that the passenger door was open, and that two people were going through his car. When he went to the front door to investigate, the thieves noticed him. One ran to a nearby car and the other ran across the apartment complex. The victim wrote down the tag number of the automobile as it sped away, and later reported it and the make of the automobile (an Oldsmobile) to an investigating police officer. He also reported $100 as missing from the glove compartment. The tag number was traced to a 1982 Oldsmobile belonging to W. N. N.’s father and determined to be regularly driven by the juvenile. When the officer first called the boy’s residence his mother answered and stated that her son had been out the entire night in question, as he was staying with one of his friends. The father later brought the boy in for questioning, but became very upset and terminated the interview. At trial, both parents and W. N. N. testified that he came home before 11:00 p.m. on the night in question and did not leave again. The mother claimed that she thought the officer was asking about a different night when she told him that the child had not come home. The court found that W. N. N. had committed a delinquent act, placed him on probation, suspended his driver’s permit, and required him to attend LODAC. This appeal follows.

Decided June 19, 1990.

Tillman, McTier, Coleman & Talley, William E. Holland, for appellant.

H. Lamar Cole, District Attorney, for appellee.

1. The evidence, although conflicting, was sufficient to support the trial court’s decision. The credibility of the witnesses is solely a question for the trier of fact. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). The evidence showed that appellant had access to an Oldsmobile automobile which matched the tag number of the vehicle that the victim reported as leaving the crime scene with one of the persons who had fled from his automobile. The trial court was authorized by the evidence to find W. N. N. to be in a state of delinquency.

2. The trial court did not use a previous traffic offense in making its findings of fact. The court observed that the juvenile had a prior offense, but went on to review the evidence, the credibility of the witnesses, and the interests of the boy and his parents in the outcome of the case before it made its ruling. There is no merit in this enumeration.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1200.
    PORTER v. STATE OF GEORGIA.
    (395 SE2d 360)
   Deen, Presiding Judge.

A 1977 Oldsmobile Cutlass automobile and $1,355 in cash were seized from appellant pursuant to a violation of the Georgia Controlled Substances Act. The state filed a petition for condemnation of the vehicle and the cash, and it was served on October 5, 1989. An announcement of the condemnation was also published in the Gwinnett Daily News within 30 days from the filing of the petition. Appellant did not answer the petition until 48 days after its filing and 22 days after its service. The trial court held a hearing, found appellant’s answer was not timely filed, and granted the state’s petition for condemnation. Porter appeals.

1. OCGA § 16-13-49 (c) does not violate the Equal Protection and Due Process Clauses of the United States Constitution. Tant v. State, 247 Ga. 264, 265 (275 SE2d 312) (1981).

2. As appellant failed to raise the defense of failure to achieve personal service in his answer or any subsequent motion, he waived his right to raise the issue of jurisdiction. OCGA § 9-11-12 (h).

Decided June 19, 1990.

James Booker, for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Debra K. Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1252.
    BRYAN v. WILLIAMSON.
    (395 SE2d 355)
   Deen, Presiding Judge.

Appellant Bryan owned a restaurant and leased an ice machine from appellee Williamson. The lease contract was entered into on July 3, 1987, and, after ceasing to make the specified payments early in the term of the lease, Ms. Bryan was served with notice of default. In May of 1988 she sold the restaurant to Frank and Catherine Fair-cloth, not parties to the instant appeal. Williamson filed a complaint against Bryan and the Faircloths for $5,749.89 allegedly owing on the lease, plus $574.99 in attorney fees; he also sought post-judgment interest, costs, and other relief. The Faircloths filed a cross-claim against Ms. Bryan, alleging that she had agreed to “indemnify and hold [them] harmless . . . from . . . liabilities, claims or indebtedness . . . .” Williamson “counterclaimed” against the Faircloths, alleging a frivolous and groundless answer.

All parties subsequently dismissed their cross-claims and counterclaims, and the court directed a verdict in favor of the Faircloths. The court also directed a partial verdict against Ms. Bryan for $110 per month for ten months minus any payments made, representing damages prior to the sale of the business; the jury awarded Williamson a total of $5,780 against Ms. Bryan.

Ms. Bryan moved unsuccessfully for a new trial on the general grounds, and, on Williamson’s motion, was required to post a supersedeas bond. On appeal she enumerates as error (1) the partial direction of a verdict regarding damages; (2), (4) two allegedly omitted or incorrect instructions on calculating damages; (3) the judge going to the door of the jury room to recharge the jury on damages rather than ordering the jurors brought back to the courtroom; (5) the weight of the evidence; and (6) an allegedly unauthorized verdict in excess of the amount pled in the complaint. Held:

1. Inasmuch as appellant was unable to produce any competent evidence — a cancelled check, a receipt, or other documentation — that she had made certain payments on the. lease of the ice machine, the court was authorized to direct a verdict on this issue. OCGA § 9-11-50. This enumeration is without merit.

Decided June 19, 1990.

E. Louis Adams, for appellant.

Michael C. Hall, for appellee.

2. Appellant’s second and fourth enumerations are without merit inasmuch as the appropriate portions of the trial transcript clearly show that the trial court instructed the jury that the measure of damages was the present cash value of future rentals of the machine, less any savings which might accrue to the defendant, and that any payments made by Ms. Bryan were to be set off against the damages figure. In their appellate briefs counsel for both parties agree that this is the standard set forth in Adams v. D & D Leasing Co. of Ga., 191 Ga. App. 121 (381 SE2d 94) (1989), and that it is the proper standard. As for the third enumeration, concerning the judge stepping to the door of the jury room rather than summoning the jurors into his presence to ensure that they had understood the partial directed verdict, the transcript shows that he was accompanied to the door by counsel for all parties, and that no objection was registered to the procedure. Appellant shows no harm ensuing from this slight departure from the procedural norm, and it is elementary that harm as well as error must be shown in order to obtain a reversal of judgment. Kolman, Inc. v. Burns, 191 Ga. App. 758 (382 SE2d 702) (1989). These enumerations have no merit.

3. Appellant alleges that the verdict is against the weight of the evidence. It is well settled that the appellate court assesses only the sufficiency of the evidence; its weight is for the finder of fact. Snipes v. Mack, 191 Ga. App. 233 (381 SE2d 318) (1989). We hold the evidence adduced to have been sufficient and therefore find no merit in the fifth enumeration.

4. The record reveals that the jury awarded plaintiff a total of $5,780, or less than the total sought in the complaint. Since, contrary to appellant’s allegation, $5,749.89 was proven as owing in the lease, and the total awarded, in the face of appellee’s prayer for attorney fees, interest, etc., was only some $30 more than the proven balance on the lease, we find no error in the judgment. This enumeration, also, is devoid of merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1314.
    In the Interest of P. E. M. III, a child.
    (395 SE2d 359)
    Decided June 19, 1990.

      Lipscomb, Johnson & Ashway, David L. Dickinson, for appellant.

      Daniel J. Parker, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.
   Deen, Presiding Judge.

P. E. M.’s maternal grandparents filed a deprivation petition in the Juvenile Court of Hart County seeking a determination that their grandson was deprived under OCGA § 15-11-2 (8). The child’s parents filed responsive pleadings denying that the child was deprived. Prior to the filing of the grandparent’s petition, P. E. M.’s parents were involved in divorce proceedings in South Carolina, and a temporary order awarded custody of the child to his mother. The child and mother came to Georgia and resided with her parents. The parents reconciled, and the divorce action was dismissed. The juvenile court entered an order on February 6, 1990, denying the petition, but ordered further relief, including orders that the child was to reside with the parents only on weekends during the month of March and after that month was to return to the custody of his parents, that the parents attend Parents Anonymous meetings, that the South Carolina Department of Social Services supervise the family, and that the grandparents have certain weekend and vacation visitation privileges. The parents appeal. Held:

OCGA § 15-11-33 (a) requires the court to make certain findings as to whether the child is deprived. “If the court finds that the child is not a deprived child . . ., it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.”

As P. E. M. was not found to be deprived, the juvenile court erred in not dismissing the petition.

Appellee’s motion to dismiss because the judgment was not final is without merit, and it is denied.

Judgment reversed.

Pope and Beasley, JJ., concur.


text:
    A90A1332.
    HAMILTON v. THE STATE.
    (395 SE2d 357)
   Deen, Presiding Judge.

David Hamilton was convicted of six counts of violation of the Georgia Controlled Substances Act (sale of cocaine to an undercover police officer). At trial, he admitted all the sales and raised entrapment as his sole defense. On appeal, Hamilton contends that his motion for a mistrial was improperly denied because the State improperly placed his character in evidence. Held:

Decided June 19, 1990.

L. Clark Landrum, Norman J. Crowe, Jr., for appellant.

The chief of police testified that he gave the undercover officer “a stack of photographs from [police] files to use should he buy drugs to assist him in making identification.” The chief stated that this action was necessary because he feared that the officer’s identity would be revealed if he were seen entering and/or leaving the police station every time he made a drug purchase and wanted to identify the seller. The photographs were described by the undercover officer as “large bundles of police photographs that were on file in the police department of various people in our community.” The officer identified the photograph of the defendant, which he found in the bundles, and the State tendered it into evidence. It was withdrawn after Hamilton moved for a mistrial in the presence of the jury.

At no point were the photographs identified as being those of suspected drug dealers, and the photograph in question was not shown to the jury. Counsel for the defendant did not request the court to give curative instructions to the jury, although he did renew his motion after the court’s ruling. When appellant testified, he admitted the sales and also admitted being a drug addict and an alcoholic, and having made the sales to support his own habit.

None of the cases relied upon by appellant supports his position that the photographs placed his character in issue. In Creamer v. State, 229 Ga. 704 (194 SE2d 73) (1972) and Fleming v. State, 236 Ga. 434 (224 SE2d 15) (1976), a “mug shot” was held not to place the defendant’s character in issue. In Woodard v. State, 234 Ga. 901 (218 SE2d 629) (1975), a statement that a detective decided to pull some pictures of the defendant from police files did not place his character in issue. See also Harris v. State, 191 Ga. App. 399 (381 SE2d 602) (1989), wherein the court relied on Woodard, and held that an officer’s testimony that she obtained a photograph of the defendant from the police department’s identification section did not impermissibly place defendant’s character in issue.

Reference to the photograph in question did not place the defendant’s character in issue, and the court did not err in denying the motion for a mistrial. It was not referred to as a “mug shot” but was described as merely being in a bundle of photographs on file in the department of various members of the community.

Judgment affirmed.

Pope and Beasley, JJ., concur.

David E. Perry, District Attorney, Ronnie Wheeler, Assistant District Attorney, for appellee.