author: f}EASLEY, Chief Judge. Blackburn, Judge,

text:
    A96A0746.
    QUEEN CARPET, INC. v. MOYNIHAN.
    (472 SE2d 489)
   f}EASLEY, Chief Judge.

On November 9, 1993, Moynihan filed a claim for workers’ compensation disability benefits as a result of an accident alleged to have occurred on March 29, 1991.

The employer/self-insurer, Queen Carpet, Inc., asserted as one of its grounds of defense that Moynihan’s claim is barred by the statute of limitation in OCGA § 34-9-82 (a). It provides: “[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if. . . remedial treatment has been furnished by the employer on account of the injury, the claim may be filed within one year after the date of the last remedial treatment furnished by the employer. . . .”

The ALJ concluded that the time had run before the claim was filed because, although medical treatment was furnished to Moynihan, it was furnished through a self-insured group hospitalization policy rather than in the context of the Workers’ Compensation Act. “[PJayments made under the employer’s group medical insurance coverage [are] not workers’ compensation payments which [toll] the statute of limitation. [Cit.]” American Intl. Adjusting Co. v. Davis, 202 Ga. App. 276, 278-279 (1) (b) (414 SE2d 292) (1991). See also Leavell v. Life Ins. Co. of Ga., 165 Ga. App. 770, 773 (302 SE2d 623) (1983).

The Appellate Division of the State Board found that Queen Carpet had made payments for Moynihan’s medical treatment through its workers’ compensation department through November 30, 1992, constituting remedial treatment from which the one-year limitation period ran. Accordingly, the Appellate Division concluded that the claim was not barred by the statute of limitation. Following affirmance by the superior court, we granted Queen Carpet’s application for discretionary appeal.

1. Although the evidence of record supports the Appellate Division’s finding that Queen Carpet made payments for Moynihan’s medical treatment through its workers’ compensation department, it does not follow that the treatment thus paid for was furnished within the one-year limitation period.

At the hearing before the ALJ, Moynihan testified on direct examination that until December 1992 he had been treated by a physician to whom he had been referred by Queen Carpet’s workers’ compensation department. On cross-examination, he acknowledged that medical benefits to which he had referred had been paid through Queen Carpet’s self-insured hospitalization policy and his personal insurance.

His medical billing record indicates that on cross-examination Moynihan was referring to the payment of medical treatment beginning in December 1992. The billing record shows that insurance payments for Moynihan’s medical treatment were made by Queen Carpet through November 30, 1992, but that subsequent payments were made through two other forms of insurance. The billing record also shows that the November 30 payment was for treatment rendered on September 2 and October 14.

The unambiguous words of the statute control. OCGA § 1-3-1 (b). The date of the last remedial treatment is the point from which the timeliness of a claim is measured. Since Moynihan did not file this claim until November 9, 1993, the claim was not filed within one year of the last remedial treatment furnished by the employer. Cf. Paideia School v. Geiger, 192 Ga. App. 723, 724 (1) (386 SE2d 381) (1989) (for statute of limitation purposes, medical treatment is furnished by the employer when the visit to the doctor’s office occurs and must be commenced within the one-year period of limitation). Consequently, the claim is barred as the ALJ concluded.

2. We do not reach Moynihan’s argument that the date of his accident was subsequent to March 29, 1991. The ALJ found that that date was the date of Moynihan’s accident. The Appellate Division accepted this finding. Moynihan has not challenged it by cross-appeal. Compare Buschel v. Kysor/Warren, 213 Ga. App. 91 (444 SE2d 105) (1994); Sewell v. Bill Johnson Motors, 213 Ga. App. 853 (446 SE2d 239) (1994).

Judgment reversed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur only in the judgment reached by the majority in Division 1, and I concur fully in Division 2.

This case involves the statutory construction of OCGA § 34-9-82 (a). Specifically, whether the language of the statute bars recovery when a claim is filed within one year of the employer’s payment for remedial treatment, but the last such treatment took place more than a year prior to the filing of the claim.

The case cited by the majority, see Paideia School v. Geiger, 192 Ga. App. 723 (386 SE2d 381) (1989) is inapposite. In Paideia, the claimant did not seek initial treatment until a year had lapsed from the date of the accident. Id. at 724. Such is not the situation in the present case wherein the date of injury was March 29, 1991, for which remedial treatment began immediately.

OCGA § 1-3-1 (b) provides that “the ordinary signification shall be applied to all words” in statutory interpretation. Applying this principle of statutory construction compels us to look no further than the unambiguous language of the statute which provides that the date of the last remedial treatment be the point from which the timeliness of a claim is measured. In the present case, Moynihan’s claim was filed more than a year after the date of the last remedial treatment furnished by the employer and, therefore, his claim is barred. We are without authority to hold otherwise. See OCGA § 34-9-82 (a).

Decided June 5, 1996

Reconsideration denied June 21, 1996

Clyatt, Clyatt, Wallace & DeVaughn, Robert M. Clyatt, Claudia E. DeVaughn, for appellant.

Walters, Davis, Smith, Meeks & Pittman, W. Edward Meeks, Jr., for appellee.

       OCGA § 34-9-82 (a) provides that “[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.”


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A1593.
    KENNEDY v. THE STATE.
    (472 SE2d 706)
   Smith, Judge.

William Kennedy, Jr. was convicted of burglarizing the home of his mother-in-law and estranged wife. In Kennedy v. State, 215 Ga. App. 232 (450 SE2d 252) (1994), this Court felt constrained to reverse the conviction based upon the Supreme Court’s holding in Mitchell v. State, 263 Ga. 129, 130-131 (3) (429 SE2d 517) (1993), but suggested that Mitchell should be clarified or corrected. 215 Ga. App. at 233-234. Mitchell’s holding on the issue of authority to enter the home of an estranged spouse was disapproved by the Supreme Court of Georgia, and this Court’s decision was reversed and remanded to consider the evidence in light of that holding. State v. Kennedy, 266 Ga. 195 (467 SE2d 493) (1996).

1. Our original judgment in this case is vacated, and the opinion of the Supreme Court is adopted in its place.

2. The remaining question is the sufficiency of the evidence to support Kennedy’s conviction. Construed in favor of the decision of the factfinder, the evidence shows that the police were called to a home on a complaint of attempted rape. Kennedy was separated from his wife, who was living in the home with the victim, her mother and Kennedy’s mother-in-law. The victim, since deceased, was a double amputee and stroke victim with very limited use of her arms. She positively identified Kennedy to the police and to her daughter as the person who entered her bedroom, threw a blanket over her head, and placed his hand on her breast. She believed he was attempting to rape her.

Kennedy gave several statements to the police in which he denied attempting to rape the victim, but stated that he needed money for crack cocaine. He knew the victim had received a disability check recently and believed she kept the money in her brassiere. He entered the house by removing a pane of glass from a window and searched the victim for the money. When he was unable to find it, he pushed the victim off the bed and ran out the back door. “An entry into the separate residence of an estranged spouse, without authority and with the intent to commit a felony or theft therein, constitutes burglary.” State v. Kennedy, supra at 195-196. Accordingly, there was ample evidence authorizing a rational finder of fact to conclude that Kennedy was guilty beyond a reasonable doubt of the offense of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 21, 1996.

Mark B. Beberman, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, David T. Lock, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.


author: Blackburn, Judge.

text:
    A96A0026.
    BECK et al. v. CRISP COUNTY ZONING BOARD OF APPEALS et al.
    (472 SE2d 558)
   Blackburn, Judge.

We granted appellants’ application for discretionary appeal to review whether the Crisp County Zoning Board of Appeals (the Zoning Board) violated Georgia’s Open Meetings Act, OCGA § 50-14-1 et seq., when it granted Harold McCay’s petition for a conditional use permit for an airstrip on his 1,200-acre tract of land. Appellants are those landowners who opposed the conditional use permit granted to McCay. The issue before us is whether the Open Meetings Act is violated when the public hearing portion of a meeting is expressly “adjourned” prior to the Zoning Board’s decision and vote on the matters before the Zoning Board and the published agenda specified which portions of the meeting were to be “public.”

On April 18,1995, the Zoning Board held a duly publicized meeting at which the public hearing on McCay’s variance petition was part of the agenda. The agenda for the meeting was printed on letterhead depicting Crisp County Building Code — Zoning — Planning and contained the following information:

AGENDA

CRISP COUNTY ZONING BOARD OF APPEALS

April 18,1995

1:30 P.M.

1. HEARING

Request from Frankie Johnson for a conditional use permit to locate a retail operation in an RR (Rural Residential) zone district. Please see the Notice of Public Hearing for a full description of the property.

la. Adjourn Public Hearing.

2. HEARING

Request from Harold McCay for a conditional use permit to locate an airport in an RR (Rural Residential) zone district. Property located on McKinney Road. Please see the Notice of Public Hearing for a full description of the property.

2a. Adjourn Public Hearing.

3. DECISION & VOTE - Frankie Johnson

4. DECISION & VOTE - Harold McCay

5. Minutes - March 21, 1995.

6. Old Business.

7. New Business.

8. Adjourn Meeting.

The published agenda specifically limited the public portion of the meeting to the two hearings. The entire meeting was “public” and any agenda which the Zoning Board chose to publish should not have limited the “public” portion to only a part of the meeting. To use the word “public” hearing, for what is really the “evidentiary” hearing portion of the public meeting, when coupled with the other conduct hereinafter described, is clearly a violation of the Open Meetings Act which we are required to liberally construe.

After the hearing on Johnson’s petition, the Zoning Board chairman stated: “This closes the public hearing portion on Mr. Johnson’s request. We will be voting on it a little later and Mr. McKnight will be in touch with you.” Much of the audience vacated the room and the Zoning Board then proceeded with the second public hearing, that being on McCay’s petition, at which several landowners were “emotionally charged.” After the public hearing on McCay’s petition, the Zoning Board chairman stated: “At this time we adjourn the public hearing of this matter, and the decision of the board will be available from Mr. McKnight this afternoon.” The members of the audience left the meeting, the chairman closed the doors and then the Zoning Board completed its meeting, including discussion and voting on both the Johnson and McCay petitions. The McCay petition was granted with restrictions.

Appellants contend that the Zoning Board’s continuation of the meeting without members of the public present violated the Open Meetings Act. The Zoning Board responds that it did not close the meeting to the public but only closed the public hearing portion of the meeting, and that it is not unusual for the public to leave at that stage in the meeting in order to get back to work or home.

The Open Meetings Act “was enacted in the public interest to protect the public — both individuals and the public generally — from ‘closed door’ politics and the potential abuse of individuals and the misuse of power such policies entail. Therefore, the Act must be broadly construed to effect its remedial and protective purposes.” Atlanta Journal v. Hill, 257 Ga. 398, 399 (359 SE2d 913) (1987).

OCGA § 50-14-1 (c) pertinently provides that “[t]he public at all times shall be afforded access to meetings declared open to the public pursuant to subsection (b) of this Code section.” Although the Act itself does not create a specific duty on the part of the subject agencies to inform the public of their right to remain at meetings, broadly construing the Act, we find that where the agencies do specifically undertake to “advise” the public, they must do so in an even-handed, balanced manner which does not mislead the public, whatever their avowed intentions. In the present case, not only did the Zoning Board chairman -unnecessarily announce that the public hearing was adjourned, he was pointedly vague as to the timing of the events which were to follow the “public” hearing. He specifically failed to advise the audience it was entitled to remain for the balance of the agenda, and the doors were closed when the audience left the room. He informed the audience how to obtain the Zoning Board’s decision later in the afternoon, implying that this was how they would learn of the disposition of the cases. The audience had the right to be present for the remainder of the meeting which included the vote and decision on the conditional use permit involved. There was no need or basis to “adjourn” the public hearing. The entire meeting was required to be public. In any event, evidentiary hearings are not “adjourned,” they are “concluded.” The use of the word “adjourn” coupled with other actions, raises a strong inference that it was the intention of the chairman that the public leave the meeting.

Appellees rely on Harms v. Adams, 238 Ga. 186 (232 SE2d 61) (1977), where the Georgia Supreme Court addressed the issue of how “open” is “open” within the meaning of the earlier Sunshine Law. In Harms, John Harms brought suit against the mayor and city council of Union City seeking to have the action taken by them declared void because the meetings violated requirements of the Sunshine Law. Former Code Ann. § 40-3301 provided “that ‘All meetings of any . . . commission ... of any . . . municipal corporation ... at which official actions are to be taken are hereby declared to be public meetings and shall be open to the public at all times.’ Id. at 187. In affirming the grant of Union City’s motion for summary judgment, the Supreme Court determined that “[t]he evidence shows that, because of other activities being conducted in the council meeting room at city hall, the meetings were held in the mayor’s office, a small and crowded room. However, plaintiff’s evidence does not show that the meetings were closed to the public (i.e., that any person was excluded from or denied admission to the meetings)!’ (Emphasis supplied.) Id.

The present case is easily distinguishable, as Harms did not involve misinformation being provided to the public by the officials as does the present case, both in the published agenda and at the meeting. Harms involves no acts from which the intention to deceive the public can be inferred and is inapposite. The intentional, misleading acts of the county effectively excluded appellants from the Zoning Board meeting.

Based on the foregoing, the trial court erred in finding that appellants failed to establish a violation of the Open Meetings Act by a preponderance of the evidence.

OCGA § 50-14-1 (b) provides, in pertinent part, that “[a]ny . . . official action of an agency adopted ... at a meeting which is not open to the public as required by this chapter shall not be binding.” The Zoning Board’s action on Harold McCay’s petition herein involved is void and of no force and effect. Any future action in relation to this matter shall be consistent with this opinion and the laws of the State of Georgia, including OCGA § 50-14-1.

Judgment reversed.

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

Decided June 21, 1996.

Robert M. Margeson III, for appellants.

Roberts, Roberts & Ingram, Stephen J. Ingram, Culpepper, Pfeiffer & Harpe, Guy D. Pfeiffer, for appellees.

       Although the former Sunshine Law did not create notice requirements, see Harms, supra, and OCGA § 50-14-1 (d) requires publication of notice, there is no contention in the present case that the notice requirements were not met.


text:
    A96A0088.
    CARROLL v. PIERCE et al.
    (472 SE2d 560)
   Blackburn, Judge.

Joyce C. Carroll appeals the trial court’s final judgment on the jury’s verdict granting Donald A. Pierce and Sallie J. Pierce an easement to use a driveway crossing her property.

1. Over Carroll’s objection, the trial court instructed the jury that: “[A] purchaser will be charged with notice of an easement where an inspection of the premises would have readily revealed such physical facts as would put him upon inquiry in the exercise of ordinary diligence.”

Carroll erroneously argues that the charge given is an incomplete statement of law because it incorrectly presumes that any time the facts are such that a person in the exercise of ordinary diligence should inquire as to whether an easement exists, then they will be charged with such easement regardless of what inquiry they make and regardless of what they learn as a result thereof.

A party cannot successfully complain about the refusal to give a requested charge unless they satisfy their burden of showing that the refusal was both erroneous and harmful. American Fidelity &c. Co. v. Farmer, 77 Ga. App. 192, 194 (48 SE2d 141) (1948). The charge at issue was an accurate statement of law taken verbatim from a long line of cases defining when a bona fide purchaser of land will be deemed to have notice of an easement. See, e.g., Mathis v. Holcomb, 215 Ga. 488, 490 (111 SE2d 50) (1959). The charge requires the factfinder to determine whether the purchaser, rather than a reasonable person) would have been put on notice by an inspection of the premises. Any other knowledge the purchaser obtained about whether an easement existed is expressly made relevant. Therefore, the fact that a potential purchaser had concluded after inquiry that no easement existed, when an easement did in fact exist, would be considered by the trier of fact in the deliberative process.

Because the charge given does not lead to the improper inferences alleged, Carroll has failed to meet her burden of establishing that the refusal of the court to supplement the charge was erroneous and harmful. Furthermore, the only evidence Carroll offered to establish that she had conducted a diligent inquiry prior to the purchase of the property was her uncorroborated testimony that the previous owner informed her that no easement existed, which evidence the jury considered.

2. In her second enumeration of error, Carroll argues that the trial court erred in failing to give a clarifying instruction.

The trial court initially charged the jury that: “A license becomes an easement and is not revocable, where although originally granted verbally, the licensee has acted pursuant thereto, and in so doing he has incurred such expense that the revocation would be harmful to him.” In response to a jury question, the trial court supplemented its original instruction as follows: “A parol or oral license is primarily revocable at any time if its revocation does no harm to the person to whom it has been granted, but is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land. If the enjoyment of the parol license must be preceded necessarily by the expenditure of money, and the grantee incurred expense in executing it, it becomes an easement for valuable consideration and the licensee a purchaser for value.”

After the trial court gave these instructions, Carroll argued that the trial court should have given a further clarifying instruction as to what type of “harm” would make a parol license irrevocable. Specifically, Carroll argued that the jury might regard the facts that her driveway is the most convenient way to reach the Pierces’ property and that the Pierces had constructed a residence on the lot while expecting to be able to use the driveway as sufficient evidence to transform any existing license to use the driveway into an easement. See Cox v. Zucker, 214 Ga. 44, 51 (102 SE2d 580) (1958) (license does not become irrevocable when a licensee erects improvements upon his own land with the expectation of enjoying the license).

The trial court’s charge tracked the language of OCGA § 44-9-4 defining a parol license and is an accurate statement of the law. Georgia law provides “[wjhere the judge states fully and accurately the law applicable to the issues involved, the mere failure to call the attention of the jury in specific terms to the contentions of the parties as shown by the pleadings, and to explain these contentions to them, will not, unless it is plain that the omission resulted in injury to the losing party, require the granting of a new trial.” (Citation and punctuation omitted.) Baker v. Wilson, 143 Ga. App. 488, 489-490 (238 SE2d 587) (1977). A review of the charge given discloses no harmful error. In fact, the Pierces did not contend that it was improvements to their land that formed the basis of their claim, rather they claimed that the former owner of the property paid for the easement. Under these circumstances, we hold that Carroll failed to satisfy her burden of proving harmful error. See American Fidelity, supra at 195 (assignments of error must be considered in light of the pleadings, evidence, and verdict to determine whether the alleged error was harmless).

Decided June 21, 1996.

Andersen, Davidson & Tate, William M. Ray II, Ann Moceyunas, for appellant.

Weissman, Nowack, Curry & Zaleon, Jeffrey H. Schneider, for appellees.

Judgment affirmed.

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


text:
    A96A0090.
    DIAMOND RUG & CARPET MILLS et al. v. MOSES.
    (472 SE2d 565)
   Blackburn, Judge.

Diamond Rug & Carpet Mills (Diamond) and its workers’ compensation servicing agent, Pruden Risk Management, appeal the lower court’s affirmance of a workers’ compensation award granting Diamond’s former employee, Alvin Moses, temporary total disability benefits.

It is uncontroverted that in November 1992, while working for Diamond, Moses injured his back lifting a heavy object. He sought medical treatment for the injury. Moses’ physician released him to return to work, placing him on light duty restrictions. Moses was subsequently referred to an orthopaedic specialist who also placed him on light duty restrictions. As a result of his injury, Moses missed only one full day of work. He continued his employment, under restrictions, until he was terminated for cause in November 1993 for reasons unrelated to his disability.

Moses subsequently sought temporary total disability benefits from Diamond pursuant to OCGA § 34-9-261 asserting that he was unable to obtain new employment as a result of his job-related injury. Moses testified that he had filed applications or spoken with at least 14 different employers in an effort to secure employment, meeting with no success. Initially, the administrative law judge (ALJ) denied Moses’ claim expressly ruling that Moses had not met the burden of proving his failure to find employment was a direct result of his injury. See Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991) (required claimant to establish that a particular employer refused to give her a job specifically because of her continuing disability). The ALJ’s denial of Moses’ claim was affirmed by the State Board of Workers’ Compensation (board). However, the Superior Court of Gordon County remanded the case to the board with instructions that it consider the deposition of Thomas Eugene Frazier who testified that he would have offered Moses a job in his logging business but was unable to do so because of Moses’ work restrictions.

Upon remand, the board vacated its previous order, and, in its place, issued Moses an award of temporary total disability benefits. Contrary to its prior order, the board held that Moses met his burden of showing his entitlement to benefits and that Aden’s Minit Market was inapplicable as it concerned a “change in condition” where income benefits had previously been paid and was thus distinguishable from the present matter. The board’s award was affirmed by the Gordon County Superior Court. On September 5, 1995, we granted the appellant’s application for discretionary appeal to outline the proper standard for awarding benefits when an employee suffers a minor compensable injury, returns to work and is later terminated for cause. Since this matter was accepted on appeal, the portion of Aden’s Minit Market that the appellants claimed was pertinent to this matter was reversed by the Georgia Supreme Court. See Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995).

As a general principle, under our scheme of workers’ compensation, those individuals who return to work after being injured on the job and are subsequently terminated for reasons unrelated to their injury, are entitled to benefits if that injury prevents them from finding further employment. See Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326, 327 (316 SE2d 535) (1984). However, the employee carries the burden of demonstrating that their inability to find employment was proximately caused by their job-related injury. See Brown v. Ga. Power Co., 181 Ga. App. 500 (352 SE2d 818) (1987). The question raised by this appeal is what standard of proof must an employee meet in order to carry this burden, an issue the Georgia Supreme Court recently addressed in a similar factual situation. Maloney, supra.

“In order to receive workers’ compensation benefits based on a change in condition, a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination. Once evidence is offered in support of the foregoing, the board may in its discretion draw reasonable inferences from that evidence that despite the claimant’s good faith efforts, his or her inability to obtain suitable employment was proximately caused by the continuing disability.” Id. at 828.

The board’s award upon remand reflects that Moses met the burden that the Supreme Court subsequently outlined in Maloney. He convinced the board that his injury was compensable, that he suffered continued impairment as a result of the injury, and that his impaired condition rendered him unable to find suitable work following his termination by Diamond. The evidence and the reasonable inferences drawn therefrom support these findings.

Decided June 21, 1996.

Swift, Currie, McGhee & Hiers, Mark J. Goodman, Thomas E. Best, for appellants.

Bennett & Hamilton, Rodney H. Bennett, for appellee.

While Maloney concerned a change-in-condition hearing, we find it to be applicable to this “all issues” setting. The procedural posture of the two cases is irrelevant as they both address the same dispositive question — “whether [the] employee sustained a loss of earning capacity as a result of a compensable work-related injury.” Id. at 827. In light of this common question, there is no basis for applying a different standard of proof to these two types of cases based only on the severity of the claimants’ injuries.

The trial court did not err in affirming the board’s award.

Judgment affirmed.

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

       At the time he was injured, Moses did not miss seven or more days of work and, accordingly, he was not entitled to receive any income benefits. OCGA § 34-9-220. Thus, unlike the employee in Maloney, Moses’ claim for benefits required a hearing on all issues as opposed to a change-in-condition hearing. Northbrook Property &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988) (a change-in-condition hearing cannot take place where income benefits have not been paid).


text:
    A96A0168.
    ASBERRY v. THE STATE.
    (472 SE2d 562)
   Blackburn, Judge.

Cedric Asberry appeals the trial court’s denial of his motion to dismiss the Georgia Controlled Substances Act charge against him on double jeopardy grounds.

Asberry was indicted for possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. On a separate indictment, returned the same day and arising from the same incident, Asberry and various co-defendants were indicted for violating the Georgia Controlled Substances Act, the facts of which form the basis of the underlying crime necessary to support the possession of a firearm during the commission of a crime charge contained in the first indictment.

On March 6, 1995, the day of the first trial, one of Asberry’s co-defendants announced he was not ready to proceed on the Georgia Controlled Substances Act indictment. The State, apparently attempting to accommodate Asberry’s co-defendant, proceeded to try Asberry’s firearm charges first with the intention of trying the Georgia Controlled Substances Act indictment at a later date. At the time, Asberry pointed out that failing to try both indictments in the same proceeding made no sense because the State would have to prove Asberry violated the Georgia Controlled Substances Act before Asberry could be convicted of possession of a firearm with the intent to commit a crime. Over objection, however, the State proceeded to first try the firearm charges separately, which necessarily included proving that Asberry violated the Georgia Controlled Substances Act. Asberry was found guilty of possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon, and sentenced to serve five years in prison. Asberry appealed only his conviction for violation of OCGA § 16-11-106 (b) (4), possession of a firearm during the commission of a crime, involving possession of any controlled substance as provided in OCGA § 16-13-30. This Court reversed the conviction in Asberry v. State, 220 Ga. App. 40 (467 SE2d 225) (1996).

On April 28, 1995, after his conviction on the firearm charges, Asberry filed a motion in autrefois convict to have the subject Georgia Controlled Substances Act charge dismissed on double jeopardy grounds. The trial court denied Asberry’s motion, and Asberry filed this appeal.

Asberry contends that his trial on the Georgia Controlled Substances Act is barred by OCGA § 16-1-7 (a) which prohibits multiple convictions, and hence successive prosecutions, for more than one crime if one crime is included in the other. His reliance on this section of the statute is misplaced. The Georgia Supreme Court has ruled that it does not violate substantive double jeopardy to convict a person of both possession of a firearm during the commission of a crime and the underlying crime. Wiley v. State, 250 Ga. 343, 351-352 (296 SE2d 714) (1982). The real issue here is whether Asberry’s multiple prosecutions for crimes arising from the same criminal conduct constitutes procedural double jeopardy. See State v. Estevez, 232 Ga. 316, 317-320 (206 SE2d 475) (1974) (explaining the difference between procedural and substantive double jeopardy).

“The first policy underlying the double jeopardy bar is to prevent harassment of the accused by successive prosecutions or the threat of successive prosecutions.” State v. Estevez, supra at 318. Absent a showing that the interests of justice demand a severance of the charges, requiring Asberry to repeatedly defend himself in separate criminal trials from charges arising from the same incident, is a violation of his procedural due process rights.

OCGA § 16-1-7 (b) provides: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section.” OCGA § 16-1-7 (c) provides: “When two or more crimes are charged as required by subsection (b) of this Code section, the court in the interest of justice may order that one or more of such charges be tried separately.”

It is undisputed that the firearm charges and the Georgia Controlled Substances Act charge arose out of the same conduct in the instant case and were known to the proper prosecuting officer at the time of commencing the prosecution. Therefore, we must determine whether the State requested severance and the trial court properly exercised its discretion on March 6, 1995, and ordered that the charges be tried separately in the interest of justice. The burden is on the State to establish that severance under OCGA § 16-1-7 (c) was required in the interest of justice and that the trial court so held at the time of the severance, or that defendant had waived his right to procedural due process. State v. Evans, 192 Ga. App. 216, 219 (384 SE2d 404) (1989). No written motion to sever the charges under OCGA § 16-1-7 (c) was filed and no permission of the court was sought by the prosecutor, who simply declared how he was going to proceed at the time of the first trial on March 6, 1995.

The record reflects the following occurred on March 6, 1995: “[Defense Counsel]: Well, Judge it appears to me if the case in chief is the possession with intent to distribute, that is the crime. If — if he’s found not guilty of that crime, how could he be found guilty of possessing a firearm in the commission of a crime if the jury finds there’s no crime committed. [Prosecutor]: Well, first of all he’s trying to tell me how to try my cases and which one I take first. I’m taking the first indictment, Z66266 [possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon saving for later prosecution of the subject violation of the Georgia Controlled Substances Act indictment], period. The Court: He’s taking two — 66266 first.”

After a discussion and denial of the co-defendant’s motion to sever, the court then stated: “Okay. Now, I believe, [prosecutor], you indicated [the] State’s intent to begin today with the State vs. Cedric Asberry, Indictment Z66266. Is that correct? [Prosecutor]: That’s correct, your honor, sir. The Court: All right. Fine.”

OCGA § 16-1-7 (c) provides that the trial court may order a severance of crimes arising from the same conduct in the interest of justice.

Decided June 21, 1996.

Timothy T. Herring, for appellant.

Lewis R. Slaton, District Attorney, John M. Turner, Jr., Rebecca A. Keel, Assistant District Attorneys, for appellee.

Here, the trial court exercised no discretion on the issue of severance of the charges, but simply acquiesced in the declarations of the prosecutor. It is clear that there was no discussion of the “interest of justice” or a determination by the court that such interest demanded a severance of the charges, which is the only exception permitted to the requirements of OCGA § 16-1-7 (b) for a single prosecution. Thus, there being no proper showing, the severance of the trial of the charges in this case was in violation of OCGA § 16-1-7 (b). This holding makes it unnecessary to address the issue of whether or not the trial court “ordered” the severance as such issue is rendered moot.

The record reflects that the prosecutor without a written motion, insisted upon immediately trying the possession of a firearm during the commission of a crime, Indictment Z66266, and trying the Georgia Controlled Substances Act indictment at a later date.

The record does not reflect any waiver by Asberry of his procedural double jeopardy protections on March 6, 1995, or thereafter. Contrary to the representations of the prosecutor to the second trial judge at the motion hearing on August 10, 1995, the severance of these charges was accomplished by him and not at defendant’s request and the transcript of the March 6, 1995, hearing before the first judge clearly reflects the charges were not severed by defendant’s agreement as was represented to the second judge. The record establishes that Asberry informed the trial court that it was improper to try the possession of a firearm during the commission of a crime charge and the Georgia Controlled Substances Act charge in separate proceedings. The law will not infer the waiver of an important right unless waiver is clear and unmistakable. State v. Mason, 181 Ga. App. 806, 807-808 (353 SE2d 915) (1987). Asberry timely filed his motion in autrefois convict in writing on April 28, 1995, prior to his second trial. Accordingly, the trial court in this case erred in denying Asberry’s motion in autrefois convict and in bolding that the defendant had waived his right to relief.

Judgment reversed.

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


text:
    A96A0413.
    A96A0414.
    STEWART v. LIBERTY MUTUAL INSURANCE COMPANY. JOHNSON v. LIBERTY MUTUAL INSURANCE COMPANY.
    (472 SE2d 704)
   Blackburn, Judge.

We have combined the appeals from the trial court’s grant of summary judgment to the insurer in Case Nos. A96A0413 and A96A0414 where the court held that such insurer could not be named as a party defendant in an action against its insured, a livestock hauler, under the provisions of OCGA § 46-7-58 (e). The court held that the hauler was not a “motor contract carrier” under the exemption from the definition provided by OCGA § 46-1-1 (7) (C) (xi) to haulers of “unmanufactured agricultural products.” The trial court held that “livestock” is an “unmanufactured agricultural product.”

Both actions arose out of a traffic accident which occurred on November 7, 1993. The plaintiffs alleged that a driver of Liberty Mutual’s (Liberty) insured, Brown Packing Company, Inc. (Brown), a livestock hauler, negligently operated his tractor-trailer in an unsafe manner thereby causing the deaths of plaintiffs’ decedents. The subject tractor-trailer was used exclusively for the transportation of livestock purchased at auction, although it was empty at the time of the accident.

It is undisputed that Brown was not a “motor common carrier” as defined by OCGA § 46-7-12 (e) at the time of the incident. At issue is whether Brown was a “motor contract carrier” as defined by OCGA § 46-7-58 (e) and therefore its insurer could be named directly in an action against it, or was Brown exempt from definition as a “motor contract carrier” and thus its insurer could not be so named. There are two relevant statutory exemptions which must be reviewed to resolve this issue.

OCGA § 46-1-1 (7) (C) (x) provides an exemption from the definition of “motor contract carrier” as contained in OCGA § 46-1-1 (7), by those engaged exclusively in the transportation of agricultural products, including livestock, between farm and market “so long as the title remains in the.producer” (Emphasis supplied.) In the present case, Brown transported livestock which it had purchased from the producer at auction. Therefore, the conditional exemption provided specifically for livestock haulers in division (x) was not available to Liberty herein. This fact is undisputed, and Liberty makes no contention that the specific “livestock” exemption provided by division (x) has any application in this case as the condition for exemption has not been met (title remaining in the producer).

Liberty contends however that the second relevant exemption, OCGA § 46-1-1 (7) (C) (xi), that being for “unmanufactured agricultural products,” applies in this case and that Brown is exempt from the definition of “motor contract carrier” and Liberty, as Brown’s insurer, cannot be a named defendant in the tort action against its insured. Liberty contends that if you borrow the definition of “agricultural products” from division (x), then the term “unmanufactured agricultural products” used in division (xi) must include all agricultural products which are not manufactured. Livestock, not being manufactured, must therefore be included in the exemption provided by division (xi), notwithstanding the fact that “livestock” is not specified therein. The trial court erred in accepting this contention and in granting summary judgment to Liberty.

Liberty’s contentions are fatally flawed. Initially, we note the obvious, that had the legislature intended livestock to be included, they would have specifically listed it within the terms of the exemption as they did in division (x). Furthermore, “[a] statute shall be construed so as to give full force and effect to all of its provisions and so as to reconcile any apparent conflicts.” (Punctuation omitted.) Dept. of Transp. v. Bishop, 216 Ga. App. 57, 58 (453 SE2d 478) (1994).

Division (x) contains specific restrictions which must be met by carriers of livestock in order to qualify for the exemption. These restrictions are not contained in the exemption provided in division (xi). If livestock was included within the term “unmanufactured agricultural products” under division (xi), the restrictions of division (x) would be rendered meaningless, which is contrary to the rules of statutory construction. See Bishop, supra at 58.

Our interpretation is also consistent with the legislative history of this division in that, in 1986, the legislature amended division (xi) to substitute the term “unmanufactured agricultural products” for the long list of fruits and vegetables, i.e., “cucumbers, tomatoes, beans, green corn, cabbage, peas, potatoes, cantaloupes, watermelons, okra, and green peppers,” then contained in said division. See Ga. L. 1986, pp. 1284-1286, 1296.

Further, the legislature specially defined “agricultural products” for use in division (x) because it intended its definition in that division to differ from the common usage of those terms. The New Webster Encyclopedic Dictionary 663 (1971) defines the word product as “[a] thing which is produced by nature, as fruit, grain, or vegetables; that which is yielded by the soil; that which is produced by labor or mental application.” This common usage definition does not include livestock within its meaning.

OCGA § 46-1-1 (7) (C) (x) specifically limits the use of the definition contained therein by stating: “[a]s used in this division, the term ‘agricultural products’ includes fruit, livestock, meats, fertilizer, wood, lumber, cotton, and naval stores; household goods and supplies transported to farms for farm purposes; or other usual farm and dairy supplies.” (Emphasis supplied.) The New Webster Encyclopedic Dictionary 256 (1971) defined the word division in applicable part as “a distinct segment or section; a part or distinct portion; a certain section or portion of an organized whole.” Based on this definition, we find that the “division” referred to in OCGA § 46-1-1 (7) (C) (x) is the paragraph separated from the whole by the designation (x).

Decided June 21, 1996.

Chambers, Chambers & Chambers, John W. Chambers, Sr., Timothy D. Chambers, for appellants.

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., John W. Campbell, Alembik, Fine & Callner, G. Michael Banick, Heidi K. Martin, for appellee.

It is clear that the definition of “agricultural products” contained in OCGA § 46-1-1 (7) (C) (x) was not intended to be used to help define “unmanufactured agricultural products” in OCGA § 46-1-1 (7) (C) (xi).

Brown does not fall within the exemptions from definition as a motor contract carrier, and its insurer is subject to the provisions of the direct action statute. See OCGA § 46-7-58 (e). Therefore, the trial court erred in granting Liberty’s motion for summary judgment on this issue.

Judgments reversed.

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

       Several defendants are involved in the underlying cases; however, they are not involved in this appeal.


text:
    A96A0480.
    THOMAS v. AUTO OWNERS INSURANCE COMPANY.
    (472 SE2d 707)
   Blackburn, Judge.

Joseph Douglas Thomas appeals the trial court’s denial of his motion to dismiss or, in the alternative, for summary judgment which raises the issue of whether an insurance carrier may continue its subrogation cross-claim against a co-defendant who has been dismissed by the plaintiff in the principal action.

On November 9, 1992, a vehicle driven by Thomas struck a car in which Rendi Leigh Dawson was a passenger. Dawson, a minor acting by her next friend, filed suit against Thomas. She also served a second original of her suit on Auto Owners Insurance Company (Auto Owners), her uninsured/underinsured motorist carrier. With its answer, Auto Owners filed a cross-claim against Thomas that sought, in the event a verdict was reached against Thomas, indemnification for any compensation Auto Owners had to pay Dawson pursuant to their insurance contract. No verdict, however, was ever rendered as Dawson settled with Thomas before the matter came to trial. Upon reaching the settlement, Dawson dismissed her complaint against Thomas with prejudice. Auto Owners did not contest or object to the dismissal. Subsequently, Thomas filed a motion to dismiss or, in the alternative, for summary judgment on the cross-claim. The trial court denied the motion, and we granted Thomas’s application for an interlocutory appeal.

Decided June 21, 1996.

Downey & Cleveland, Scott D. Clay, for appellant.

Gammon & Anderson, W. Wright Gammon, Jr., Barnes, Brown ing, Tanksley & Casurella, Michael K. Jablonski, for appellee.

1. Thomas asserts that the trial court erred in not dismissing Auto Owner’s cross-claim, reasoning that Auto Owner’s failure to object to Dawson’s dismissal resulted in the entire action, including the cross-claim, being dismissed with prejudice. Pursuant to OCGA § 9-11-41 (a) a plaintiff may, at any time before resting his case, disiniss his action without permission of the court by simply filing a written dismissal. However, “if a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.” Thomas argues that this particular provision concerning counterclaims applies to cross-claims as well by virtue of OCGA § 9-11-41 (c) which provides that “[t]his Code section also applies to the dismissal of any counterclaim, cross-claim, or third-party claim.” We agree. In Smithloff v. Benson, 173 Ga. App. 870, 875 (328 SE2d 759) (1985), this Court held that the provision of OCGA § 9-11-41 (a) concerning counterclaims is “equally applicable to the dismissal of counterclaims, cross-claims or third-party claims.” Thus, by virtue of Auto Owners’ failure to object, Dawson’s dismissal terminated the entire action including the cross-claim. See D. P. S. Indus. v. Safeco Ins. Co. &c., 210 Ga. App. 289, 290 (435 SE2d 762) (1993) (pursuant to OCGA § 9-11-41, objection to voluntary dismissal necessary to preserve counterclaim for independent adjudication). Accordingly, we find the trial court erred in denying Thomas’s motion to dismiss.

2. In light of our decision in Division 1, it is not necessary to address the additional arguments raised by the parties.

Judgment reversed.

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


author: Birdsong, Presiding Judge.

text:
    A96A0540.
    BILT RITE OF AUGUSTA, INC. v. GARDNER et al.
    (472 SE2d 709)
   Birdsong, Presiding Judge.

James and Inez Gardner sued Bilt Rite of Augusta, Inc., for negligence and breach of warranty in installing a polyurethane foam roof on their house.

At trial the evidence showed that the manufacturer of this particular polyurethane foam product specified that the thickness of foam applied to the roof must be one inch minimum and preferably one-and-one-half inches or more, except for edges which may be tapered off. The Gardners produced pieces of the middle of their roof showing that the foam applied to several areas of the roof was no more than one-half inch thick and that the foam was unevenly applied with some areas having a thickness less than one-half inch and some being only a fraction more than one-half inch thick. The Gardners produced the testimony of an expert roofer (see Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521 (301 SE2d 688)) who testified that the area immediately underneath the Gardners’ roof was wet where water had soaked through the polyurethane and that there were gravel pieces under the foam. Following a jury verdict in the Gardners’ favor, Bilt Rite appeals. Bilt Rite contends it was entitled to a j.n.o.v. because the Gardners did not produce expert evidence of the standard of care against which to measure the skilled services of Bilt Rite in determining whether Bilt Rite breached the warranty or committed negligence. Held:

Generally plaintiffs in a negligent construction case must establish the standard of care applicable to the defendant by the introduction of expert testimony. Newberry v. D. R. Horton, Inc., 215 Ga. App. 858 (452 SE2d 560). A standard of care must be proved by an expert in professional negligence cases because a jury cannot rationally apply negligence principles to professional conduct without evidence of what the competent professional would have done under similar circumstances; as the jury may not be permitted to speculate about what the professional custom may be, there must be expert evidence as to the professional custom required in such cases. Hughes v. Malone, 146 Ga. App. 341, 345-346 (247 SE2d 107). However, even in professional negligence cases, evidence of negligence in some cases may be so “clear and palpable” that it may be understood by a jury without expert evidence as to a professional standard of care. id. at 345; see Khoury Constr. Co. v. Earhart, 191 Ga. App. 562, 563 (382 SE2d 392).

In an action against a builder, it is essential to present competent evidence as to the acceptability of specific professional conduct (Hudgins v. Bacon, 171 Ga. App. 856, 860 (321 SE2d 359)), because our law requires building contractors to exercise that degree of care and skill ordinarily employed by other contractors under similar conditions and like circumstances; the standard of care must generally be established through expert testimony. Rentz v. Brown, 219 Ga. App. 187, 188 (464 SE2d 617); see Wilson v. Brighton Homes, 204 Ga. App. 677, 678 (420 SE2d 360). “[TJhe ‘professional standard’ is generally the only competent means by which such negligence can be proved in professional liability cases ... for the obvious reason that in cases asserting professional negligence the jury cannot be left to speculate too freely on what constitutes actionable negligence. Hughesi, supra at 345]. But, equally obviously, if the defendant himself testifies that he should have performed and did perform an act which the evidence shows he did not perform, and if causation is shown, the case may become a ‘clear and palpable’ case of negligence and proof of a professional standard is not required. [Id.]” Hudgins, supra at 859. “[I]t is possible for evidence to establish a known or knowable defect without proof of a professional standard, if the proof is clear and palpable to the jury.” Id. at 860; Khoury Constr. Co., supra. If it is not necessary to establish by experts the parameters of acceptable professional conduct in order to prove negligence or breach of contract for failure to perform the contract in a workmanlike manner, the case may not strictly require expert testimony as to a standard of care applied by experts in like circumstances. See Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489).

As the Gardners did not produce expert evidence of a professional “standard of care” in the installation of polyurethane foam roofing against which to measure Bilt Rite’s work, the question becomes whether the evidence constituted a case of professional or ordinary negligence so “clear and palpable” that no expert testimony of a standard of care in the industry was required. Hudgins, supra. We find that it did.

The evidence showed that the manufacturer of this particular polyurethane foam product specified that the thickness of foam applied to the roof must be one inch minimum and preferably one- and-one-half inch or more, except for edges which may be tapered off. This constitutes evidence of the acceptable standard of care in the application of this particular polyurethane foam roofing. Supportive of this conclusion is the fact that Bilt Rite does not contend that all polyurethane roofing foam is exactly alike and of the same quality, and must be applied in a professional manner which is different from the manner specified by the manufacturer of this foam.

It might be shown by a plaintiff or a defendant in some case that a manufacturer’s specifications were insufficient to meet the appropriate standard of care or were higher than the professional standard of care in the industry, but we cannot hold as a matter of law that the manufacturer’s specifications do not constitute evidence of the appropriate standard of care in negligence cases involving a builder or other professional using that manufacturer’s materials. Neither can we speculate that the manufacturer created artificially high specifications as a cushion against liability, for to so hold would encourage professionals to ignore manufacturers’ specifications in favor of some lower standard and would render meaningless all manufacturers’ specifications.

Decided June 21, 1996.

Dunstan, Dunstan & Cleary, James R. Dunstan, for appellant.

Capers, Dunbar, Sanders & Bruckner, Ziva P. Bruckner, for appellees.

The manufacturer’s specifications in this case provided “clear and palpable” evidence from which the jury could conclude Bilt Rite departed from the appropriate standard of care in its application of this roofing material. Hudgins, supra; Hughes, supra. Since appellees showed evidence that Bilt Rite failed to comply with the manufacturer’s specifications requiring a certain thickness of foam on the roof and warning against applying foam over loose gravel, and that Bilt Rite’s failure to follow the manufacturer’s specifications was the reason this roof continued to leak, “it did not take an expert to reach that diagnosis.” Khoury Constr. Co. v. Earhart, supra at 563, citing Hudgins v. Bacon, supra. To require additional expert evidence as a matter of law proving a standard against which to measure the services of this defendant in the facts of this case would unreasonably expand the requirement of expert testimony in professional malpractice cases beyond what is presently the law as stated in Hudgins, Khoury, and other cases. See Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166 (450 SE2d 275), which was a personal injury case where we held the proprietor may have been negligent in painting its restaurant’s handicap ramp with a siliconized paint which was, as stated by the manufacturer’s label on the paint can, patently unsuitable where a non-skid surface was required.

The jury had before it evidence from which it could determine that defendant was negligent in applying this foam roofing material in this case, and the verdict is supported by evidence. Accordingly, the trial court correctly denied Bilt Rite’s motion for j.n.o.v.

Judgment affirmed.

Beasley, C. J, and Blackburn, J, concur.


author: Judge Harold R. Banke.

text:
    A96A0639.
    FIRST NATIONAL BANK OF GAINESVILLE v. ALVIN WORLEY & SONS, INC.
    (472 SE2d 568)
   Judge Harold R. Banke.

First National Bank of Gainesville (“First National”) financed Mr. Sloan’s purchase of a Chevrolet pickup and retained a purchase money security interest, which it perfected by recording its lien-holder status on the truck’s certificate of title. Sloan’s agreement with First National required him to pay any storage bills on the vehicle. When Sloan later wrecked the truck, either he or a law enforcement officer requested Alvin Worley & Sons (‘Worley”) to tow it to its repair shop. Sloan never arranged to reclaim his truck and stopped paying the loan. Approximately three months after Worley towed the truck, First National declared the loan in default. When Worley refused to surrender the truck unless First National paid all accrued storage charges, the bank brought this action seeking possession of the truck. Worley counterclaimed for storage costs. After a bench trial, the lower court allowed First National to take possession of the truck but also ordered the bank to pay Worley for the towing and storage costs. Although neither party contests that part of the judgment granting First National possession of the truck, the bank appeals the trial court’s ruling holding it responsible for the towing and storage costs. Held:

1. By complying with the Abandoned Motor Vehicles Act, a storage facility may require a lienholder to pay its costs of storing an abandoned vehicle prior to giving the lienholder possession. OCGA §§ 40-11-4; 40-11-5 (9). But because Worley admittedly did not comply with the notice provisions of this law, he cannot take advantage of this statute. OCGA § 40-11-2; see Atlantic Steel Credit Union v. Shephard, 204 Ga. App. 297 (1) (419 SE2d 132) (1992).

2. The bank was not a party to Sloan’s agreement with Worley. The trial court found that Sloan acted as First National’s agent when he incurred these charges. But no evidence supports any finding that First National agreed, for itself or through any agent, to pay these charges. Sloan’s wife phoned First National the day after the accident to inform the bank of the collision and of the fact that the truck had been towed to Worley’s. In May, after Sloan defaulted, a bank employee contacted Worley and was told over $700 in towing and storage fees were owed on the truck. Worley then faxed a copy of the bill to the bank at the employee’s request.

These facts show no agency relationship between Sloan or his wife and First National. “ ‘ “Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the. other so to act.””’ Thurmond v. Bd. of Commrs. of Hall County, 174 Ga. App. 570, 571 (2) (330 SE2d 787) (1985). “Where the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he [or she] was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such agency exists.” (Citations and punctuation omitted). Holcomb v. Commercial Credit Svcs. Corp., 180 Ga. App. 451, 452 (1) (349 SE2d 523) (1986). Therefore, First National may not be held responsible for these expenses as the principal of Mr. or Mrs. Sloan.

Decided June 21, 1996.

Mottern & Van Gelderen, Leon A. Van Gelderen, for appellant.

. John O. Wiggins, for appellee.

3. Worley’s constructive knowledge of First National’s properly recorded priority lien defeats any claim it makes on the basis of “unjust enrichment” or quantum meruit. See OCGA § 40-3-54 (a); Hull v. Transport Acceptance Corp., 177 Ga. App. 875, 876-877 (341 SE2d 330) (1986); Barnes v. Gen. Motors Acceptance Corp., 191 Ga. App. 201, 202-203 (3) (381 SE2d 146) (1989); see Washington Employees Credit Union v. Robinson, 206 Ga. App. 782, 784 (3) (427 SE2d 15) (1992).

Because no evidence supports any legal theory which would hold First National responsible for these charges, Worley’s counterclaim fails. We affirm the trial court’s grant to First National of the writ of possession but reverse that portion of the judgment requiring First National to pay the expenses claimed by Worley. The trial court is directed to enter judgment against Worley on its counterclaim.

Judgment affirmed in part, reversed in part, and remanded with direction.

Pope, P. J., and Andrews, J., concur.


text:
    A96A0728.
    HOLLAND v. THE STATE.
    (472 SE2d 711)
   Blackburn, Judge.

Raymond D. Holland appeals his conviction for molesting his stepdaughter based, inter alia, upon the State’s failure to provide a proper summary of defendant’s in-custody statements upon which the State intended to rely, pursuant to former OCGA § 17-7-210.

After Holland was arrested by Detective Michael Zachery of the Douglas County Sheriffs Department, he consented to an interrogation by Detective Zachery, which was recorded on audiotape. The State prepared a transcript of the audiotape.

Holland timely requested a copy of all statements he had made while in custody, pursuant to former OCGA § 17-7-210. In response, the State produced a document entitled “Response To Discovery” which included a short, one paragraph summary of Holland’s statements to the police and attached a portion of Detective Zachery’s incident report and four letters from Holland to the victim (collectively referred to as Response To Discovery). The State did not mention the existence of the audiotape nor the transcript thereof in its Response To Discovery and did not provide Holland with a copy thereof prior to trial.

At trial, Holland initially objected to the introduction of the audiotape, but failed to formally object at the time same was tendered into evidence. The State provided the jury with copies of the written transcript of the audiotape to review as the tape was being played. The transcripts were collected from the jury at the conclusion of the audiotape. The transcript was marked as State’s Exhibit 7 and was admitted into evidence but was not sent out with the jury.

1. Holland asserts that the Response To Discovery failed to comply with former OCGA § 17-7-210. The standard of review on the issue of compliance with the requirements of former OCGA § 17-7-210 is de novo.

(a) The audio transcript which was introduced into evidence contains the following colloquy: “Zachery: Would you say you care for [your daughter] more so than you did, do your wife and your other children? Holland: Yeah” (Emphasis supplied.)

On cross-examination of Holland, the following colloquy occurred: “Q. You indicated to Detective Zachery that you cared more for her than you did your wife; isn’t that true, Mr. Holland? A. I don’t think I meant to put it in that respect, no ma’am. Q. All right. Well, let’s look at Page 10 of the [audiotape] transcript. [Reading from transcript:] Detective Zachery: Would you say you care for [your daughter] more so than you do your wife and your other children? Mr. Holland: Yeah. Is there any other way to interrupt (sic) your answer other (sic) as being affirmative, Mr. Holland? A. Not to see it this way, no, ma’am.” (Emphasis supplied.)

While the State used the audiotape transcript for impeachment purposes, the actual trial transcript reflects that the audiotape when played before the jury and as confirmed by this Court reflects the following actually occurred: “DETECTIVE ZACHERY: Would you say you care for [your daughter] more so than you do your wife and your other children? MR. HOLLAND:No” (Emphasis supplied.)

The above misrepresentation of the statements of the defendant before the jury is made especially troubling because the defendant objected to the use of the transcript even for the jury to read along on the grounds that no foundation had been established and there was no authentication of the transcript with the tape. In response to this objection, the State indicated it would cover defendant’s concerns for the record and proceeded to examine Detective Zachery, as follows: “Q. Detective Zachery, have you had a chance to view the transcripts along with the tape? A. Yes. Q. And to the best of your ability and knowledge, are they an accurate depiction of what’s on the tape? A. Yes.” (Emphasis supplied.)

(b) The State further relied upon Holland’s taped admission that he may have put his stepdaughter “in his wife’s place.” The Response To Discovery did not advise Holland of this statement, even though the State used it as an incriminatory admission. This statement should have been included in the pre-trial summary. See Reed v. State, 163 Ga. App. 364, 365 (295 SE2d 108) (1982); former OCGA § 17-7-210.

(c) The Response To Discovery indicated that Holland stated that he was no blood relation with his stepdaughter and that “he didn’t see what the problem was.” Contrary to this representation, the tape when played at trial indicates that he recognized that it would be wrong to fondle or have a sexual relationship with his stepdaughter.

(d) The Response To Discovery also indicated that Holland had offered no response when asked why he had previously given flowers to his stepdaughter.. This misrepresentation was made to Holland, even though the audiotape clearly shows that he did, in fact, respond to this question, stating that the flowers were intended to cheer her up after she had been severely disciplined. It was improper for the State to misrepresent Holland’s responses in its summary of such in-custody statements, as the law requires that such summary be accurate. Former OCGA § 17-7-210.

The effect of such an inaccuracy is compounded where the State seeks to impeach the defendant on the subject of their misrepresentation. The State cross-examined Holland about alleged inconsistencies between his trial testimony and his responses to Detective Zachery’s interrogation, while representing in its Response To Discovery to the defendant, that no responses had been made by defendant as to such matter during the interrogation. Former OCGA § 17-7-210.

A proper demand made pursuant to this statute entitles a defendant to a written rendition of any statement he may have made while in police custody “that the State may rely upon to the defendant’s disadvantage.” Bowe v. State, 201 Ga. App. 127, 129 (410 SE2d 765) (1991). In Reed, supra, we held that comments made by a defendant in custody should be revealed to the defendant “if the state intends to use them either as incriminatory admissions during its case in chief or for purposes of impeachment by means of contradictory statements.”

This Court has previously determined that the State need not provide a verbatim account of the statement so long as its “written summary of the statement . . . include[s] all relevant and material portions of the defendant’s statement.” (Punctuation omitted.) Johnson v. State, 177 Ga. App. 705, 706 (340 SE2d 662) (1986). Implicit in this standard is a requirement that the written summary provided by the State accurately and completely reflect those portions of a defendant’s interrogation that the State intends to use against the defendant. At issue here is whether the Response To Discovery met this standard.

If “ Ve are unable to say with reasonable certainty that no harm resulted from the State’s failure to obey the statutory requirements of [former] OCGA § 17-7-210,’” this matter must be reversed and remanded to the trial court. McKenny v. State, 204 Ga. App. 411, 413 (419 SE2d 731) (1992). Since the State did offer compelling evidence from which a jury could have found Holland guilty, it is all the more unfortunate that the misrepresentations of Detective Zachery and the failure of the State to meet its statutory obligation under former OCGA § 17-7-210 require the reversal of this case.

We cannot say with “reasonable certainty” that Holland was not harmed by deficiencies in the Response To Discovery and the improper representations to the defendant, the jury and the court of the in-custody statements of defendant. Neither can we say that Holland was not harmed by the improper impeachment in which the State engaged or that the jury was unaffected by such conduct. The effect upon the jury and Holland was the same regardless of whether or not the prosecuting attorneys were aware of the misrepresentations contained in the transcript and made by Detective Zachery in representing to the court that he had confirmed the accuracy of the transcript by comparing it to the audiotape.

Consequently, we have no choice but to reverse and remand this matter to the trial court. Upon any retrial, evidence pertaining to Holland’s in-custody statement shall be excluded until the mandates of former OCGA § 17-7-210 have been met. Walls v. State, 169 Ga. App. 80, 82 (311 SE2d 243) (1983).

2. Holland asserts that the trial court erred in redacting those portions of the tape and transcript wherein polygraph tests were mentioned. The standard of review of a ruling on the admissibility of testimony regarding a polygraph examination is a de novo review. Stack v. State, 234 Ga. 19 (214 SE2d 514) (1975).

Holland offered to take a polygraph regarding the allegations of his stepdaughter in the present case. Absent a stipulation that the results would be admissible, the trial court did not err in refusing to admit evidence of a defendant’s offer to take a polygraph examination. Durham v. State, 240 Ga. 203, 204 (240 SE2d 14) (1977).

Holland made reference to an earlier molestation charge lodged by his stepson that was dismissed after Holland took a polygraph. “[A] jury may be apprised that a polygraph examination has been administered to a witness to explain the conduct of that witness as long as no inference regarding the results of the test is raised.” (Citation omitted.) Stewart v. State, 263 Ga. 843, 845-846 (440 SE2d 452) (1994). Holland’s statement that the prior charges were dismissed in light of the polygraph infers that the test’s results were favorable. Therefore, the trial court did not err in excluding references to that test. See id.

3. Holland enumerates as error the trial court’s failure to redact from the audiotape and the transcript thereof, all irrelevant, argumentative, and prejudicial portions contained therein. Holland complains specifically about the failure of the court to redact the following comments of Detective Zachery during the interrogation of the defendant: “First of all, you need to tell me the truth and secondly, I know your daughter is not going to just dream this up. . . . Well, that’s a very inappropriate way to go about it, fondling her. You have an affection for your child and it’s — it’s — that is not abnormal to care about your children, but in the way you’re doing it, is very abnormal and it’s wrong. . . . The damage — the damage has been done. Mr. Holland. That’s — it’s been done, and it — it was — the damage was done four years ago the first time you did it. . . . Mr. Holland, you’re lying to me. . . . Well, I think — and this is only my opinion — any parent is going to have a bond between their children, but I think your bond between that one daughter is a little bit — little bit much. It’s — it’s going to the extreme.”

It is the duty of the trial court to remove material that is irrelevant or that puts the defendant’s character in issue. The trial court must determine whether the probative value of the evidence is outweighed by its tendency to unduly arouse the jury’s emotions of prejudice, hostility or sympathy. See Smith v. State, 255 Ga. 685 (341 SE2d 451) (1986). The standard of review of the trial court’s ruling on a challenge to evidence on the ground that its probative value is outweighed by its tendency to unduly prejudice the jury is an abuse of discretion standard. See Carroll v. State, 261 Ga. 553 (408 SE2d 412) (1991).

In Fordham v. State, 254 Ga. 59 (325 SE2d 755) (1985) our Supreme Court reversed the trial court because the interrogating officer was allowed to state his opinion as to matters that were properly for the jury to determine, and that such was not harmless because it went to the very heart of the case. It is for the jury to determine credibility of the witnesses, free from the opinions of others in that regard. See Kennard v. State, 180 Ga. App. 522 (349 SE2d 470) (1986).

Decided June 21, 1996.

Jill L. Anderson, Jeffrey P. Manciagli, for appellant.

David McDade, District Attorney, Robert L. O’Brien, Assistant District Attorney, for appellee.

The comments complained of have no probative value and contain the opinions and conclusions of Detective Zachery. Therefore, they should have been redacted by the trial court and must be so removed upon any future trial of this matter under the above standards.

4. In light of Division 1, we address only those enumerations of error that are likely to recur upon retrial. Therefore, we do not address Holland’s claim of ineffective assistance of counsel.

Judgment reversed and remanded with direction.

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

       Former OCGA § 17-7-210, now repealed, applies to this matter as it was docketed prior to January 1, 1995.


text:
    A96A1057.
    MANER v. THE STATE.
    (472 SE2d 716)
   Birdsong, Presiding Judge.

Travis Maner, Jr., appeals his conviction of aggravated sexual battery and child molestation of then an approximately two- to three-year-old child victim. He enumerates ten errors. Held:

1. Appellant enumerates four claims of inadequacy of counsel.

(a) Appellant’s trial counsel was not deficient, as asserted in appellant’s first enumeration, in failing to call appellant to the stand to testify. The decision whether to testify in one’s own behalf rests ultimately with the defendant after consultation with his counsel. Van Alstine v. State, 263 Ga. 1, 2 (426 SE2d 360). Appellant responded affirmatively when the trial court asked whether, after talking with his lawyer, he had made the decision not to testify and whether there was no dispute with his lawyer regarding this decision. Appellant’s trial counsel testified at the motion for new trial hearing regarding his discussions with appellant that the latter made the ultimate decision not to testify. See Division 1 (b). Appellant’s first enumeration of error is without merit. Chambers v. State, 266 Ga. 39, 42 (3) (463 SE2d 887); Datz v. State, 210 Ga. App. 517, 518 (3) (c) (436 SE2d 506).

(b) Appellant’s second, third, and fourth enumerations of error concern trial strategy or tactics. Appellant contends his trial counsel was deficient in failing to call defense character witnesses, in failing to present specific medical issues pertaining to the child victim (i.e., the presence of genital warts on the child), and in failing to present evidence known to counsel prior to trial regarding an alternate cause for the child’s medical problems (i.e., child’s temperature had been taken on at least one occasion with a rectal thermometer). “ ‘The decisions on [what] witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.’ ” Van Alstine, supra at 3. At the hearing on appellant’s motion for new trial, appellant testified inter alia that he had offered to go to the doctor to be checked for genital warts, that his counsel had met with him only once for a brief time period about a week before trial, that counsel made the decision that appellant not testify, and that counsel stated he did not want to call character witnesses because he desired to have the right to give closing argument and also because he did not want to open the door so that appellant’s “gay” lifestyle could become known to the jury. Trial counsel testified inter alia that prior to trial he had discussed with appellant the issue of appellant’s testifying in his own behalf; he also testified as to the trial strategy and tactics he employed in making an informed decision not to explore the issue of genital warts. Trial defense counsel expressly testified that he was not informed appellant had character witnesses available to testify in his behalf; counsel did not inquire as to their existence, as use of character witnesses was not consistent with his trial strategy. He also testified that he had met with appellant “a pretty good many times” prior to trial and had met repeatedly with appellant’s male companion who frequently accompanied appellant to the attorney’s office. Trial defense counsel stated he was aware of the witnesses and evidence at issue and had made strategic choices, for reasons which he described, not to utilize these particular trial options.

At the motion for new trial hearing, appellant’s male companion and appellant (to whom the victim referred as “Uncle Junior”) testified that the child’s temperature had been taken by appellant’s grandmother (the victim’s great-grandmother) with a rectal thermometer. Appellant admitted he did not inform his trial counsel of this fact but claimed his family did so. No member of appellant’s family, however, testified in support of this specific claim; neither was such a claim advanced in any proffer of expected testimony. Appellant’s male companion testified as to one occasion when appellant had to hold the child victim’s hands so his grandmother could take the child’s temperature rectally. The companion, who had talked with trial counsel three times before trial, could testify only that “maybe” he had informed appellant’s trial counsel of this event, and he did not know if the thermometer had injured the child’s rectum. The proffer of the grandmother’s testimony included the contention that she had never talked with the trial counsel. Family members of appellant and the male companion were present at trial and available to testify as character witnesses for appellant. Trial counsel testified that he had never been informed of this fact and heard about it for the first time at the hearing.

The trial court found that the areas of conduct addressed in the second, third, and fourth enumerations of error were “areas reserved to the decision of counsel as trial strategy” and appellant “has failed to prove either element of an ineffective assistance of counsel claim.” We agree.

In this case there clearly was no total failure of trial preparation as in Cochran v. State, 262 Ga. 106 (414 SE2d 211). “There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity.” Datz, supra at 518 (3) (a). To prevail on a claim of inadequacy of counsel, appellant must show counsel’s performance was deficient and the deficient performance prejudiced the defense. Grier v. State, 266 Ga. 170, 173 (4) (a) (465 SE2d 655). “There is a strong presumption that trial counsel’s performance ‘falls within the wide range of reasonable professional assistance,’ and that any challenged action by trial counsel ‘ “might be considered sound trial strategy.” ’ ” Ferrell v. State, 261 Ga. 115, 119 (3) (401 SE2d 741). “Under the circumstances in this case, and relying on the ‘strong presumption’ that counsel’s performance was not deficient, [cits.], we affirm the trial court’s ruling that trial counsel was not ineffective as asserted.” Luallen v. State, 266 Ga. 174, 176 (3) (a) (465 SE2d 672). Moreover, “[a] trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” Jones v. State, 217 Ga. App. 722, 723 (2) (458 SE2d 894).

2. Appellant’s contention that the trial court erred in allowing the State to lead the child victim on direct examination, regarding matters stated by the victim to the court outside the hearing of the jury, is without merit. Following appellant’s timely leading question objection, the trial court ruled it was going to allow both the prosecutor and the defense a “good bit of latitude” in examining the then four-year-old victim. “[I]t is well settled that the court may allow leading questions of a child witness.” Grier v. State, 257 Ga. 539, 540 (1) (361 SE2d 379). The trial court’s allowance of leading questions during direct examination of a child of tender years is not erroneous absent a clear abuse of discretion. Johnson v. State, 140 Ga. App. 246, 247 (3) (230 SE2d 499). Appellant has made no such showing. Appellant’s counsel also acquiesced in the trial court’s ruling. Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298).

3. Appellant contends the trial court erred in allowing Sergeant Davis to state her opinion regarding whether there was any evidence of persuasion or influence of the victim. The objection was overruled on the grounds appellant had opened the door by previously cross-examining the witness as to the existence of such conduct in other cases. Appellant cites no legal authority in support of this enumeration and contends that the witness would have had to be qualified as an expert to give such an opinion. After the objection was overruled, the witness testified she had seen no evidence of coaching of the child victim and thereafter explained what factors she looked for in determining whether a child had been coached.

The witness, who had been a police officer for seventeen years and a police sergeant for three of those years, was assigned as a juvenile officer, and had special training in the areas of children and law enforcement, sex crimes, and abused children. Training included several seminars a year and update training at a police academy. The witness had also studied about factors and signs pertaining to molestation, children’s body language, and the reaction of children when something bad happens to them. Pretermitting whether there was no error because the witness subsequently was qualified tacitly as an expert witness by the trial court based on her experience and training (see, e.g., OCGA § 24-9-67; Stewart v. State, 246 Ga. 70, 75 (4) (a) (268 SE2d 906); Ingram v. State, 178 Ga. App. 292 (1) (342 SE2d 765)) or whether the witness could, without the door first being opened, express her opinion as to this issue as a lay witness (see, e.g., OCGA § 24-9-65; cf. Jones v. Grogan, 98 Ga. 552 (4) (25 SE 590)) is whether appellant opened the door for such testimony.

Prior to the question and answer at issue, the following colloquy, between appellant’s trial counsel and the witness Sergeant Davis, occurred in the presence of the jury: “[Counsel] In your experience and in your training, have you come to the realization that occasionally that parents or people who have influence over little children like this will persuade them inappropriately in these type cases? [Witness] And those are the cases I don’t make charges on. [Q.] Okay. ... I mean there is no way you can ever be a hundred percent about something like that; is there? [A.] Not in all cases, no. Some of them there is one hundred percent, but not all. [Q.] Right. Sometimes it is obvious that the child is being influenced in some way, and sometimes you are not sure. Would that be a fair statement? [A.] In some cases, yes. [Q.] Okay. And has it been your experience in investigating these cases especially I am talking about children that are [T.’s, the named child victim’s] age that children of that age can be easily influenced, and persuaded by adults, particularly by their parents? [A.] They can be, but if you interview them and talk to them enough, you can tell whether they are being persuaded or coached or anything like that.” (Emphasis supplied.) It is clear from this colloquy that not only did appellant’s counsel elicit the purported expert opinion of the witness regarding the issue of the improper coaching or influencing of children’s testimony but expressly made reference to the child victim by name and oblique reference to his tender age. Under these circumstances, appellant’s trial tactics and conduct opened the door for the subsequent exploration of the subject of improper coaching or influence in this case and for the eliciting of the witness’s opinion as to such matters. See Beasley v. State, 202 Ga. App. 349 (1) (414 SE2d 663); compare Williams v. State, 251 Ga. 749, 785 (312 SE2d 40). Also, it is well established that one cannot complain of a ruling that his own trial tactics or conduct procured or aided in causing. Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

4. Appellant has failed to preserve enumerations of error 7, 8, 9, and 10 for appellate review. In his appellate brief, appellant merely repeats verbatim enumerations of error 7 through 10 without advancing any legal argument or presenting any citations of legal authority in support thereof. “ ‘Grounds of error not covered by the brief or the argument of counsel . . . will be treated as abandoned. . . . Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit.’ ” Redwing Carriers v. Knight, 143 Ga. App. 668, 676 (11) (239 SE2d 686). Enumerations of error 7, 8, 9 and 10 have been abandoned. Court of Appeals Rule 27 (c) (2); see Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630). Moreover, in the interest of judicial economy we note that as to appellant’s claim in enumeration of error 7, unless time is averred as an essential element of the offense charged, the time of commission of the offense alleged in the indictment is immaterial. However, to sustain a conviction, there must be proof to establish that the offense occurred prior to the return of the indictment and within the statute of limitation. Compare Jefferson v. State, 136 Ga. App. 63, 66 (5) (220 SE2d 71) with Bloodworth v. State, 128 Ga. App. 657 (1) (197 SE2d 423).

5. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided June 21, 1996

Paul R. Cadle, Jr., for appellant.

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

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A0094.
    A96A0507.
    COOK v. THE STATE. SPRINGER v. THE STATE.
    (472 SE2d 686)
   Birdsong, Presiding Judge.

Deangelo Cook and Mark Springer were tried jointly and both were convicted of the armed robbery of a bank and possession of a firearm during the commission of a crime. As a recidivist, Cook was sentenced to life in prison without parole for the armed robbery and a consecutive sentence of five years confinement for the possession of a firearm during the commission of a crime; Springer was sentenced to a life term for the armed robbery and five years confinement for the possession of a firearm during the commission of a crime consecutive to the life term.

The evidence shows that Cook and Oldham, an accomplice who pled guilty and testified for the State, entered the bank; Oldham held a pistol on one of the bank employees and generally threatened the other employees while Cook jumped over the bank counter and removed money from the teller’s cash drawers. One of the bank employees identified Cook at a photo lineup and later testified that she was absolutely sure Cook was the man who jumped over the counter because the man had distinctive ears and a big space between his teeth. Additionally, the bank’s surveillance camera took a photograph during the robbery showing one of the robbers with distinctive ears and a big space between his teeth. Witnesses testified that the person in this photograph looked exactly like Cook.

After leaving what appeared to be a pipe bomb in the bank, the men fled in a light blue, older model car. The description of the car given by the witness at the bank matched a car later recovered and identified as one that had been stolen from a used car lot. Although a witness from the used car lot identified Springer as the man who stole the car, Oldham testified that it was Cook who stole the car.

Examination of the pipe bomb left in the bank showed that it was a fake. An expert testified, however, that fingerprints taken from the fake bomb matched those of Oldham and Cook.

Oldham testified on behalf of the State that he needed money and decided to rob a bank, that he enlisted Springer in the scheme and Springer caused Cook to join them. He further testified that Cook took the car from the used car lot. He also testified that it was Springer’s idea to use the fake bomb and that Springer purchased the components at a building supply store. Oldham testified that he and Springer traveled toward the bank in one car and that Cook drove the stolen car. Near the bank they parked the other car and proceeded to the bank in the stolen car. Springer stayed in the stolen car while Cook and Oldham went in and robbed the bank. According to Oldham’s testimony, they abandoned the blue car after the robbery and left in the other car for Newnan, Georgia, where they checked into a motel and divided the money from the robbery.

Based on information from informants and identification of Cook by police officers from the bank surveillance photographs, Oldham, Springer and Cook were arrested for the robbery. After their convictions, Cook and Springer appealed. Cook contends the trial court erred by allowing a prosecution witness to testify in violation of the rule of sequestration, erred by allowing the prosecution to place his character in issue through testimony that he was on parole, and erred by denying his motion to sever his trial from Springer’s. Springer contends the trial court erred by denying his motion to sever the trials, erred by excluding evidence that a witness attempted suicide, and erred by excluding his counsel from a meeting in which the co-defendant and his counsel, the prosecutor, and the trial judge participated. Held:

Case Nos. A96A0094, A96A0507

1. Appellants’ contentions that the trial court erred by denying their motion to sever their trials are without merit. Whether to grant a severance motion is within the discretion of the trial court. Freeman v. State, 205 Ga. App. 112 (421 SE2d 308). See OCGA § 17-8-4. To be entitled to a severance, appellants were required to do more than raise the possibility that separate trials would have given them a better chance of obtaining acquittals; they were required to make a clear showing of prejudice sufficient to establish a denial of due process. Barnett v. State, 204 Ga. App. 491, 495 (420 SE2d 43); Emmett v. State, 199 Ga. App. 650, 652 (405 SE2d 707). Appellants did not carry this burden, and the trial court did not err by denying their motions.

Case No. A96A0094

2. Cook contends the trial court erred by allowing a State’s witness to testify in violation of the sequestration rule. His allegation is based upon the trial court allowing a witness to testify after the witness was in the courtroom when Cook attempted to enter a guilty plea. Such conduct does not violate the sequestration rule. The “Rule” (OCGA § 24-9-61) provides that “either party shall have the right to have the witnesses of the other party examined out of the hearing of each other.” As Cook was not a State’s witness, the witness could not violate the Rule by remaining in the courtroom during the discussions regarding Cook’s possible guilty plea. Moreover, even if the Rule had been violated, the remedy for such violation is not exclusion of the witness. See OCGA § 24-9-61; Hayes v. State, 175 Ga. App. 135 (332 SE2d 917). Additionally, in view of the witness’s testimony that her identification of Cook was based upon her close observation of him during the robbery and her identification of Cook in a pretrial photo lineup, there is no likelihood that her identification was based upon her observation of Cook during his attempt to plead guilty. See McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888).

3. Cook further alleges that the trial court erred by allowing the prosecution to put his character in issue by introducing evidence that Cook was on parole at the time of the robbery. As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). Further, material evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. Greer v. State, 199 Ga. App. 106, 107 (403 SE2d 825). See OCGA § 24-2-2; Jackson v. State, 209 Ga. App. 217 (433 SE2d 655). Here, the testimony of the parole officer was material because it showed Cook’s motive for committing the robbery. Before the robbery, Cook was months in arrears on his parole fees and on the day of the robbery Cook was supposed to be in a parole hearing, but did not appear. The day after the robbery, however, Cook had money to pay the parole fees. As this evidence was material, there was no error even though the evidence incidentally showed that Cook was on parole. Lumpkin v. State, 182 Ga. App. 505, 507 (356 SE2d 238); Bragg v. State, 162 Ga. App. 264, 267 (291 SE2d 112).

Case No. A96A0507

4. Springer contends the trial court erred by preventing him from asking a prosecution witness whether the witness had tried to commit suicide. The transcript shows that on cross-examination by Springer’s counsel the witness was asked when the first time was that he had attempted suicide, and that the witness answered, “I never have.” Then, in response to the prosecution’s objection to the question, the trial court instructed Springer’s trial defense counsel that he could inquire into the matter further if he would, in good faith, tell the court that evidence of the witness’s suicide attempts would be produced. Springer, however, did not pursue the matter at that time. We find that this conduct waives any appellate issue concerning this matter. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. [Cit.]” Whisnant v. State, supra at 744.

Additionally, although the right to a thorough and sifting cross-examination of witnesses is without question in this state (OCGA § 24-9-64), the scope of cross-examination is not unlimited, but rests largely within the discretion of the trial court, and the exercise of this discretion will not be disturbed on appeal unless it is abused. Moore v. State, 251 Ga. 499, 501 (307 SE2d 476). Thus, a trial court may restrict the scope of cross-examination if the inquiry is not relevant or material to issues being tried. Fletcher v. State, 197 Ga. App. 112 (397 SE2d 605). “While a witness may be impeached on a collateral issue which is indirectly material to the issue in the case, a witness may not be impeached because of a discrepancy as to a wholly immaterial matter. [Cit.]” Ellis v. State, 181 Ga. App. 630, 631 (353 SE2d 822). Therefore, Springer, having received the witness’s response that he had never attempted suicide, was not entitled to attempt to impeach the witness on this wholly collateral issue. Accordingly, the trial court correctly prohibited this line of inquiry, and a correct decision of a trial court will not be reversed, regardless of the reasons stated. Ely v. State, 192 Ga. App. 203, 205 (384 SE2d 268).

5. Although Springer’s enumeration of error alleges that the trial court erred by excluding his counsel from an in-chambers meeting with the trial judge, co-defendant Cook, Cook’s counsel, and the prosecution, which Springer contends was a critical stage of his trial, the argument in support of this enumeration argues only that the trial court erred by excluding Springer from the meeting. Accordingly, because of Springer’s failure to support the error enumerated with argument, citation of authority, and reference to the transcript or record, the error enumerated is deemed abandoned. Court of Appeals Rule 27 (c) (2); Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109 (316 SE2d 554). In addition, we cannot consider the error raised in Springer’s argument because it was not included within the error enumerated (Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507); Hurston v. Ga. Farm Bureau &c. Co., 148 Ga. App. 324, 326 (250 SE2d 886); Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686)) and was not the subject of an objection in the trial court. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877). Accordingly, we cannot consider this issue.

Decided April 2, 1996

Reconsideration denied June 24, 1996

Jill L. Anderson, Virginia W. Tinkler, for appellant (case no. A96A0094).

Mark Springer, pro se.

William T. Hankins III, for appellant (case no. A96A0507).

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgments affirmed.

Beasley, C. J., and Blackburn, J., concur.