text:
    A93A0745.
    GILBERT v. THE STATE.
    (433 SE2d 664)
   Pope, Chief Judge.

Defendant Henry Eugene Gilbert appeals his conviction for aggravated assault.

1. In three enumerations of error defendant challenges the sufficiency of the evidence to support his conviction. Defendant was charged with committing aggravated assault with a deadly weapon. The definition of that crime is that an assault as defined by OCGA § 16-5-20 was committed on the victim by use of a deadly weapon. OCGA § 16-5-21.

Sufficient evidence was presented for a rational finder of fact to find the defendant guilty of aggravated assault beyond a reasonable doubt. The victim, defendant’s now former spouse, testified that at the time of the events giving rise to defendant’s conviction she had been married to him for approximately sixteen months and a dispute had arisen between the two of them concerning discipline for her fourteen-year-old son. On the day in question she told defendant she wanted a divorce. At the defendant’s insistence, the victim agreed to accompany him on a trip to the store. Instead of returning to their home in Cartersville after the trip to the store, defendant drove to Rome. During this drive he threatened to kill her several times. Close to Rome, the defendant turned onto Black’s Bluff Road, stopped his vehicle, pulled out a hunting knife and ordered his wife to get out of the vehicle and remove her clothes. A car passed their vehicle so the defendant moved his vehicle onto a nearby dirt road and again ordered her at knifepoint to get out of the vehicle and remove her clothes. When they were outside the vehicle, he pulled her shirt off and she started running around the vehicle to escape him. He climbed on top of the vehicle to catch her and she ran into the woods. He ran into the woods after her. The victim ran through the woods for over two hours until she came to a house. The occupants of the house summoned the police. Two officers who responded to that call testified that they found the victim covered with scratches and cuts and very scared.

Contrary to defendant’s contentions otherwise, there is no requirement that the victim actually be injured by the deadly weapon before a conviction for aggravated assault is authorized. See Daughtry v. State, 180 Ga. App. 711, 712 (1) (350 SE2d 53) (1986). It is the reasonable apprehension of harm by the victim of an assault by use of a deadly weapon that establishes the crime of aggravated assault. Also, it is not necessary for the State to admit into evidence the deadly weapon used by the defendant in order for the defendant to be found guilty of aggravated assault. Zachery v. State, 153 Ga. App. 531 (1) (265 SE2d 860) (1980). The victim described the knife used by defendant with particularity and there was sufficient evidence for the jury to determine the knife was a deadly weapon.

2. Defendant argues the trial court erred by allowing testimony concerning a box-cutter knife found in defendant’s vehicle at the time of his arrest. Defendant argues that his warrantless arrest was illegal and therefore any reference to what was found during that search is inadmissible. We hold that defendant’s warrantless arrest was authorized by OCGA § 17-4-20 (a) which allows a law enforcement officer to make an arrest without a warrant if he has probable cause to believe that an act of family violence, as defined by OCGA § 19-13-1 has been committed. Family violence is defined by that Code section as including an assault by one spouse on another. At the time defendant was arrested one officer had been told by the victim what happened and that officer radioed other officers to alert them to look for defendant and his vehicle. Based on that information, another officer placed defendant under arrest. The defendant was in his vehicle at the time he was arrested and any search of that vehicle was incident to a lawful arrest. OCGA § 17-5-1 (a).

Furthermore, even if the search of the vehicle had not been legal, the admission of evidence concerning the box-cutter knife would at most be harmless error in this case. The victim testified that the knife used by defendant during the assault was a hunting knife with a long blade. The only evidence concerning the box-cutter knife was that it was the only knife found in defendant’s vehicle, it did not match the description of the knife used by defendant during the assault and defendant used box-cutter knives at his job. Harmless error will not authorize reversal of a conviction by this court. McAlister v. State, 204 Ga. App. 259 (3) (419 SE2d 64) (1992).

3. In his remaining enumerations of error, defendant complains that the trial court erred in denying his motion for new trial based on his claim of ineffective assistance of counsel at trial. Defendant contends his trial counsel was ineffective because: (1) he failed to file a motion to suppress the evidence obtained during the search of defendant’s vehicle; (2) during his objection to certain photographs offered by the State on the grounds that a proper foundation had not been laid, he failed to state what would be necessary for a proper foundation to be laid; and (3) he failed to present witnesses during defendant’s sentencing hearing concerning defendant’s psychiatric condition. For the reasons set forth in Division 2, trial counsel was not ineffective because he failed to file a motion to suppress in this case.

Defendant’s second basis for his ineffectiveness claim is also unmeritorious. The record reveals that the defendant posed a proper objection to the admission of the photographs, that is, the photographs should not be admitted because a proper foundation had not been laid. Thereafter the State laid a proper foundation and the trial court correctly admitted the photographs into evidence. In posing an objection to evidence on the basis that a proper foundation has not been laid, it is not necessary, as defendant posits, for the objecting party to instruct the party seeking to admit the evidence on how a proper foundation should be laid.

With regard to defendant’s third basis for his ineffectiveness claim, trial counsel brought to the court’s attention during the sentencing phase that the defendant was receiving psychiatric care at the prison where he was being detained and asked the court to consider the defendant’s psychiatric condition when imposing his sentence. During sentencing the trial court stated: “I am sympathetic with the Defendant’s situation in that at least it’s been apparent to someone that there are some sort of emotional or mental problems.” Although trial counsel did not present witnesses during the sentencing phase to discuss defendant’s psychiatric condition, defendant did not present any evidence concerning what testimony was available and how testimony about his psychiatric condition would have affected his sentence. Absent a showing that testimony concerning defendant’s psychiatric condition was available and that, had it been requested, it could have materially affected the defendant’s sentence, we will not hold the trial court erred by denying defendant’s motion for new trial on the basis that his trial counsel was ineffective because he failed to offer testimony during the sentencing phase concerning defendant’s psychiatric condition. See Brown v. State, 179 Ga. App. 538, 539 (346 SE2d 908) (1986).

Decided June 25, 1993 —

Reconsideration denied July 14, 1993 —

Karolyn Prince-Mercer, for appellant.

Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       Assault is defined in OCGA § 16-5-20 in pertinent part as: “(a) A person commits the offense of simple assault when he either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” (Indentations omitted.)

       The knife was described as being a small metal knife containing a slit opening and a lever which allowed a razor to be raised through the opening.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A0749.
    MOSS v. THE STATE.
    (433 SE2d 692)
   Birdsong, Presiding Judge.

Charles Moss, Jr., appeals his conviction for violation of the Georgia Securities Act. Although tried for three counts of securities fraud, Moss was convicted of one count of violating OCGA § 10-5-12. On appeal, Moss asserts that he was tried in the wrong venue because the evidence failed to prove that an act in furtherance of the transaction occurred in the county in which he was tried. He also contends his conviction is not supported by the evidence because the evidence established an unsecured loan rather than a security transaction. Held:

1. Viewed in the light most favorable to the verdict (Grant v. State, 195 Ga. App. 463 (393 SE2d 737)), the evidence shows that Moss was a licensed stockbroker and registered securities salesman with the State of Georgia, and in that capacity engaged in a number of stock transactions on behalf of a client. Moss solicited this client to participate in an investment pool through which she would receive a 50 percent profit. Despite her protestation that she wished to limit her investments to stocks, Moss continued to solicit the client to invest. Moss also told the client that the pool was doing so well that he would guarantee her 50 percent return in a notarized contract. As a result, this client invested money with Moss. Subsequently, the client sought payment; instead, Moss convinced her to remain in the investment pool. Later, Moss convinced the client to invest a further $8,500 with him. At this time Moss gave the client another proposal that had a provision stating the funds would “be used to invest in a very profitable investment portfolio.”

Decided July 1, 1993 —

Reconsideration denied July 14, 1993 —

Steven M. Reilly, for appellant.

Subsequently, the client visited Moss’ office to request payment of her first investment. Although Moss gave the client a check, he asked her not to cash the check for several days. Because of Moss’ repeated requests, the client withheld cashing the check for several weeks, until finally, Moss told her that all the money was gone.

After the client told Moss she intended to report him to the Securities & Exchange Commission, Moss called the client at her home in Gwinnett County to persuade her not to do so. Subsequently, Moss visited the client at Gwinnett Mall, also in Gwinnett County, and paid her several hundred dollars for the same purpose.

Moss further contends the evidence was insufficient to establish a securities transaction rather than a loan. To constitute a security transaction in this state, there must be an investment, reasonable expectation of profit, and reliance on the management of others to achieve the profit. Tech Resources v. Estate of Hubbard, 246 Ga. 583, 584 (272 SE2d 314). Accord Cohen v. William Goldberg & Co., 262 Ga. 606, 607-609 (423 SE2d 231). The focus is on whether the investor relies upon the managerial efforts of others to realize the profits. D. K. Properties v. Osborne, 143 Ga. App. 832 (240 SE2d 293). Considering the victim’s testimony concerning representations made by Moss and the statements in the proposal, the evidence was sufficient to prove a scheme in violation of OCGA § 10-5-12 (h) under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Venue for purposes of OCGA § 10-5-15 includes “any county in which any act was performed in furtherance of the transaction which violated the chapter.” To satisfy the requirements of this section, it is not necessary that the defendant be physically present in a county. Deliberately sending mail or making telephone calls to the victim’s residence is sufficient to establish venue under OCGA § 10-5-15 in that county. Thayer v. State, 189 Ga. App. 321, 323-324 (376 SE2d 199). Under the facts of this case, Moss’ contacts with the victim in Gwinnett County were in furtherance of the scheme and were sufficient to vest the court with venue. Id.

Judgment affirmed.

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

Thomas C. Lawler III, District Attorney, Neal R. Bevans, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A93A0750.
    CSX TRANSPORTATION, INC. v. ADKINS. CSX TRANSPORTATION, INC. v. WAGERS.
    A93A0751.
    (433 SE2d 392)
   Smith, Judge.

Adkins and Wagers brought separate actions for damages against their mutual employer, CSX Transportation, Inc., seeking recovery under the Federal Employers Liability Act (FELA), 45 USC § 51 et seq., for injuries sustained as a result of the same occupational disease. After discovery, CSX moved in each case for summary judgment on the basis of the statute of limitation. Although these motions were denied, the trial court timely certified its orders for immediate review. OCGA § 5-6-34 (b). CSX’s applications for interlocutory appeal were granted by this court and timely notices of appeal were filed. The appeals raise identical enumerations of error arising out of substantially the same set of facts. Accordingly, they are hereby consolidated for disposition on appeal.

The evidence here would authorize finding the following facts: Plaintiffs have been employed by appellant for 19 years and 16 years respectively. Their primary responsibilities were to degrease diesel engines and engine parts by applying chemical solvents. The specific injury for which each plaintiff seeks recovery is toxic encephalopathy resulting from continued exposure to these chemical solvents. According to the medical testimony, the onset of toxic encephalopathy is manifested by memory loss, depression, confusion, loss of balance, and headaches. Throughout the years, each had experienced skin irritation upon direct contact with the solvent and a form of intoxication or light-headedness after exposure. However, these reactions were always temporary. Neither plaintiff had experienced memory loss or depression before as a result of exposure. Medical testimony distinguished between symptoms of exposure, such as the skin irritation and dizziness, and symptoms of injury, such as the loss of memory, depression, and loss of balance and coordination even in the absence of exposure to the solvent.

The applicable statute of limitation is 45 USC § 56: “No action shall be maintained under [the FELA] unless commenced within three years from the day the cause of action accrued.” With respect to occupational diseases compensable under the FELA, “ ‘no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently, the afflicted employee can be held to be “injured” only when the accumulated effects of the deleterious substance manifest themselves. . . [Cit.]” Urie v. Thompson, 337 U. S. 163, 170 (69 SC 1018, 93 LE 1282) (1949).

Decided June 28, 1993 —

Reconsiderations denied July 14, 1993 —

Alston & Bird, Jack H. Senterfitt, Linda G. Carpenter, for appellant.

Burge & Wettermark, F. Tucker Burge, Michael J. Warshauer, for appellees.

“ ‘A claim accrues under the FELA only when the [employee] possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known. [Cits.]’ [Cit.]” Robb v. CSX Transp., 204 Ga. App. 690, 693 (420 SE2d 370) (1992). However, an employee cannot avoid the statute of limitation by choosing to ignore the early signs and symptoms of his disease. A plaintiff has a duty to investigate an injury and cause when he experiences symptoms. Bowles v. CSX Transp., 206 Ga. App. 6, 8 (2) (424 SE2d 313) (1992). In both Robb and Bowles, the claimant employee had been informed by a physician of the existence of hearing loss, the injury for which recovery was sought, well before the three-year period prior to the filing of suit. Because of this prior information, 45 USC § 56 was held to bar an action commenced more than three years after the employee had been so informed.

In this case, CSX supported its motion for summary judgment with undisputed evidence that both Adkins and Wagers always suffered skin irritation and temporary intoxication from exposure to the solvent supplied by CSX. Recognizing the medical distinction between the temporary symptoms of non-injurious exposure and the additional and qualitatively different symptoms of permanent injury, CSX’s evidence only confirms the existence of a genuine issue of material fact as to whether either employee should have investigated sooner the possibility of permanent injury. Viewing the evidence in the light most favorable to the non-movant employees, they did not possess all the critical facts until they were examined and informed by a physician in 1989. In that event, the claims were not untimely under 45 USC § 56 as a matter of law, and the trial court correctly denied summary judgment to CSX on the basis of the statute of limitation.

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A93A0796.
    WILLIAMS v. PIGGLY WIGGLY SOUTHERN, INC.
    (433 SE2d 676)
   McMurray, Presiding Judge.

Plaintiff brought this slip and fall case against defendant. He alleged that he slipped and fell in the meat department of defendant’s grocery store. Defendant denied liability and the case proceeded to trial. The jury rendered its verdict in favor of defendant and judgment was entered accordingly. Thereafter, plaintiff moved for a new trial. The motion was denied and plaintiff appealed.

During the course of the trial, plaintiff called Ralph Nail, the manager of defendant’s store, as his first witness for purposes of cross-examination. During his cross-examination of Mr. Nail, plaintiff asked him if he knew “whether the meat area was inspected for at least an hour before [plaintiff] fell?” Mr. Nail responded: “Yes, Bryan Brezell had already told me that he had dust mopped the store before he was leaving. He was supposed to leave at eleven o’clock.” Plaintiff made no objection to Mr. Nail’s response.

Thereafter, during closing argument, defense counsel stated: “[Plaintiff] walked in the store ... a little bit before eleven o’clock ... He fell on four little drops of chicken blood . . . that nobody saw . . . The testimony from Mr. Nail was undoubtedly that Bryan Brezell had said that he mopped that floor just a few minutes before he . . .” At that point, plaintiff objected, positing that in his closing argument defense counsel was improperly relying on hearsay evidence, i.e., evidence without any probative value, and seeking an instruction to the jury to disregard the argument. The trial court overruled plaintiff’s objection.

In his sole enumeration of error, plaintiff asserts the trial court erred in overruling his objection to defense counsel’s closing argument. In this regard, plaintiff relies on OCGA § 9-10-185 which provides: “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. In its discretion, the court may order a mistrial if the plaintiff’s attorney is the offender.” Held:

“In this state even in the absence of objection, hearsay is without probative value to establish any fact. Longstreet v. Longstreet, 205 Ga. 255 (4) (53 SE2d 480); Collins v. State, 146 Ga. App. 857, 860 (247 SE2d 602).” Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216). See also Green, Ga. Law of Evidence (3d ed.), § 222, wherein the author notes that “the Georgia rule on this subject is stricter than most states.” Although plaintiff did not interpose an objection to Mr. Nail’s hearsay testimony, that testimony was insufficient to establish whether and/or when Bryan Brezell dust mopped the floor. Finch v. Caldwell, supra.

Decided June 28, 1993 —

Reconsideration denied July 14, 1993 —

Gilbert & Montlick, Fred A. Gilbert, Lissner, Killian, Cunningham & Zacker, Robert P. Killian, for appellant.

Beckmann & Pinson, William H. Pinson, for appellee.

“[I]n Taylor v. State, 121 Ga. 348, 354 (49 S.E. 303), it is pointed out that ‘What the law forbids is the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice the [other party].’ ” Miller v. Coleman, 213 Ga. 125, 130 (97 SE2d 313). Inasmuch as defense counsel’s argument introduced facts which were not in the record, Finch v. Caldwell, supra, and which were clearly prejudicial, the trial court had a duty to instruct the jury that it was to disregard defense counsel’s argument, as soon as plaintiff interposed his objection, if not before. OCGA § 9-10-185; Ga. & Ala. R. v. Pound, 111 Ga. 6, 9 (4), 10 (36 SE 312). The trial court’s breach of that duty requires us to reverse this case.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A93A0808.
    GREEN v. SAMS. SAMS v. HARRISON et al. CITIZENS & SOUTHERN NATIONAL BANK v. SAMS et al. HARRISON v. SAMS.
    A93A0809.
    A93A0810.
    A93A0811.
    (433 SE2d 678)
   Andrews, Judge.

Sams sued Green, the Citizens & Southern National Bank (C & S), and Harrison, individually and as an employee and agent of C & S, alleging the defendants conspired to tortiously interfere with and breach a written contract under which Green agreed to purchase a tract of land from Sams for real estate development. Sams also sued Green for specific performance, or, alternatively, for breach of contract. Green counterclaimed against Sams for return of earnest money paid under the contract, and cross-claimed against Harrison and C & S seeking reimbursement from his co-defendants on the basis of indemnity or contribution for any judgment for damages rendered against him in favor of Sams.

The main parcel of land at issue is approximately 39 acres, zoned for residential development, and lying adjacent to Hines subdivision, an existing residential development in Clarke County. The 39-acre tract was landlocked, without ingress or egress to a public road. Sams, a real estate broker, purchased the main tract and obtained two adjacent residential lots in Hines subdivision. He prepared a preliminary subdivision plat proposing that an access road be built over the two Hines subdivision lots connecting the main tract to a road in Hines subdivision. Sams took no action to develop the property. In March 1987, shortly after the preliminary plat was prepared, Sams received a letter from Harrison, who lived in Hines subdivision directly across the street from the two lots Sams proposed to use to provide access. Harrison was also an officer at C & S with supervisory control over the Athens branch of the bank. The letter stated that Harrison objected to the proposed use of the two lots to build an access road, and informed Sams that in Harrison’s opinion subdivision restrictive covenants over the lots would prohibit construction of the road. The letter also stated that a one-foot-wide buffer strip of land had been reserved along the side of the subdivision lots abutting the tract proposed for development for the purpose of protecting Hines subdivision from encroachment from the adjoining property. The letter did not indicate Harrison would file suit or take other action against any proposed development. Sams took the letter to his attorney, who advised him that these access problems had already been considered when he purchased the property; that Harrison’s objections had no merit, and that nothing pointed out in the letter was a legal impediment to building an access road across the two lots. Sams did not respond to the letter.

Subsequently, Sams was contacted by a real estate agent about the possibility of selling the property for development to Green, a real estate developer. The sales negotiations between Sams and Green were conducted by two real estate agents, both of whom were listed as Sams’ agents in the eventual sales contract, who conveyed offers and counter-offers between the parties. Sams and Green never met or spoke until the closing date. During the negotiations, Sams did not inform Green or the real estate agents about the letter he had received from Harrison, or about any potential problems with access to the property. Nevertheless, as attachments to the initial proposed sales contract, Green was provided with a copy of the proposed development plan indicating access across the subdivision lots, and a copy of a portion of the recorded plat of Hines subdivision showing the lots included in the sale, and reflecting the reservation of a one-foot buffer strip between the lots and the proposed development. Although Green testified that prior to signing the final sales contract he had no knowledge of a one-foot buffer or restrictive covenants which might cause potential access problems, it is clear he was concerned with access prior to signing the contract. In the initial offer made by Green, the sales contract contained a specific stipulation providing that the sale was contingent upon Green being allowed ingress and egress through the Hines subdivision lots. One of the real estate agents testified that Green requested this contingency because he was aware of problems in a previous development over placing a road across subdivision lots. Sams would not agree to this contingency, preferring that Green investigate access for himself prior to entering into the contract. Without the contingency regarding access, Green testified that, before signing the final sales contract, he satisfied himself that he could get the proposed access through the Athens/Clarke County Planning Commission, which was charged with approving the development. The second real estate agent involved in the negotiations testified that at Green’s request he spoke to a Planning Commission member and reported to Green that they determined the building codes and subdivision restrictions would not prevent the access road across the lots. In addition to being a real estate developer, Green was himself a member of the Planning Commission, and was aware that proposing access through Hines subdivision might arouse complaints from residents of the neighborhood. He made no effort to contact any residents of Hines subdivision. There is no evidence Green made any effort prior to signing the sales contract to have the title examined, or to otherwise check public records with regard to the proposed access across the subdivision lots.

Green and Sams eventually signed a sales contract dated February 20, 1988 for the main parcel plus the two lots in Hines subdivision. The contract contained no contingency as to access across the subdivision lots, nor was it contingent upon Green’s ability to obtain a loan for the purchase price. The contract did, however, provide that it was contingent on Sams’ ability to furnish marketable title, subject only to zoning affecting the property, easements of record, subdivision easements and restrictions of record, and any other restrictions and encumbrances specified in the contract. Marketable title was defined under the contract as “such title as a title insurance company, licensed to do business in the State of Georgia, will insure for its regular fee on American Land Title Association’s Owner’s Policy, Form B-1970, copyright 1969, with no exceptions, except those set out in said preprinted form and those set out in this contract.” The contract otherwise gave Green a reasonable time to have title to the property examined, and to furnish Sams with a written statement of any objections affecting title. Upon Sams’ failure to satisfy such objections within a reasonable time, the contract provided Green was entitled to cancel the sale.

After signing the sales contract, Green had his attorney search the title. His attorney immediately identified the one-foot buffer and restrictive covenants as potential problems to access over the subdivision lots, and contacted Sams’ attorney to discuss the matter. There was evidence that the one-foot buffer strip, although shown as reserved from the lots on the subdivision plat, had in fact been conveyed as part of the lots rather than retained as a buffer. This evidence, along with other evidence of legal authority for road access over restricted subdivision lots, convinced the parties that these matters were not a legal impediment to the proposed access road. During these discussions, neither Sams nor his attorney mentioned the March 1987 letter Sams had received from Harrison. Green’s attorney discussed these matters with Green prior to the closing date, which had been extended to April 15, 1988, and it was concluded that as long as title insurance could be obtained, without any exception to access, there were no title problems which would prevent conveyance of marketable title and impede the closing. Green’s attorney, an agent for various licensed title insurance companies, contacted two of these companies to explain the situation with regard to access across the lots. The first company declined to issue title insurance without an exception as to access. In consultation with the second company, Green’s attorney was able to get clearance for issuance of title insurance without exception to the proposed access. Based on this, Green made no objections as to title problems prior to the April 15 closing date.

Evidence showed Green had contacted C & S to obtain a loan for the closing, and had received a verbal commitment for the loan to be followed by written confirmation. Green’s attorney began to prepare the closing documents based on the verbal commitment and information obtained from the bank’s loan officer. Other evidence showed that C & S required mortgagee’s title insurance as a condition for the loan. On April 15, the date of the closing, but prior to issuance of a written loan confirmation, Harrison learned that the Athens C & S branch, over which he had authority, was about to fund a loan to Green for development of the property with a proposed road access over the subdivision lots across the street from his residence. Harrison testified that, especially in light of his position at the bank, he felt his private objection to development of the property was information relevant both to the bank and to the parties to the transaction, which should be revealed prior to the closing. Accordingly, he testified he told the loan officer that his objections needed to be conveyed to the parties before the closing proceeded. Other testimony showed that after Harrison learned of the loan, he threatened to sue or take other legal action, in his individual capacity, to stop the development, and on the day of the closing C & S withdrew its verbal commitment to fund the loan. Subsequently, on April 27, C & S sent an unsolicited written loan confirmation to Green, subject to being provided mortgagee’s title insurance.

The parties and their attorneys met on April 15 to discuss the situation in light of Harrison’s threat to sue, and the bank’s withdrawal of its verbal loan commitment. At this meeting, Green learned for the first time of Harrison’s March 1987 letter. The closing date was extended by agreement to May 3, 1988 on the same terms and conditions. Green’s attorney subsequently informed the title insurance company of Harrison’s threat to sue or take other legal action. After reassessing the access situation along with the added threat of litigation, the title company withdrew its authorization to issue a policy without exception as to access. On April 25,1988, Green’s attorney informed Sams’ attorney in writing that Green would not close on the property because of title problems which had rendered the title unmarketable under the terms of the sales contract. Specifically, the title objections stated in the letter were that the threat of litigation, added to the previously discussed potential access problems concerning the one-foot buffer and restrictive covenants over the lots, had caused the title to be unmarketable because the title was not one which a title insurance company will insure as defined in the sales contract. Sams took no action to satisfy or otherwise respond to Green’s title objections prior to the May 3 closing date.

In Case No. A93A0808, Green appeals from two summary judgment orders: (1) the grant of partial summary judgment against him and in favor of C & S; and (2) from the denial of his motion for summary judgment against Sams.

In Case No. A93A0809, Sams cross-appeals from two summary judgment orders: (1) the grant of partial summary judgment against him and in favor of Harrison; and (2) from the denial of his motion for partial summary judgment against Green.

In Case No. A93A0810, C & S cross-appeals from three summary judgment orders: (1) the denial of its motion for summary judgment against Sams based specifically on claims of fraud and rescission of the contract; (2) from the denial of its motion for summary judgment on all issues on Sams’ complaint; and (3) from the denial of its motion for. summary judgment against Green’s cross-claim for contribution.

In Case No. A93A0811, Harrison cross-appeals from two summary judgment orders: (1) the denial of his motion for summary judgment. against Sams based specifically on claims of fraud and rescission of the contract; and (2) from the denial of his motion for summary judgment on all issues on Sams’ complaint.

1. We first address related issues raised by Green’s appeal in Case No. A93A0808 from the denial of his motion for summary judgment against Sams; C & S’s appeal in Case No. A93A0810 from the denial of its motion for summary judgment against Sams on all issues; and Harrison’s appeal in Case No. A93A0811 from the denial of his motion for summary judgment against Sams on all issues.

Relevant portions of these motions raised the following issues: Green claimed the sales contract was not enforceable by Sams because it was contingent upon Sams’ obligation to furnish marketable title to the property; that he refused to close on the property because Sams never responded to his objections that title was not marketable; and that he did not wrongfully conspire to interfere with and breach the contract. Both C & S and Harrison claimed that they did not conspire to tortiously interfere with or breach the contract, nor were any actions they took the proximate cause of any damage claimed by Sams. C & S also claimed the sales contract was not enforceable because the title was not marketable.

The parties agreed in the sales contract that the sale was contingent on Sams’ conveyance of marketable title, subject only to zoning affecting the property, easements of record, subdivision easements and restrictions of record, and any other restrictions and encumbrances specified in the contract. Marketable title was thereafter defined as such title which a licensed title insurance company will insure for its usual fee with no exceptions, other than standard title policy exceptions, and any exceptions set out in the sales contract. Sams concedes that the type of title insurance policy referred to in the warranty of title section of the sales contract typically insures ingress and egress to the property. We cannot agree that ingress and egress in this case falls under a common title policy exception to defects created, suffered, assumed or agreed to by the insured. There is no evidence Green agreed or contracted to take conveyance of the property subject to the access problem at issue, nor can this be inferred from the mere fact that Green agreed to take the property subject to subdivision restrictions. To the contrary, it is clear that Green’s attorney contacted the title insurance company for the specific purpose of discussing the potential access problem, and initially obtained authorization for a policy to cover it without exception. The only exception set out in the sales contract arguably relevant is that title would be conveyed subject to subdivision restrictions. Even if we assume this exception applies to the issue of ingress and egress, the subdivision restrictive covenants were only one of the factors considered as part of the access problem.

Sams also argues that since the sales contract was not contingent upon providing access to the property, Green was not entitled to claim the title was unmarketable on the basis that title insurance could not be obtained without an exception for ingress and egress. The sales contract does not directly address ingress and egress from the property. Rather, the contract indirectly addresses this issue by allowing the purchaser to declare the title unmarketable if because of problems concerning access or any other problems affecting marketable title, which are not excepted to in the sales contract, a licensed title insurance company will not issue a standard policy, without exceptions, for its regular fee.

Prior to the closing date, Green was able to obtain title insurance over the property without exception to access. Sams and Green agree that just prior to the scheduled closing, Harrison conveyed a threat to sue over the proposed access into the property. Green’s attorney immediately contacted the title insurance company with this additional information. The evidence is unrefuted that, as a result of the added factor of threat of litigation, the title insurance company withdrew authorization for issuance of title insurance. In fact, the threat of litigation alone may render a title unmarketable. “A title which exposes the vendee to litigation is not a good and merchantable one if the danger thereof is apparent and real, not merely imaginary or illusory, which may be apprehended upon the basis of some fact or truth as to which there can be no ascertainment with reasonable certainty.” Mrs. E. B. Smith Realty Co. v. Hubbard, 130 Ga. App. 672, 675 (204 SE2d 366) (1974). A policy of title insurance has been defined as “the opinion of the insurer concerning the validity of title, backed by an agreement to make that opinion good if it should prove to be mistaken and a loss should result in consequence.” Insurance Law & Practice, Appleman (1981), Vol. 9, § 5201, p. 2; see U. S. Life Title Ins. Co. of Dallas v. Hutsell, 164 Ga. App. 443, 445 (296 SE2d 760) (1982); OCGA § 33-7-8. Although marketable title does not necessarily mean one which a title insurance company will insure (Keel v. Anderson, 104 Ga. App. 296, 297 (121 SE2d 505) (1961)), here it was the agreement of the parties to define marketable title in this fashion. In this case, it appears the title insurance company, after considering the potential access problem, was at first willing to insure title, including the proposed access, but after reassessing the access problems along with the added threat of litigation, the company was no longer willing to do so without an exception.

The evidence is undisputed that, for reasons other than preprinted standard title policy exceptions or exceptions in the sales contract, two title insurance companies refused to insure the property with no exception as to access. Green exercised his right under the terms of the sales contract to assert that title was unmarketable on this basis, and made these title objections in a timely manner. Sams took no action to satisfy the objections, nor has he otherwise demonstrated that the property was insurable. The evidence establishes, as a matter of law, that the contract is not enforceable by Sams since he has failed to satisfy at least one condition precedent to enforcement. Phillips v. Bacon, 245 Ga. 814, 816 (267 SE2d 249) (1980); Simmons v. Krall, 201 Ga. App. 893, 895 (412 SE2d 559) (1991).

Accordingly, in Green’s appeal in Case No. A93A0808, the trial court erred by failing to grant summary judgment in favor of Green on his claim that the contract was not enforceable by Sams. It follows that in C & S’s cross-appeal numbered A93A0810 the trial court erroneously denied the bank’s motion for summary judgment on the same issue.

Moreover, we find-no basis to conclude there was a conspiracy to interfere with and breach the contract. There was no direct evidence of a conspiracy between Green, C & S and Harrison to tortiously interfere with and breach the contract. Rather, Sams relies on the circumstances, claiming Harrison used his position and influence at the bank to cause C & S to withdraw its verbal loan commitment, and that Green cooperated by subsequently refusing to close because he feared Harrison and the bank would retaliate against him by withdrawing future credit. Even assuming there was evidence Harrison may have improperly used his position and influence at the bank to cause C & S to withdraw its verbal loan commitment, the evidence shows the sale failed to close because of access problems and the threat of litigation resulting in withdrawal of title insurance and lack of marketable title, not the withdrawal of the loan commitment, which in any event was made subject to mortgagee’s title insurance. On the other hand, Harrison was legally entitled to voice his private objections to the development, and to threaten suit in his individual capacity, and there was nothing wrongful in disclosure of this information to the bank and the closing parties. There is no evidence Green colluded with or succumbed to pressure from the bank or Harrison in refusing to close the sale.

The gravamen of any civil conspiracy claim is not that the defendants acted in concert to damage the plaintiff, but that such action was tortious conduct which proximately caused injury to the plaintiff. Ray v. Atkins, 205 Ga. App. 85, 90 (421 SE2d 317) (1992). Here, the actions taken by the defendants were either legal, or not the proximate cause of the damage alleged by the plaintiff. The circumstantial evidence pointed to by Sams from which he claims a conspiracy may be inferred is purely speculative. “ ‘(A)n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ ” Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990).

Decided June 28, 1993 —

Reconsideration denied July 14, 1993 —

Galis & Packer, Denny C. Galis, Kennedy R. Packer, for Green.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, Gerard & Matthews, William T. Gerard, for Sams.

Chilivis & Grindler, Nickolas P. Chilivis, John K. Larkins, Jr., for Harrison.

Erwin, Epting, Gibson & McLeod, Larry V. McLeod, Andrew H. Marshall, for C & S.

Accordingly, as to Green’s appeal in Case No. A93A0808; the cross-appeal of C & S in Case No. A93A0810; and Harrison’s cross-appeal in Case No. A93A0811, the evidence shows, as a matter of law, that none of the co-defendants acted alone or in a conspiracy to tortiously interfere with and cause the breach of the sales contract. The trial court erred in denying summary judgment in favor of Green, C & 5 and Harrison on this claim.

2. In view of the above rulings, it is unnecessary to address any other defenses to enforcement or specific performance of the contract, nor need we address any claims relating to the amount of or responsibility for damages. Accordingly, Sams’ cross-appeal number A93A0809 claiming the trial court erred by denying his motion for partial summary judgment against Green’s other defenses, and by granting partial summary judgment against him in favor of Harrison on a damage issue is dismissed as moot. Green’s appeal in Case No. A93A0808 from the grant of partial summary judgment in favor of C 6 S on his cross-claim is dismissed as moot, along with the cross-appeal of C & S in Case No. A93A0810 from the denial of its motion for summary judgment on the same cross-claim. The remaining claims of C & S and Harrison in cross-appeals A93A0810 and A93A0811 have either been addressed in Division 1 or rendered moot thereby and dismissed. OCGA § 5-6-48 (b) (3).

Judgment reversed in part and case dismissed in part in Case No. A93A0808. Case No. A93A0809 dismissed. Judgment reversed in part and case dismissed in part in Case No. A93A0810. Judgment reversed in part and case dismissed in part in Case No. A93A0811.

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

       The direct appeal by Green from the trial court’s December 17, 1991 order granting partial summary judgment against him supports consideration of the remaining appeals not otherwise directly appealable in this action, which are tied to the direct appeal. The otherwise non-direct appeals assert related claims in the same action, and on which summary judgment was contemporaneously denied or granted in the same court order. Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980); Costanzo v. Jones, 200 Ga. App. 806, 811 (409 SE2d 686) (1991); OCGA § 9-11-56 (h); compare Fulton v. Pilon, 199 Ga. App. 861, 862 (406 SE2d 517) (1991). Accordingly, Sams’ motion to dismiss these appeals for lack of appellate jurisdiction is denied.


text:
    A93A1159.
    TAFT v. TAFT.
    (433 SE2d 667)
   Birdsong, Presiding Judge.

Appellant/defendant Wilburn Taft appeals the $130,000 judgment awarded to his adult son, appellee/plaintiff Vance Taft. Appellee brought suit for injuries sustained when attacked by appellant’s five- to nine-month-old, 600 pound bull 'when attempting to corral it for market. Appellee was a business invitee on his father’s premises at the time, helping his father load the bull and hogs for market. Held:

1. Bulls generally are strong and some bulls are vicious notwithstanding their classification as domestic (farm) animals. Nevertheless, it cannot “be said as a matter of law, or that it is judicially known, that bulls, as a class, are dangerous.” Lander v. Shannon, 268 P 145, 147 (SC Wash. 1928). In Duren v. Kunkel, 814 SW2d 935, 937-938 (1) (SC Mo., Banc 1991), citing Restatement (Second) of Torts, § 509, Comment e (1977), it was concluded: “ ‘Bulls are more dangerous than cows and steers; stallions are more dangerous than mares or geldings; rams are more dangerous than ewes and lambs. However, these animals have been kept for stud purposes from time immemorial so that the particular danger involved in their dangerous tendencies has become a normal incident of civilized life . . . (T)he virility which makes them dangerous is necessary for their usefulness in performing their function in the socially essential breeding of livestock, (and) justifies the risk involved in their keeping. Therefore the law has not regarded bulls, stallions and rams as being abnormally dangerous animals.”

This pragmatic legal approach, acknowledging the facts of life of animal husbandry, has been recognized tacitly in construing OCGA § 51-2-7 (formerly Code Ann. § 105-110). In this state, “the owner of a vicious or dangerous animal, who allows the same to go at liberty, is liable to one who sustains injury as a result of the vicious or dangerous tendency of the animal only in the event the owner knows of its vicious or dangerous character. If he does not know this, he will not be liable for an injury which is not the usual and natural consequence to be anticipated from allowing an ordinary animal of that kind to go at large.” (Citations, emphasis and punctuation omitted.) Flowers v. Flowers, 118 Ga. App. 85 (2) (162 SE2d 818).

Appellee testified he could have closed the gate in time to prevent the bull from running out if appellant had fastened it like it was fastened that morning. Generally, except in clear and palpable cases, questions of proximate cause, viciousness of the animal, assumption of risk, superior or equal knowledge, contributory negligence, and negligence of the plaintiff are questions for the jury. Compare Sutton v. Sutton, 145 Ga. App. 22 (243 SE2d 310) and Van Harlengen v. Bearse, 26 Ga. App. 473 (2) (106 SE 306) with McNish v. Gilbert, 184 Ga. App. 234 (361 SE2d 231).

2. Appellant asserts the trial court erred in failing to charge the jury on the definition and elements of proximate causation. Review of the record reveals that the trial court failed to define proximate cause or to instruct adequately the jury as to the meaning of this concept. Even if negligence exists, liability does not attach unless such negligence “is the proximate cause of the injury sustained.” Cline v. Kehs, 146 Ga. App. 350, 352 (6) (246 SE2d 329). Thus, in every jury determination involving damages which result from negligence (both in regular and special jury verdicts), it is essential that the trial judge instruct the jury “as to the legal meaning of proximate cause and its application to the facts.” Id. As in Cline, supra, failure of the trial court to charge adequately on proximate cause requires a reversal, notwithstanding appellant’s lack of a timely and proper request for a specific proximate cause charge.

Decided June 25, 1993 —

Reconsiderations denied July 14, 1993 —

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., Joseph E. East, for appellant.

Evans & Brantley, William V. Evans, Johnny W. Brantley, for appellee.

3. Appellant raises an issue as to proof of lost earnings; however, cost of hiring farm help raises an issue of proof as to an award of damages for necessary expenses rather than a claim of damages based on lost earnings. OCGA § 51-12-7; compare City of Atlanta v. State Farm Fire &c. Co., 160 Ga. App. 822, 823 (4) (287 SE2d 665); Sam Finley, Inc. v. Barnes, 156 Ga. App. 802, 803 (3), 804 (7) (275 SE2d 380); and Lawrence v. Atlanta Gas-Light Co., 49 Ga. App. 444 (3) (176 SE 75).

Judgment reversed.

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


text:
    A93A1295.
    WADE v. CRANNIS et al.
    (433 SE2d 669)
   Birdsong, Presiding Judge.

Henry Wade appeals from the granting of summary judgment to defendants Michael L. Crannis and Allstate Insurance Company. This personal injury suit arises out of an automobile collision wherein a vehicle driven by Crannis collided with the rear end of a vehicle occupied by Wade.

The Crannis car was a covered vehicle under the terms of an insurance policy issued by appellee Allstate to insured, Lewie J. and Sandra M. Richardson. Approximately two years before suit was commenced, Allstate tendered appellant a check for $3,450 which Wade cashed. The front of this check contained this provision: “Final settlement of any and all claims arising from bodily injury caused by accident on 01/04/90.” Allstate employee, Alice Coleman, stated by way of affidavit that following negotiations she and appellant Wade agreed on settlement of his claim for $3,450; Coleman advised Wade this was a final settlement of all his claims arising from the accident in January 1990, and Wade cashed the settlement check.

Appellees based their motion for summary judgment on the affirmative defense of accord and satisfaction; the trial court granted their motion for summary judgment on that ground. Held'.

1. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) is controlling regarding the standards for grant of summary judgment in behalf of a party who would not bear the burden of proof at trial. Mere allegations of facts in pleadings and briefs unsupported by evidence of record cannot be considered on appellate review. Behar v. Aero Med Intl, 185 Ga. App. 845, 846-847 (1) (366 SE2d 223).

2. At the motion hearing, the trial court stated: “The policy should be construed based upon its execution in Virginia and the residency of the policyholders.” The record in its totality reveals that appellees asserted the insurance contract was controlled by application of Virginia law, and in essence attempted to prove such law differed from that of Georgia (OCGA § 33-7-12 (a)) as to the issue of notice of lack of an insured’s consent to settlement. The record also reflects appellant posed a timely objection at the motion hearing regarding appellees’ “argument about Virginia,” on the grounds of the delayed serving of a certain affidavit containing an expression of opinion as to Virginia law, as appellant’s counsel had “not had an opportunity to deal with [the contents of the affidavit] in any fashion.” The trial court subsequently stated it would not consider the affidavit. But, appellees’ counsel also stated during the course of the hearing that “[t]here is no . . . statute in Virginia” similar to OCGA § 33-7-12 (a). The objection posed by appellant, which included an assertion of lack of time to deal with the contents of the affidavit, is sufficiently broad to encompass not only an objection as to untimely affidavit serving but also as to lack of reasonable notice of intent to raise an issue of foreign law. “A party who intends to raise an issue concerning the law of another state . . . shall give notice in his pleadings or other reasonable written notice.” OCGA § 9-11-43 (c).

Although neither case is directly in point, under the attendant circumstances, we find Plant v. Trust Co. of Columbus, 164 Ga. App. 387 (297 SE2d 37) more persuasive than Shannon v. Toronto-Dominion Bank, 168 Ga. App. 279 (308 SE2d 682). In this case, no formal notice was given of appellees’ intent to raise the issue of foreign law by way of pleadings or otherwise. The record reflects that the first notice appellant received was when he was served the morning of the motion hearing with defendants’ reply brief to plaintiff’s brief in opposition to defendants’ motion for summary judgment and accompanying affidavit of the Allstate employee. Although this affidavit had been filed four days earlier, such procedure standing alone would not under the attendant facts provide reasonable notice, as appellant was afforded no reasonable period of time in which to research and prepare to litigate the Virginia law issue. It appears the legislature intended that an opposing party be given reasonable notice to provide adequate preparation time for litigation of foreign law issues. Reasonable notice was not provided in this instance. Compare Fortson v. Fortson, 204 Ga. App. 827, 828 (1) (421 SE2d 106). “Where a party has failed to provide sufficient notice of intent to rely upon foreign law, the law of this state shall apply.” Id. This is a lex fori rule “separate from those rules allocating burdens of proof at trial and on motion for summary judgment.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680).

In granting summary judgment the trial court concluded that it appeared plaintiff has retained the proceeds of the settlement, and that the instant action is barred by the doctrine of accord and satisfaction. The only reasonable inference that can be drawn from the record is that after cashing the settlement check appellant retained the proceeds; no reasonable inference to the contrary can be drawn from this record. Further, at the motion hearing, appellees’ counsel stated in his place, without contradiction: “But I don’t think there [is any] dispute that he signed the check and retained the proceeds.” The ruling of the trial court is not incorrect on its face. Compare Hardigree v. McMichael, 181 Ga. App. 583, 584 (1) (353 SE2d 78), holding that “‘[t]he delivery and acceptance of a check as a stated amount in full . . . settlement of a claim, whether the amount of the claim is established or uncertain, amounts to an accord and satisfaction.’ ”

By advancing adequate evidence of an accord and satisfaction by way of final settlement and thereby pointing out by reference to the affidavits and other documents in the record that there is an absence of evidence to support the nonmoving appellant’s case, appellees discharged their burden under current summary judgment law; they successfully pierced appellant’s pleadings. Lau’s Corp., supra at 491. When a moving party so discharges its burden, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Emphasis supplied.) Id. This appellant has not done. Appellant has failed to point to any specific evidence establishing that OCGA § 33-7-12 (a) is the Georgia law presumed to be applicable in this case. First, appellant has failed to point to any specific written policy provision, contained in the record, establishing that the insurance contract contained a provision vesting insurer with the right to compromise or settle, this being a statutory prerequisite under OCGA § 33-7-12 (a). Secondly, appellant has failed to point to any specific evidence of record establishing that the settlement was in fact reached without the consent of the insured. Thus, appellant failed to point to specific evidence giving rise to a triable issue and supporting his claim that settlement was null and void pursuant to OCGA § 33-7-12. Further, “a grant of summary judgment must be affirmed ... if it is right for any reason.” Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61).

Decided June 25, 1993 —

Reconsideration denied July 14, 1993 —

Jett & Liss, Joel I. Liss, for appellant.

Long, Weinberg, Ansley & Wheeler, John K. Train IV, Earl W. Gunn, for appellees.

Henry v. Anderson, 164 Ga. App. 110 (296 SE2d 410) and Garrett v. Heisler, 149 Ga. App. 240 (253 SE2d 863) are distinguishable as each was based on the summary judgment law pertaining to movants/defendants prior to Lau’s Corp., supra.

In view of this holding, we need not address appellees’ assertions that appellant is seeking an unauthorized double recovery and that OCGA § 33-7-12 (a) is designed for the protection of an insured and does not on its face apply to situations not involving the claims of an insured.

Judgment affirmed.

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


text:
    A93A1324.
    GRIFFIN et al. v. LOPER.
    (433 SE2d 653)
   Birdsong, Presiding Judge.

Appellants/plaintiifs, David A. Griffin and Carolyn Griffin, appeal from the judgment entered on July 22, 1992, in behalf of appellee/defendant. The notice of appeal was filed August 20, 1992, while a motion for new trial, filed in the lower court on August 19, 1992, was pending. On October 12, 1992, the lower court entered an order vacating the motion for new trial on the grounds that as the notice of appeal had been filed it was without jurisdiction to rule on the motion. Held:

“ ‘ “A notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.” ’ ” Booker v. Amdur, 186 Ga. App. 276 (367 SE2d 94); accord Auld v. Weaver, 196 Ga. App. 782 (397 SE2d 51). It matters not whether the motion for new trial was filed by appellant or another. Booker, supra. Rich v. Ga. Farm &c. Ins. Co., 176 Ga. App. 663 (1) (337 SE2d 370), where motion for new trial was filed subsequent to the notice of appeal, is distinguishable.

Moreover, even though a notice of appeal may divest the trial court of jurisdiction, such divestiture does not become effective during the period in which a motion for new trial may be filed. If a motion for new trial is timely filed as provided in OCGA § 5-5-40, the divestiture of jurisdiction is then delayed until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired. Furthermore, the trial court may, on its own motion, grant a new trial as provided in OCGA § 5-5-40 (h) within the time in which a motion for new trial may be filed “even though a notice of appeal has been filed.” Housing Auth. &c. v. Geter, 252 Ga. 196, 197 (312 SE2d 309); compare Sharif v. Tidwell Homes, 252 Ga. 205 (312 SE2d 114).

In civil cases, this type of premature direct appeal is not brought to maturity; neither it nor the original notice of appeal is otherwise perfected by the subsequent overruling, dismissal or vacation of the motion for new trial. Auld, supra. Rather, where a notice of appeal is filed while a previous new trial motion is pending, the subsequent withdrawal, dismissal or vacation of the motion for new trial by the party who filed it is considered a disposition of the motion pursuant to OCGA § 5-6-38 (a), so as to commence the running of the 30-day period for the proper filing of an appeal. Booker, supra.

As a notice of appeal has not been filed within 30 days of the final disposition by vacation of the new trial motion, OCGA § 5-6-38 (a), the appeal must be dismissed. Auld, supra; Booker, supra.

Appeal dismissed.

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

On Motion for Reconsideration.

Appellant filed a motion for reconsideration asserting that the motion for new trial in this case was filed subsequent to the notice of appeal. However, appellant has not initiated any request to supplement or correct the record to establish the claimed filing sequence. See generally OCGA §§ 5-6-41; 5-6-48. A record cannot be supplemented or modified by means of a motion for reconsideration or an attachment thereto. Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 351 (411 SE2d 75).

Re-examination of the record establishes: (a) Notice of new trial was filed at 4:48 p.m., August 20, 1992. (b) Appellants made an admission in judicio in their notice of appeal that the motion for new trial in fact was filed on August 19, 1992. (c) The motion for new trial does not contain a filing stamp and was signed and served by mailing on counsel on August 19, 1992. (d) The motion for new trial was, at some unidentified point in time, attached to the rule nisi; the rule nisi bears a legible filing stamp with the date/time of “1992 AUG 20 PM 4: 5” — which on its face shows it was filed at five minutes after 4 p.m.; however, because no “0” appears in the space in front of the “5,” it is not beyond the realm of possibility that the filing stamp may be incomplete, (e) The rule nisi reflects on its face that a “show cause” hearing was ordered, “the attached motion for new trial having been read, considered, and filed” (emphasis supplied); thus, the rule nisi establishes that the trial judge already had read and considered a “filed” motion for new trial before the rule nisi was signed and filed, that is, the rule nisi establishes that the motion for new trial was filed before the rule nisi was filed, (f) On October 12, 1992, the trial court, noting that “because plaintiffs have filed a notice of appeal,” concluded it was without jurisdiction to proceed with the motions for new trial and to set aside and vacate those motions.

The state of the record before us currently does not support appellant’s claims as to filing sequence. Moreover, if the motion for new trial was filed within the statutory period for filing but after the filing of the notice of appeal, the trial court would not have been divested of jurisdiction to entertain the motion for new trial (see Housing Auth. &c. v. Geter, 252 Ga. 196, 197 (312 SE2d 309); Watkins v. M & M Clays, Inc., 199 Ga. App. 54, 58 (4) (404 SE2d 141)).

As appellant failed to support his factual contentions of filing sequence, we deny his motion for reconsideration; however, as a necessary aid to our jurisdiction (Ga. Const. 1983, Art. VI, Sec. I, Par. IV) and, in the interest of controlling our judgments to make them conformable to justice (OCGA § 15-1-3), the judgment line in this case is hereby modified to “[a]ppeal dismissed without prejudice.” Appellant may seize the opportunity to seek diligently correction or supplementation of the trial record. If the record can be corrected or supplemented to establish that filing of the notice of appeal was subsequent to filing the motion for new trial (in which event only appellant may then withdraw the admission in judicio that said motion for new trial was filed on August 19, 1992), appellant may, without undue delay, file a motion with the trial court to vacate its “Order on Plaintiff’s Motion For New Trial and Motion to Set Aside.” See generally Housing Auth., supra; Watkins, supra. Within 30 days of any trial court approved correction or modification of the record to establish filing sequence as to the documents at issue, the trial court’s disposition of any new motion to vacate its order, or any ruling by the trial court on the merits of the motion for new trial, whichever occurs last in time, appellant may re-initiate appeal of this case. Ga. Const. 1983, Art. VI, Sec. I, Par. IV.

Motion for reconsideration denied; appeal dismissed without prejudice.

Decided June 24, 1993 —

Reconsideration denied July 14, 1993.

Howard E. Alls, for appellants.

Beckmann & Pinson, Walter W. Ballew III, for appellee.


author: Pope, Chief Judge.

text:
    A93A0083.
    HILDEBRAND v. THE STATE.
    (433 SE2d 443)
   Pope, Chief Judge.

Eric Hildebrand and three companions were charged with burglary and criminal damage to property in the second degree for breaking and entering a storage facility belonging to the Sunset Hills Country Club in Carroll County and removing six golf carts belonging to the club and one club member, which they drove over the golf course and grounds, running through small trees and shrubbery and into one another, causing damage in excess of $500. The other three men entered pleas of guilty. Hildebrand pled not guilty, was tried by a jury which convicted him on both counts, and was sentenced to five years of probation on each count, a fine and restitution. He appeals from the denial of his motion for directed verdict of acquittal on the charge of criminal damage to property, from the denial of his motion to strike certain evidence and because of allegedly prejudicial and improper argument made by the prosecutor.

1. The evidence showed that on September 2, 1991, a group of young men had been drinking together in an apartment near the golf club. Four of them, including defendant, decided to walk over to the club where they broke in and removed three golf carts from the storage area. Defendant did not break in or enter the storage building, but he rode on one of the carts as a passenger after it was removed and remained on it during the joyride around the golf course. He testified that he did not jump off when the drivers of the carts began destroying club property because they were going about 30 or 35 mph and he did not want to get hurt. After two of the carts were driven into a lake, all four men returned to the friend’s apartment. The three drivers later returned to the golf course, removed two more carts from the storage area and participated in another destructive joyride, but defendant refused to accompany them.

OCGA § 16-7-23 (a) (1) provides that “[a] person commits the offense of criminal damage to property in the second degree when he . . . [ijntentionally damages any property of another person without his consent and the damage thereto exceeds $500.” Defendant contends that he was entitled to a directed verdict of acquittal because the prosecutor did not introduce any evidence as to the amount of alleged damage done by him to any property, and did not delineate what damage was done on the first trip and what was done on the return trip when defendant was not present. He also complains that while the State relied upon the testimony of the individual whose privately owned cart was harmed to prove the $500 in damage, he was not indicted for causing damage to the privately owned property, and thus the State totally failed to establish an essential element to prove the charge of criminal damage to property in the second degree. We agree.

The only evidence presented by the State involving the amount of damage incurred by the golf club was from the chairman of the golf club’s board of directors. He testified that damage had occurred “to several of our . . . golf carts which had been purchased I think just six months prior to the occasion, plus the private cart of a Mr. Madden, plus damage to the building where [they] are stored or two storage facilities. One storage facility the door was kicked in and so forth. . . . There was some additional damage when they were driving into trees, shrubs and so forth.” When asked to tell the jury the amount of damage incurred, this witness replied: “There were several figures, and I’d have to refamiliarize myself exactly with it, and I heard them over time. At least four or five thousand dollars worth of damage to the carts that the club owned, excluding the damage to the private cart. And then I can’t recall the damage to the other property and so forth. That’s the best of my memory.”

“ ‘The testimony of the owner of the property as to his opinion of the value of the property, without giving his reasons therefor, is inadmissible in evidence as it has no probative value. (Cits.)’ [Cit.] However, when the witness pays the monetary amount necessary to make his property whole again, he thereafter is not stating his opinion as to the value, but is stating a fact. [Cit.]” Holbrook v. State, 168 Ga. App. 380, 381 (1) (308 SE2d 869) (1983). Here the State offered no proof of any amounts paid for repair of the property damaged and presented no photographs depicting the property damaged, as was done in Holbrook, so there was no competent evidence from which the jury could determine that the value of the damage for which defendant was responsible was in excess of $500, an essential element of the indicted crime. See also Terry v. State, 195 Ga. App. 505 (1) (394 SE2d 132) (1990). Therefore, the trial court erred in denying defendant’s motion for directed verdict of acquittal on this charge. Watkins v. State, 191 Ga. App. 325 (1) (382 SE2d 107) (1989); Porter v. State, 163 Ga. App. 511 (1) (295 SE2d 179) (1982).

2. Our reversal of the conviction of criminal damage to property in the second degree renders moot defendant’s objection concerning admission of evidence as to the amount of damage done to the privately owned golf cart.

3. Defendant contends that the prosecutor made several improper and prejudicial statements during closing argument to which objection was made, and that it was reversible error for the trial court to refuse to give curative instructions to the jury.

(a) Defendant first asserts that the prosecuting attorney improperly and falsely accused him of being “drunk [and] having a good time like the rest of them,” because there was no evidence that he was drunk. There was evidence, however, that all four of the participants had been drinking; some of them admitted they were inebriated and defendant acknowledged that he had been drinking with his friends from 10:00 p.m. until about 2:00 or 3:00 a.m. and had consumed “about two or three” beers. “ ‘ “What the law forbids is the introduction [of evidence] into a case, by way of argument, of facts not in the record and calculated to prejudice the accused.” (Cit.) “While counsel should not be permitted in argument, to state facts which are not in evidence, it is permissible to draw deductions from the evidence; and the fact that the deductions may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel, and not for rebuke by the court.” (Cit.)’ [Cit.]” Murphy v. State, 203 Ga. App. 152, 154 (2) (416 SE2d 376) (1992).

(b) Defendant further asserts that the prosecutor was allowed to impermissibly express her personal opinion about his alleged guilt by stating to the jury: “He didn’t tell you the truth. You can do what you want. You are the conscience of the community. If you want to believe Mr. Hildebrand, if you want to believe his story and if you want to disregard all the State’s evidence, you have the right to do that. You took an oath to do what you think is right. And if you feel he’s not guilty, y’all go back there and find him not guilty. But it’ll be the wrong decision. I’m telling you that. I am asking you to find him guilty because he’s guilty. He’s honestly guilty.” Defendant maintains that by so stating the prosecutor improperly interjected the authority of her office into this argument and led the jury to believe that she had information unavailable to them, and it was error for the trial court to fail to instruct the jury to disregard her statement of personal opinion. The trial court ruled that while this was a good point, he had not heard her state an opinion.

“Although the prosecuting attorney is prohibited from stating her personal opinion, she may make permissible inferences from the evidence. [Cit.]” Pittman v. State, 172 Ga. App. 22, 23 (2) (a) (322 SE2d 71) (1984). Directory Rule 7-106 (C) (3) of the Canons of Ethics of the State Bar of Georgia, the only authority to which defendant refers, is not applicable as it simply states that a lawyer appearing in her professional capacity before a tribunal shall not assert her “personal knowledge of the facts in issue, except when testifying as a witness.” Section 2, State Bar of Ga. Handbook, p. 68. Defendant made no objection that the prosecutor was asserting personal knowledge of any facts in issue and, absent citation to any legal authority holding that an expression of the State’s belief in the guilt of the accused on trial is impermissibly prejudicial, we are not persuaded by defendant’s conjectural arguments. Indeed, we do not comprehend how the jury could perceive that the prosecutor would think otherwise.

Regardless of how the role of counsel for the State is characterized, the prosecuting attorney “is first and foremost an advocate who is attempting to persuade the jury to return a guilty verdict rather than an acquittal.” Jones v. State, 198 Ga. App. 264, 265 (401 SE2d 299) (1990). “Moreover, the State may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard. Therefore, the prosecutor’s argument was not improper.” (Citations and punctuation omitted.) Bowen v. State, 203 Ga. App. 371, 374 (5) (417 SE2d 18) (1992).

(c) Finally, defendant complains that after it had been stipulated that the prosecutor would allude to only three carts having been taken from the storage facility in her closing argument, she blatantly breached the stipulation and argued that five carts were taken while the defendant was at the scene. Defendant argued at trial that he was an innocent bystander because only three carts were removed during the first excursion to the golf club, whereas had he been involved in the burglary he would have gotten one for himself. He protests that since his closing argument had already been made, this tactic functionally deprived him of a closing argument premised upon his primary defense to the burglary charge. Defense counsel sought to have the trial court correct the misstatement by telling the jury that the evidence showed only three golf carts were taken out on the first trip. The judge stated he could not make such a correction without commenting on the evidence, which he was not allowed to do; and he would not inform the jury what the evidence was, as that was the job of the attorneys in closing arguments, nor would he talk about the evidence in terms of telling the jury what they had to find. Defense counsel commented that this ruling was “unfair,” which the court noted for the record, but sought no further curative action and did not move for a mistrial.

We do not approve of a prosecuting attorney stipulating to a certain set of facts and surprising the defense by arguing another. However, “ ‘ “the trial court has the right and duty to govern the scope of argument by counsel both prior to and after the presentation of evidence. The proper range of comment by counsel is a matter within the discretion of the trial court.” (Cit.)’ [Cit.] ‘ “This court will not disturb a court’s ruling on a [request for curative instructions] in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve a defendant’s right to a fair trial. (Cit.)” (Cit.)’ [Cit.]” Bowen, supra. We find no manifest abuse of discretion in the trial court’s refusal to give the curative instructions sought here, and no motion for mistrial was made.

4. Defendant asked for a jury instruction that a person’s approval of other persons’ unlawful conduct does not make the person a party to the crime, and enumerates as error the trial court’s refusal to give his requested charge. The court overruled defendant’s objection on the ground that the instructions given adequately covered this principle, although not in the specific language requested. We agree, and find no error. Jenkins v. State, 201 Ga. App. 395 (2) (411 SE2d 122) (1991) .

“Under OCGA § 16-2-20 (a) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Bailey v. State, 203 Ga. App. 133, 135 (1) (416 SE2d 151) (1992) . The charge given by the trial court included substantially the same language approved in Bailey.

“If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor [s], he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.” (Citations, punctuation and emphasis omitted.) McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991). The evidence was undisputed that defendant arrived with three friends who removed the carts, and that he rode around in one of the carts with them. Moreover, he made no attempt to get off the cart or leave the scene of the crime, and did nothing to deter the burglary or the destruction of property. The defendant’s own testimony, when considered with that of the participants who pled guilty to the burglary, amply supports the jury’s conclusion that he was a party to the crime and guilty of burglary beyond a reasonable doubt under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Lewis v. State, 199 Ga. App. 97 (1) (403 SE2d 814) (1991).

Decided July 14, 1993.

Gary P. Bunch, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


author: Smith, Judge. Blackburn, Judge,

text:
    A93A0600.
    WHITE v. FAYETTE RE-BAR, INC.
    (433 SE2d 715)
   Smith, Judge.

Johnny White, the employee of a subcontractor on a construction project, brought suit against Fayette Re-Bar, Inc., another subcontractor on the project, when he was injured on the job. Summary judgment was granted in favor of Fayette.

The record reveals that Fayette was in the business of assembling steel re-bar posts that provide a foundation for concrete columns, and was a subcontractor on a project in Rockdale County. It did not supply the structural steel, but erected the posts using plans and specifications provided to it. White was employed by Systems Forming, Inc., another subcontractor, as a “column man,” which entailed erecting a construction form around the re-bar post, into which concrete was poured to form a column.

The plans and specifications for the Rockdale County project called for using reinforcement steel in the base of the columns that was of smaller diameter than that called for in the columns, which was unusual. Fayette’s foreman on the job, Brian Barfield, testified that he made inquiry of representatives of both the general contractor and the architectural firm regarding the unusual nature of this specification, and was told to proceed according to the plans and specifications because it was an engineering decision to construct the re-bar posts in the manner called for by the plans.

The column men generally climbed up the re-bars to place the forms on them. However, because the smaller re-bars were used in the base, they were unstable and unsafe to climb. White recognized this himself prior to being injured, and he had heard of an incident in which a column had fallen on his foreman on the same job site. In addition, Barfield testified he had warned the Systems Forming foreman that the re-bars were not stable and probably would not support a person. White was injured when he climbed a re-bar to brace it in order to put his forms in place. The re-bar bent over, and he fell.

Under Georgia law, if a contractor does not negligently perform its work but competently complies with the plans and specifications with which it is provided, it cannot be held liable for injury to a third party. PPG Indus. v. Genson, 135 Ga. App. 248 (2) (217 SE2d 479) (1975). The exceptions to this rule “for inherently or intrinsically dangerous work, for nuisances per se, and for work so negligently defective as to be imminently dangerous to third persons, apply in cases where the contractor is guilty of negligence in the performance of its work,” and not to a non-negligent contractor. David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990). The single exception applicable to a non-negligent contractor is that such a contractor who has expertise in the design of the type of work being done may not ignore defects in the design from which it is to work. See Shetter v. Davis Bros., 163 Ga. App. 230 (293 SE2d 397) (1982).

It is undisputed that Fayette erected the re-bar posts in strict compliance with the plans and specifications. The affidavit of its president states that Fayette has no expertise in design or specifications of re-bar posts, and White offered no evidence to rebut this statement under oath. Having démonstrated an absence of evidence to support liability on its part, Fayette was properly granted summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur with the majority opinion, as this case is controlled by David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990).

As noted by the majority opinion, where a contractor does not negligently perform its work and completes the work according to plans and specifications provided by the owner, the contractor generally is not liable for injuries to third parties resulting from the defective design of the work. PPG Indus. v. Genson, 135 Ga. App. 248 (217 SE2d 479) (1975). An exception to that general rule, however, is that a contractor who is an expert in the design of the type of work performed is not “entitled to put on blinders and ignore serious and dangerous defects in a design given to the contractor to execute.” Shetter v. Davis, 163 Ga. App. 230, 231 (293 SE2d 397) (1982).

It appears to this writer that this exception should not be limited to expert contractors, as opposed to non-expert contractors who are aware of the dangerous design or resulting condition. No compelling reason exists for distinguishing between expert contractors who are attributed knowledge of a defective or dangerous design by virtue of their status as expert, and a non-expert contractor who has actual knowledge of the danger and proceeds to construct it. Although it is not a factor in the instant case, as it was uncontroverted that Fayette Re-Bar, Inc. was not an expert in designing re-bar posts. This flaw in the subject rule should be addressed. The needed expansion can only be made by the Supreme Court and this court is bound by David Allen Co. v. Benton, supra, until changed by said court. McLin v. Harvey, 8 Ga. App. 360, 363 (69 SE 123) (1910).

Decided July 14, 1993.

Moffett & Henderson, F. Glenn Moffett, Jr., L. Prentice Eager III, D. Kevin Wheeler, for appellant.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Eric D. Miller, for appellee.


text:
    A93A1602.
    JOHNSON v. THE STATE.
    (433 SE2d 717)
   McMurray, Presiding Judge.

Defendant Johnson appeals his conviction of seven counts of selling cocaine. Held:

1. The first enumeration of error contends that the evidence was insufficient to authorize defendant’s conviction. Each of the offenses of which defendant was convicted involved small street purchases of cocaine by undercover officers. The crimes occurred over six months prior to trial and the officers involved had made numerous purchases of illegal contraband unconnected with defendant since the purchases at issue in the case sub judice. Defendant argues that under these circumstances the officers’ identification testimony was suspect and unreliable. Nonetheless, the undercover officers identified defendant as a seller of cocaine in each of the transactions at issue. “ ‘(Defendant’s) argument addresses itself to the credibility of the witnesses, which is a matter within the province of the jury.’ Levitt v. State, 201 Ga. App. 63 (1) (410 SE2d 170) (1991). ‘While the jury can and must weigh and analyze the evidence, an appellate court is restricted to determining whether or not there is sufficient evidence to support the verdict of guilty.’ Causey v. State, 154 Ga. App. 76, 77 (267 SE2d 475) (1980).” Robinson v. State, 204 Ga. App. 637 (419 SE2d 926). The evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of each of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hill v. State, 205 Ga. App. 475 (1) (422 SE2d 564).

2. Defendant also contends that the trial court failed to make adequate inquiry into his competency to stand trial. Upon the call of the case, defense counsel informed the trial court that defendant was “brandishing” an orange tag that indicated he had been recently admitted to a mental health facility and that counsel could not make sense of him. There had been no plea of incompetence to stand trial filed on behalf of defendant pursuant to OCGA § 17-7-130. Nonetheless, when evidence indicating incompetency is presented during trial, the trial court has a duty to inquire into the issue of competency. Holloway v. State, 257 Ga. 620, 621 (2) (361 SE2d 794).

The trial court proceeded to elicit the statement of defense counsel that over the preceding six months he had talked to defendant almost on a daily basis and had seen him four times, including as recently as the previous week, and that over that period of time defendant had cooperated with him (counsel) and had not exhibited the abnormal conduct he was displaying in court. The defense counsel had no evidence to submit on the competency issue and the trial court found that defendant was putting on an act, and was capable of assisting counsel with his defense.

Shortly thereafter, the prosecuting attorney announced that he had just discovered a witness who could shed some light on the competency issue. The State then presented the testimony of a criminal defendant in an unrelated case who testified that approximately four months previously he had been in jail in the same cell as defendant, and that defendant had told him of his plan to play crazy when he went to court.

Furthermore, the trial court later noted for the record his observation of defendant during the trial, stating that defendant had carefully observed the proceedings, actively communicated with his attorney, and responded appropriately to the events in the courtroom. Based on the observation of defendant during the trial, the trial court restated its conclusion that defendant was capable of understanding the nature of the proceedings and assisting his attorney.

On motion for new trial, defendant presented evidence which showed his visit to a health facility during the early morning hours of the trial date and that he had complained of hallucinations and voices telling him to kill himself. However, this evidence also indicated that there was no evidence of psychosis in addition to defendant’s report of visions and voices.

On appeal, defendant maintains that he was not afforded an adequate hearing on the competency issue and seeks a post-trial hearing on this issue. The trial court has an inherent duty to question competency before and during trial. Baker v. State, 250 Ga. 187, 188 (1), 190 (297 SE2d 9). “ ‘A trial court must conduct, sua sponte, a competency hearing when the information known to the trial court at the time of the trial or plea bargain is sufficient to raise a bona fide doubt regarding the defendant’s competence. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966); McNair v. Dugger, 866 F2d 399, 401 (11th Cir.), cert. denied,_U.S._, 110 S.Ct. 109, 107 L.Ed.2d 71 (1989). Courts focus on three factors in determining whether the trial court violated the defendant’s procedural due process rights by failing to hold sua sponte a competency hearing: (1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior medical opinion regarding the defendant’s competence to stand trial. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975). Such an analysis focuses on what the trial court did in light of what it knew at the time of the trial or plea, hearing. Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979).’ Tiller v. Esposito, 911 F2d 575, 576. The requirement of a competency hearing is applicable even where the doubt regarding a defendant’s competency arises during the course of a trial. Bowden v. Francis, 733 F2d 740, 747 (5).” White v. State, 202 Ga. App. 424, 425 (414 SE2d 328).

“Where, as here, defense counsel has not filed a special pretrial plea of insanity or mental incompetency to be tried pursuant to OCGA § 17-7-130, ‘the trial court ha(s) no mandatory duty to impanel a special jury to determine that issue at this stage of the proceedings. (Cit.)’ Dowdy v. State, 169 Ga. App. 14, 15 (1) (311 SE2d 184) (1983). See also Standridge v. State, 158 Ga. App. 482 (280 SE2d 850) (1981). Therefore, the trial court did not abuse its discretion in failing to order a special trial on the basis of the testimony proffered on the motion for continuance. See Dowdy, supra.” Lightsey v. State, 188 Ga. App. 801, 802 (1) (374 SE2d 335).

In our view, the trial court did not fail to conduct a sufficient inquiry in regard to defendant’s competence to stand trial. The burden was upon defendant to show incompetency by a preponderance of the evidence. Baker v. State, 250 Ga. 187, 188 (1), 189, supra. The trial court was authorized to conclude that defendant had not carried this burden.

Furthermore, there is no abuse of discretion suggested by the absence of any psychiatric evaluation of defendant. The trial court was not compelled to direct such an examination where there has been no showing that defendant would not be able to intelligently participate at trial or that his sanity would be a significant issue at trial. Sinkfield v. State, 201 Ga. App. 284, 286 (3) (411 SE2d 68), rev’d on other grounds, 262 Ga. 239 (416 SE2d 288); Lightsey v. State, 188 Ga. App. 801, 802 (1), supra. This enumeration of error is without merit.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided July 14, 1993 —

Brown & Chambers, Carla E. Brown, for appellant.

Daniel J. Porter, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.