text:
    A90A1152.
    SIMPSON v. YONTS.
    (398 SE2d 407)
   Pope, Judge.

Defendant/tenant Marvin Simpson appeals the judgment of the trial court entered in this dispossessory action.

The following facts were stipulated by the parties: Pursuant to a written lease agreement the defendant rented a trailer owned by plaintiff/landlord Leslie Yonts d/b/a Country Acres Trailer Park. Defendant paid the first five rental installments, which were due weekly, but made no further payments after August 18, 1989. On August 28, 1989, the plaintiff instituted dispossessory proceedings in the Magistrate Court of Tift County. Pursuant to the agreement of the parties, the action was dismissed without prejudice and refiled in the State Court of Tift County. The defendant answered and counterclaimed and the parties agreed to have the matter tried before the court without a jury.

The evidence adduced at the bench trial showed the following: Several weeks after he moved into the trailer, defendant noticed a smell which seemed to emanate from the fuse box located at the back of the trailer. The defendant notified the manager/maintenance worker, Leonard Stephens, who informed the defendant that there was nothing wrong with the fuse box. However, the defendant continued to smell a burning odor. He also began to experience problems with some of the electrical appliances in the trailer. The defendant again checked the fuse box and saw that it was “sparking” and had “arcs” on it. He contacted Stephens who tightened a wire. Although the situation improved temporarily, the burning smell eventually became so bad that the defendant notified the fire department, who in turn contacted the utility company. Although a problem with the fuse box was discovered, the defendant testified that Stephens reiterated his refusal to make the necessary repairs, and defendant informed Stephens that he was withholding rent until the repairs were made. On October 4, 1989, after the dispossessory proceedings were instituted, the defendant visited the office of the plaintiff and notified him of the problem. The plaintiff testified he was unaware of the problem prior to that time and he effected repairs on the same day the defendant visited his office.

After hearing evidence, the trial court entered an order awarding possession to the plaintiff. The trial court also found that the defendant was entitled to a credit of $150 because of the reduced rental value of the property during the time the defendant experienced electrical problems, but denied the defendant’s claims for punitive damages and attorney fees. The trial court also rejected the defendant’s claims under the Georgia Fair Business Practices Act and his constitutional challenges to OCGA § 44-7-53 (b). We affirm.

1. Contrary to defendant’s first enumeration of error the trial court correctly found that “defendant introduced no evidence ... of any violation by the plaintiff of the provisions of OCGA Section 10-1-390 et seq. (the Georgia Fair Business Practices Act).” “Even assuming the particular facts of the case bring it within the regulatory ambit of the FBPA, defendant simply did not establish a prima facie cause of action under the FBPA. Defendant presented evidence that the [landlord breached his duty to repair], but . . . did not present evidence of a volitional unfair or deceptive act or practice. (Indention omitted.)” Gresham v. White Repair &c. Co., 158 Ga. App. 235, 236 (2) (279 SE2d 528) (1981). See also Gross v. Ideal Pool Corp., 181 Ga. App. 483 (1) (352 SE2d 806) (1987); Zeeman v. Black, 156 Ga. App. 82 (273 SE2d 910) (1980). Consequently, this enumeration is without merit.

2. Defendant next contends the trial court erred in concluding that the lack of actual notice to the plaintiff precluded an award of punitive damages. As asserted, however, this enumeration misconstrues the holding of the trial court. The trial court expressly found Stephens had acted as the agent of the owner, and therefore it is arguable that punitive damages could have been awarded against the plaintiff on the basis of his manager’s conduct. See Crow v. Evans, 183 Ga. App. 581 (1) (359 SE2d 446) (1987). However, pursuant to OCGA § 51-12-5.1 (b), “[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the [tortfeasor’s] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Applying that standard to the facts at hand, we hold the trial court did not err in failing to assess punitive damages against the plaintiff. Although defendant testified that Stephens refused to repair the fuse box despite repeated requests to do so, evidence was also presented that Stephens did attempt one repair of the fuse box, which was apparently successful for a short while. Likewise, although defendant testified that Stephens reiterated his refusal to repair the fuse box on the night the fire department and utility company were notified, evidence was also presented that Stephens made the statement that he would not repair the fuse box that night, but would repair it the next day. Evidence was also presented that defendant had made other repair requests which were satisfactorily resolved and that defendant’s only remaining complaint concerned the refusal to repair the fuse box. “Ordinarily the imposition of punitive damages is an issue for the [trier of fact].” Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (2) (366 SE2d 147) (1988). Having found no error which would require reversal as a matter of law, we must affirm the trial court’s refusal to impose punitive damages. Cf. McWilliams v. Hayes, 190 Ga. App. 709 (1) (379 SE2d 528) (1989); Crow, supra. This enumeration, therefore, is without merit.

Decided October 18, 1990.

Randall A. Schmidt, John L. Cromartie, Jr., Phyllis J. Holmen, Kay Y. Young, for appellant.

Allen & Kelley, Roy B. Allen, Jr., for appellee.

Dennis A. Goldstein, amicus curiae.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A1184.
    JONES v. CROPPS.
    (398 SE2d 295)
   Beasley, Judge.

Plaintiff Jones appeals from the dismissal of his case due to untimely service.

On January 10, 1985, plaintiff brought suit against defendant Cropps for personal injury damages resulting from an automobile collision which occurred on May 17, 1984. Defendant was personally served in East Point. On October 29, 1987, plaintiff voluntarily dismissed his complaint. In September or “thereafter,” Cropps moved to North Carolina.

Jones obtained new counsel in February 1988 who wrote counsel for Cropps in March and received a letter from Dunn, a claims representative for defendant’s insurance company. Dunn instructed defense counsel to make the case file available to plaintiff’s attorney. Suit was refiled on April 26, 1988, but no personal service was obtained. On May 18 plaintiff moved for service by publication, which was granted and followed by publication on May 23, 31 and June 7 and 13.

Defendant answered on June 16, appearing specially and raising the defenses of insufficient process and service of process, lack of jurisdiction and expiration of the statute of limitation. Although plaintiff corresponded with defense counsel, he took no action to locate defendant until 1989 when he hired a skip tracer service to investigate her whereabouts. The service was unsuccessful, and plaintiff filed interrogatories in April to ascertain her residence. This was almost four months after the six-month period for discovery permitted by USCR 5. Plaintiff never requested an extension or reopening of that time.

Defendant declined to answer the interrogatories because they were late and sought a ruling on the issue of lack of timely service. Service was finally obtained on defendant under the Long-Arm Statute; OCGA § 9-10-94, on November 1, 1989. The trial court dismissed the complaint due to plaintiff’s failure to properly serve defendant within the time prescribed by law.

1. The first issue is whether plaintiff obtained service on defendant by publication in the spring of 1988. Barnes v. Continental Ins. Co., 231 Ga. 246, 247 (201 SE2d 150) (1973), held: “Our statutes pertaining to torts [Code Title 105] contain no provision for service by publication in any action for personal judgment for a tort against any person, resident or nonresident.” Accord Smith v. Commercial Union Assur. Co., 246 Ga. 50 (268 SE2d 632) (1980). Compare Marbury v. Marbury, 256 Ga. 651, 653 (2) (352 SE2d 564) (1987); Lee v. Pace, 252 Ga. 546 (315 SE2d 417) (1984). Because this was a tort action seeking an in personam judgment against defendant, the attempted service by publication was ineffective.

2. The next problem is the timeliness of the service in November 1989. The action was refiled a few days before the expiration of the six months permitted for renewal of a case after dismissal. OCGA § 9-2-61. Because an action under the Code section is de novo, the “procedural prerequisites such as filing of a new complaint and perfection of service must be met anew.” Bell v. Figueredo, 190 Ga. App. 163, 164 (1) (378 SE2d 475) (1989). Adams v. Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987). In such circumstances, as in the normal statute of limitation situation, where the suit is filed before but service is beyond the expiration period then service is sustainable only if plaintiff acted in a reasonable and diligent manner in attempting to insure that proper service was made as quickly as possible. Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975).

Plaintiff acted reasonably in his initial attempts to obtain service but after defendant answered specially and asserted the defenses of lack of service and jurisdiction plaintiff took no action to discover where defendant actually resided until after the time for permissible discovery under USCR 5. This was a clear failure to exercise due diligence and constituted laches on plaintiff’s part. This authorized the trial court to dismiss the complaint for untimely service. Freemon v. Dubroca, 177 Ga. App. 745 (1) (341 SE2d 276) (1986); Adams, supra.

The trial court did not explicitly base its decision upon the failure of plaintiff to act in a reasonable and diligent manner, but unlike Childs, supra, the court did not expressly show that it was not considering those essential factors. This case need not be remanded. It is affirmed on the principle that in the absence of a contrary showing, the trial court will be presumed to have followed the law. Cox v. City of Lawrenceville, 168 Ga. App. 119 (1) (308 SE2d 224) (1983); Torok v. Mize, 164 Ga. App. 357 (1) (296 SE2d 738) (1982).

Decided October 18, 1990.

Kenneth J. Rajotte, for appellant.

William D. Temple, Jeffrey P. Raasch, for appellee.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A90A1584.
    GADSON v. THE STATE.
    (398 SE2d 409)
   Birdsong, Judge.

Eugene Gadson a/k/a Eugene Gaston appeals his judgment of conviction of armed robbery and his sentence as. a recidivist.

Appellant and another man entered a Circle K store and committed an armed robbery therein. A Circle K employee made an in-court identification of appellant, and a hidden camera took pictures of the perpetrators during the crime. Held:

1. Appellant asserts the trial court erred in allowing his statement into evidence over objection. Appellant argues that the statement was not voluntary because the police promised to speak to the district attorney and recommend a lesser sentence if appellant would reveal the name of a co-accomplice. See generally Johnson v. State, 238 Ga. 27 (1) (230 SE2d 849).

The trial court found, inter alia, that appellant was advised of, understood, and voluntarily waived each of his Miranda rights; “he thereafter gave his statement freely and voluntarily without any hope of benefit or fear of injury.” (Emphasis supplied.) The trial court then expanded its remarks to state that the alleged promise to help was in consideration of appellant revealing the name of the co-accomplice “and not of confessing himself”; and, that “the detective or detectives promised that they would let the district attorney know of [appellant’s] cooperation in identifying this other person in hopes that that might get [appellant] a reduced sentence, and but [sic] without any promise that it would or that they had authority to make any specific promise of leniency. In other words, they’d be the courier of the information to the district attorney.” (Emphasis supplied.)

Findings by the trial court, as to factual determinations and credibility relating to the admissibility of a confession, will be upheld on appeal unless clearly erroneous. Brown v. State, 259 Ga. 453 (2) (b) (383 SE2d 882). Existence of conflicting evidence at a Jackson-Denno hearing as to whether and why a given promise occurred does not automatically cause the trial court’s findings to be clearly erroneous that the confession was freely and voluntarily given. Compare Thomas v. State, 259 Ga. 202 (3) (378 SE2d 686). In determining whether the trial court’s ruling regarding the voluntariness of a confession was clearly erroneous, an appellate court may look to all the evidence contained in the record. See Robinson v. State, 194 Ga. App. 432, 433 (2) (390 SE2d 652).

The case sub judice is distinguishable from Johnson, supra. Although contested by appellant, the detectives testified appellant made an oral confession regarding his own complicity in the crime before appellant subsequently inquired of one of the detectives whether the police would speak to the district attorney in his behalf if appellant revealed the identity of his co-accomplice. Although one detective apparently agreed to inform the district attorney’s office of appellant’s cooperation, the detective testified that he informed appellant that “we make no promises or anything,” and that it was made “abundantly clear” to appellant that we “do not make deals.” Moreover, appellant’s subsequently written statement contains the following printed information, “I declare that the following voluntary statement is made of my own free will without promise of hope or reward.”

Reviewing the record in its entirety, we are satisfied that the trial court’s ruling that appellant’s statement was freely and voluntarily given was not clearly erroneous. The trial court did not err in admitting the statement in evidence.

2. Appellant asserts that the trial court erred in forcing him to trial in prison garb. The record reflects that the court observed appellant’s state of dress and that an effort was made by the deputy sheriff to obtain other clothes for appellant, but that “no one was home.” Appellant was dressed in an olive drab shirt and pants, described by the trial judge, without exception by appellant, as “army fatigues.” The trial court further stated for the record, also without exception, that the clothes were bought from the local army-navy store, and that it was not typical prison garb. In addition appellant was wearing plastic “flip-flop” shoes, which were not “very visible.” The trial court offered to adjourn court if appellant’s counsel could get appellant other dress. Appellant thereafter requested no continuance for this purpose. Appellant’s clothing has not been shown to be distinctively evident as prison garments either by the design thereof or by markings thereon; accordingly, appellant has failed to show error as enumerated. Hayslip v. State, 154 Ga. App. 835 (1) (270 SE2d 61); compare Kerr v. State, 194 Ga. App. 604 (3) (391 SE2d 449).

3. Appellant asserts that the trial court erred by admitting in evidence photographs showing appellant in the store, apparently during the robbery, without laying a proper foundation for admission thereof. Specifically, appellant asserts that the camera used to take the photographs was a video camera and, accordingly, foundation had to be shown in accordance with the precedent of Allen v. State, 146 Ga. App. 815 (247 SE2d 540). The trial record does not establish that the camera used was in fact a video camera. Moreover, even if a video camera was employed, the pictorial evidence subject to this enumeration of error is still photographs and are not video tapes of the crime scene either with or without a sound track. Allen, supra, is a distinguishable case involving the attempted introduction of certain videotape, and does not involve the introduction in evidence of a still photograph. In Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316), the Supreme Court held, “[a] photograph is authenticated by showing it is a fair and accurate representation of the scene depicted. [Cit.] Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken. [Cit.] Hence, it was not necessary . . . that a chain of custody have been established for certain photographs admitted in evidence in this case.” The photographs in the case sub judice were adequately authenticated and a foundation established for their admission in evidence through the testimony of the Circle K employee who was present at the time of the robbery and was an eyewitness to the crime. There was no error in the introduction of the photographs. Appellant’s other assertions in this enumeration of error likewise are without merit.

4. Appellant asserts the trial court sentenced him improperly. During the sentencing proceeding, appellant objected to the admission of certain indictments which show on their face that appellant had pled guilty to various criminal offenses. Appellant relies upon Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831), holding that “[a] plea of guilty that is invalid under Boykin [v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274)] may not be used to enhance punishment in a subsequent trial,” and “once the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver.” Compare Bowens v. State, 194 Ga. App. 391 (2) (390 SE2d 634). In most cases, a transcript of the plea colloquy will be sufficient to resolve the issue of voluntariness. Pope, supra at 210.

Although the State made an admission in judicio, during a post-trial hearing that “the next day I came down to [the trial judge’s] office [apparently ex parte] and said it appeared [counsel for appellant] was correct, that the sentence was in essence void for lack of evidence,” it has asserted on appeal, citing Jones v. State, 161 Ga. App. 620 (4) (288 SE2d 795), that the certified copies of the indictments were adequate to meet its burden of proof. The facts of this case are distinguishable. In Jones, supra at 623, the accusation recited on its face that appellant was “ ‘advised ... of his constitutional rights. . . .’ ” The indictments in this case contain no similar recitation. Moreover, in Pope, supra, the exhibits showed on their face that appellant had pled guilty and it was clear that appellant had been represented by counsel. The facts of this case are closely aligned with those in Pope. Further, appellant timely objected to the admission of the indictments at the sentencing hearing, thus this case, also is unlike Mincey v. State, 186 Ga. App. 839 (4) (368 SE2d 796) where appellant failed to raise the issue in the trial court.

Decided October 18, 1990.

Charles C. Grile, for appellant.

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

We find that the trial court erred in considering the evidence of appellant’s prior guilty plea offenses, over appellant’s objection, when the State had not met its burden of proof. Pope, supra at 210. Accordingly, although the judgment of conviction is free from prejudicial error, the sentence must be reversed and the case remanded for hearing on the issue of whether the guilty pleas were freely and voluntarily made. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV; OCGA § 15-2-8 (2); see Pierce v. State, 238 Ga. 126, 128-129 (231 SE2d 744) (remand for hearing on voluntariness of confession issue); compare Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (remand for in camera proceedings to determine scope of confidential informant’s testimony).

Judgment of conviction affirmed; sentence reversed and remanded with direction.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1448.
    CLARK v. THE STATE.
    (398 SE2d 377)
   Birdsong, Judge.

Willie Samuel Clark appeals his conviction for rape. He cites nine alleged errors below, principally the insufficiency of the evidence to convict him.

The eighteen-year-old victim testified that on August 22, 1989, at about 10:45 a.m., she was waiting at a MARTA bus stop to go to take an examination for her GED certificate. She had missed her bus and waited an hour or more. Appellant stopped his maroon Cadillac Seville and offered a ride. At first she said no, but then decided appellant looked harmless, and she accepted the ride. While driving, appellant chatted with her about her GED exam. He said he was driving someone else’s car and he asked her if she minded if he “went by there” to do some business. The victim explained she needed to reach the Adult Education Center by 12:00. Appellant drove to some condominiums, parked and went inside. He came back and told the victim someone wanted to meet her. She believed him, although at trial she said she was “being naive.” She went inside the condominium and sat at the dining table. When appellant attempted to coax her to the bedroom, she became frightened and tried to leave, but he caught her and held her by her upper arms and dragged or lifted her to the bedroom. She kicked at his legs, to no avail. When he placed her on the bed, he talked to her as if he wanted to be her boyfriend saying he would not hurt her but that she needed someone to “love” her. When she saw a large kitchen (butcher) knife on a chair nearby, she became afraid he would kill her and consented because of fear. Afterwards, he drove her to the AEC. She went along with his conversation because she was frightened but decided to jump from the car if he changed direction.

When he deposited her at the AEC curb, he repeated that he would like to see her again and asked for her telephone number. She gave him a “fake” number, which was actually her mother’s number, and went inside the building. A teacher in the building saw the victim get out of the car. As she entered the building, she appeared to be in “some kind of trauma.” Her face was gray, she was trembling but seemed “frozen.” The teacher asked her if something was wrong and the victim did not reply; the witness spoke three times before the victim said she had to call the police. Her voice was high and “tinny,” and she appeared highly upset. The witness took her to the secretary’s office; her hand felt ice cold. She was shaking “just sobbed, it was free sobbing, like heavy sobbing.” This witness did not know the victim.

The secretary testified that “the little girl” was very nervous and upset and crying. She seemed very disoriented, “very, very frightened.” Her words were disjointed, but she did say, “I was afraid. I was afraid that he was [going] to kill me.” The secretary feared the girl was going into shock. She also said, “He threatened me, he scared me, I was afraid that he was going to kill me.” She kept saying, “I need to let my boyfriend know what happened. I need someone with me.” This witness did not know the victim.

After she gave police a statement, she was driven to the condominiums, where she pointed out the red car and the residence. The detective pounded on the door with his fist for ten or fifteen minutes before appellant came out. Appellant consented to a search; a knife was found in a folding chair in the bedroom with clothes strewn over it. The victim identified appellant as the rapist when he exited the building; she was then taken to Grady Hospital. The examining physician collected specimens with the “rape kit”; she found sperm but no “trauma” and no bruises.

Appellant testified that he offered the victim a ride, and decided to “take a shot” at asking her to have sex with him. He was depressed over a spat he had with his girl friend. He told the police that he did think it was “rather strange” the girl would agree to have sex, but that the sex was consensual. Held:

1. On appeal of a criminal conviction, the appellant is no longer indulged with the presumption of innocence, for the jury has rendered its verdict; we do not weigh the evidence or determine the witness’ credibility but construe the evidence to uphold the verdict. Rios v. State, 193 Ga. App. 485 (388 SE2d 527). Thus, we only determine whether the evidence is such as to enable any rational trier of fact to find the defendant guilty of the crime charged beyond a reasonable doubt, and we find so in this case. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ingram v. State, 192 Ga. App. 196, 198 (384 SE2d 262).

Inasmuch as the guilty verdict on appeal is found to be supported by the evidence, it necessarily follows that appellant was not entitled to a directed verdict of acquittal. A directed verdict of acquittal is authorized only where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, “shall demand” a verdict of acquittal. OCGA § 17-9-1; Garrett v. State, 184 Ga. App. 715, 716 (3) (362 SE2d 423). Compare Sheffield v. Kirkley, 184 Ga. App. 877, 878 (363 SE2d 68); Sheffield uses an “any evidence” standard for reviewing a denial of directed verdict on appeal, but when we have held the evidence sufficient to support the guilty verdict it is unnecessary to use an “any evidence” test.

2. Appellant contends the rape kit was improperly admitted in evidence because the State did not prove chain of custody. However, the State did prove the chain of custody. There was no evidence of tampering or substitution, and the fact that the officer who transported the sample did not remember this particular sample, does not suggest any. See Hicks v. State, 187 Ga. App. 671, 672 (371 SE2d 145).

3. Appellant contends the trial court erred in refusing to give certain jury charges. The trial court’s charge as given is correct. It does not, as appellant contends, shift the burden to appellant to prove the victim’s consent to sexual intercourse.

The charge was not error for failing to state that the jury must find the victim’s fear was “reasonable.” See Curtis v. State, 236 Ga. 362, 363 (223 SE2d 721). The Supreme Court addressed this proposition in Kemp v. State, 226 Ga. 506, 507-509 (175 SE2d 869). Lack of consent negates any “consent” and renders the act rape. To suggest the State must prove the victim’s fear was “reasonable” amounts to no more than saying a person must, and is deemed to, consent to any sex act so long as she “reasonably” ought not to be afraid. In fact, it is logically impertinent to suggest that such an act is not rape because proven fear was “unreasonable,” for it is each person’s right not to engage in a sex act except by voluntary choice.

Appellant asserts that the element of reasonableness is “mandated,” because “[i]f the [victim’s] intimidation or fear is not evident to the reasonable person, then it would not be evident to the putative rapist, and, absent an understanding that the internal thinking of the alleged victim is distorted by fear or intimidation, there is no intent and therefore no rape.” These hypotheses merely raise issues of fact as to whether the victim can reasonably be deemed to have consented to the act. The defendant is not required to “read the victim’s mind” or understand her internal thought processes; he is only required not to impose sex upon her without her free consent. Whether he did so is a question of intent, which the jury determines according to the reasonableness of her testimony as to lack of consent, not the reasonableness of her fear.

In Oakes v. State, 201 Ga. 365, 374 (39 SE2d 866), the Supreme Court said: “ ‘Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which can not be impeached by man. . . .’ ‘[I]n such cases the testimony of the [victim] should always be scrutinized with care; and when there is much in the facts and circumstances in evidence to discredit her testimony, it should be deemed insufficient to sustain a verdict of guilty. . . .’” (Emphasis supplied.) In Peters v. State, 177 Ga. 772, 775 (171 SE 266), the court held: “The accused [asserted the] sexual intercourse . . . was done with [the victim’s] consent. The evidence against the accused ... is of such extraordinary character that it bears on its face the earmark of the unbelievable.” It was thus the victim’s testimony going to the question of consent which was determined “unbelievable,” i.e., unreasonable. If it is reasonable to believe the victim did not consent in this case but complied out of fear, it is immaterial that the defendant thought her fears were “unreasonable.” The trial court correctly refused to give the charges requested by defendant.

4. The trial court did not err in admitting photographs of the scene. None of these photographs was irrelevant or prejudicial. See Carter v. State, 192 Ga. App. 726 (386 SE2d 389). The testifying officer explained that she found the knife in the chair, but with some clothes strewn on top. The officer’s removal of the clothes to photograph the knife does not render the photo inadmissible, but goes to its weight. See Byrd v. State, 182 Ga. App. 284 (355 SE2d 666).

5. The trial court did not err by cautioning the jury to consider with great care the defendant’s statement. In the context of the entire charge, this did not amount to an indication of the trial court’s opinion as to the statement, and did not suggest a negative view of it.

6. Appellant complains of certain intrusive questions on the State’s cross-examination of him. The scope of cross-examination rests largely with the trial court; considering that cross-examinations generally are given wide berth, we will not interfere with the trial court’s discretion unless it is clearly abused. See Claypool v. State, 188 Ga. App. 642 (373 SE2d 765). The State did not “drag in” improper evidence of appellant’s character.

7. Appellant contends a witness should not have been allowed to testify as to what the victim “appeared to know.” However, the witness only stated what she observed, which was that the victim appeared not to notice her or hear her questions. A witness can testify as to an apparent state of mind after testifying to the facts and circumstances of the conclusion. O’Kelley v. State, 175 Ga. App. 503 (333 SE2d 838).

8. It was not error to fail to charge that the position occupied by a witness, such as police officer, does not itself give greater force, weight and credit to his testimony over the testimony of other witnesses. The charge given as to credibility of the witnesses was full and correct. Vasquez v. State, 182 Ga. App. 850 (357 SE2d 302); Pratt v. State, 180 Ga. App. 389 (348 SE2d 922).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

On Motion for Rehearing.

Appellant contends we misunderstood his argument as to the State’s failure to prove chain of custody of the rape kit. Appellant complained on appeal that some items which the forensic expert testified she received in the kit were “[not] mentioned” by the examining physician, but this failure of the physician to mention putting in the kit every item the forensic witness had noted as having received, does not suggest tampering or contamination. At best, it indicates a failure of the physician to remember every item she placed in the kit. Appellant’s objection to the exhibit at trial was based only upon the inability of the transporting officer to remember this kit among 13 transported. Appellant did not object at trial that the rape kit evidence was irrelevant because he did not dispute the fact of intercourse, or that the absence from the kit of some of the items, including a tampon, was somehow incriminating or caused prejudice in the jury’s mind which resulted in the guilty verdict. None of the items which the doctor failed to mention was in the kit when it was given to the jury, and none of them was material to the question of the victim’s consent. This includes the “used tampon,” which the forensic expert did not describe or explain, and to which she neither attached any evidentiary significance nor was asked for any. There is therefore nothing in the record to show that any of the items had any probative value, or what such probative value it might have had by being absent from the kit as it was given to the jury.

Decided September 11, 1990

Rehearing denied October 19, 1990

John H. Tarpley, Corinne M. Milsteen, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Desiree L. Sutton, J. Michael McDaniel, Assistant District Attorneys, for appellee.

Appellant insists that based upon a remark, which we regard as gratuitous, made in Curtis v. State, 236 Ga. 362, 363 (223 SE2d 721), the jury should be given the opportunity via the jury charge to determine whether the victim’s apparent consent to intercourse was “induced by reasonable apprehension, or whether such apprehension was unreasonable and . . . pretextual.” Curtis most assuredly did not mean to create an opportunity for a rape defendant to argue that the victim’s fear of intercourse with him was “unreasonable,” and that therefore he should not be found guilty of rape even though lack of consent was proved beyond a reasonable doubt. Whether the victim’s stated fear is pretextual is another matter; this goes to the question of consent, and, as we clearly held, the jury may take into account evidence that is incredible or “is of such extraordinary character that it bears on its face the earmark of the unbelievable.” Peters v. State, 177 Ga. 772, 775 (171 SE 266). As to the issue of consent, the victim’s testimony as to her fears may be examined for its credibility, but not for its reasonableness. The jury may find her testimony as to consent is unreasonable, but it would be error to allow the jury to determine the reasonableness of her fears.

Motion for rehearing denied.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A1500.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MATHIS.
    (398 SE2d 387)
   Deen, Presiding Judge.

In August of 1987 appellant issued to appellee an insurance policy covering an automobile owned by Mrs. Mathis and intended to be driven principally by the Mathises’ 18-year-old grandson, who resided with his grandparents. The policy provided personal injury protection (PIP) benefits of $10,000 per person per accident and medical benefits of $1,000 per person. Some six weeks after issuance of the policy, the grandson and one of two passengers were killed in a one-car accident.

On October 5, 1987, three days after the fatal accident and one day after the funeral, appellee and her family notified appellant’s agent in person and allegedly inquired as to the amount of insurance coverage available. According to appellee, the agent informed them that up to $10,000 would be available for funeral and burial expenses, the exact total to be determined by the actual amount of funeral expenses incurred. The agent contended at trial that during this meeting he had “broken down” the $10,000 into various categories of allowable expenses, including medical expenses, funeral expenses, and others. Mrs. Mathis testified that after the meeting she had ordered a monument costing $4,926.60.

Actual expenditures for the funeral arrangements, including the monument, totaled $9,469.10, and on October 9, one week after the accident, appellee and her family went to appellant/insurer’s office to file their claim. Appellant’s adjuster informed them that the coverage available for young Mathis’ funeral expenses totaled $4,500; and that the same amount was available for the other decedent. Mrs. Mathis protested, and an altercation ensued, during which the adjuster allegedly told Mrs. Mathis that she could take the $4,500 or leave it and could hire a lawyer if she were dissatisfied. The adjuster also allegedly threw the funeral bills across his desk towards Mrs. Mathis, pounded on the desk, and pointed his finger at her.

The Mathises then filed an action in two counts, breach of contract and intentional infliction of emotional distress. The trial court granted defendant/appellant summary judgment on the first count, and the jury trial of the second count resulted in a hung jury and a mistrial. Appellant moved for judgment notwithstanding the mistrial, and, upon denial of the motion, sought a certificate of immediate review. We granted an interlocutory appeal to consider the sole enumeration of error: denial of the motion for judgment notwithstanding the mistrial. Held:

Scrutiny of the record reveals that the policy issued to the Mathises provides $1,500 for funeral/burial expenses under basic PIP; $2,000 in additional PIP coverage that may be applied towards funeral/burial expenses; and $1,000 in medical payment coverage that can be applied to funeral/burial expenses in lieu of medical expenses. It thus appears that the insurance adjuster’s statement that $4,500 was the maximum available for funeral/burial expenses was correct. See OCGA §§ 33-34-4; 33-34-5. We can only speculate as to the reasons that the grief-stricken family might have left the October 5 meeting with the sales agent under a misapprehension as to the relationship between the amount of allowable funeral/burial expenses and the overall limits of the policy.

Mrs. Mathis’ daughter corroborated her mother’s testimony as to the adjuster’s behavior when the bills were presented to him on October 9; the sister of the other decedent testified that the adjuster had treated her in a rude and arrogant manner during a meeting held an hour or so before that between the adjuster and the Mathises. The retiring adjuster, who had been present during both these meetings, testified that the incoming adjuster behaved in a courteous manner, did not raise his voice, did not throw the bills on the desk, and did not point his finger, but that Mrs. Mathis and her daughter had both appeared upset and had raised their voices. A secretary working in an outer office testified that the only sounds she heard coming from the adjuster’s officer were the voices of either Mrs. Mathis or her daughter.

An action for intentional infliction of emotional distress will lie only when “the defendant’s actions . . . have been so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff. [Cits.] However, our courts have also recognized that ‘there is authority to sanction a recovery in tort where the defendant has wilfully and wantonly caused emotional upset to the plaintiff through the use of abusive or obscene language.’ [Cits.]” Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 224 (369 SE2d 541) (1988). According to the Restatement (Second) of Torts, Ch. 1, Emotional Distress, § 46 (1), comment d, “[t]he cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous.”

The record shows that, at appropriate junctures during the course of the trial, defendant/appellant insurer had moved for directed verdict, alleging inter alia that the evidence, when properly construed, was insufficient to support a verdict for plaintiff, and did not rise to the level of sufficiency to sustain a cause of action for intentional infliction of emotional distress. Defendant/appellant thereby technically cleared the way for a motion for judgment n.o.v. had an unfavorable verdict been rendered below. “Not later than 30 days after entry of judgment, a party who has moved for directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict. . . .” OCGA § 9-11-50 (b). This statute further provides that “if a verdict was not returned, such party . . . may move for judgment in accordance with his motion for a directed verdict.” Id. The statutory standard for granting a directed verdict is that “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a).

In the instant case the trial court, according to the record before us, had denied each of appellant’s motions for directed verdict. We conclude that its denial of appellant’s motion for a post-trial judgment “in accordance with his motion for directed verdict,” OCGA § 9-11-50 (a), was consistent with his prior rulings and therefore proper. Compare S & W Seafoods Co. v. Jacor Broadcasting &c., 194 Ga. App. 233 (390 SE2d 228) (1990); Gordon v. Frost, 193 Ga. App. 517 (388 SE2d 362) (1989).

We find no error here.

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

Considering fully the testimony of plaintiff and her daughter and giving berth to reasonable inferences, I concur in the conclusion that defendant is not entitled to a judgment notwithstanding the mistrial. There are several aspects of the case which are not discussed in the majority opinion but which bear significantly on whether the evidence failed as a matter of law to show the tort of intentional infliction of emotional distress.

First is the element of duty. The majority opinion and many of the cases which precede it focus on the second element, that of breach, determining whether or not the conduct and words of the defendant were so egregious as to constitute breach or at least be subject to such a finding by the trier of fact. See, e.g., Moses v. Prudential Ins. Co., 187 Ga. App. 222 (369 SE2d 541) (1988); Kornegay v. Mundy, 190 Ga. App. 433 (1) (379 SE2d 14) (1989); Quinones v. Maier & Berkele, 192 Ga. App. 585, 587 (1) (a) (385 SE2d 719) (1989); S & W Seafoods Co. v. Jacor Broadcasting &c., 194 Ga. App. 233 (390 SE2d 228) (1990). But the first question is, what was the defendant’s legal duty towards plaintiff, and from whence did it arise? That is to say, one must look at the relationship and respective roles of the parties.

In several cases, the court recognized that the duty arose from the defendant’s particular status vis-a-vis the plaintiff. See, e.g., Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (59 SE 189) (1907); Greer v. Medders, 176 Ga. App. 408, 409 (336 SE2d 328) (1985); Anderson v. Chatham, 190 Ga. App. 559, 567 (8) (379 SE2d 793) (1989); Gordon v. Frost, 193 Ga. App. 517, 522 (1) (388 SE2d 362) (1989). Also, Moses, cited earlier, referred to “the relationship of the parties” as being instrumental. The court either found or assumed for the purpose of the argument that the businessman, a former supervisor of plaintiff’s, had a duty not to intentionally inflict emotional distress.

Decided October 4, 1990

Rehearing denied October 19, 1990.

Reinhardt & Whitley, Glenn Whitley, for appellant.

Perry, Moore & Studstill, Daniel L. Studstill, for appellee.

What we have here is another type of special relationship. The disputing parties are not just two members of the general public. Instead, the alleged tortfeasor was the insurer’s representative, with a duty to process the client/insured’s claim fairly according to the contract. The jury could find that defendant owed a duty arising out of the business relationship such that his conduct went so far beyond the norms of acceptable business behavior that it was “ ‘sufficiently extreme and outrageous to result in liability,’ ” S & W Seafoods Co., supra at 237, quoting from Restatement of Torts (Second).

Secondly, in determining whether a jury could find a breach, “[t]he severity of the emotional distress allegedly produced by the . . . conduct is also a factor in determining liability for [this tort].” Quinones, supra at 587, and Anderson, supra at 567. It is not merely a factor in establishing damages. Here, there was evidence that as much as a week later, plaintiff was suffering from the effects of the experience to the degree that she sought and obtained medical treatment.

Finally, I concur, having considered the above and concluding that the denial of judgment notwithstanding mistrial was correct because the denials of directed verdict were proper. The majority, on the other hand, holds that the denial of judgment was proper solely on the strength of its consistency with the directed verdict rulings. To the contrary, however, they had to be correct in order for the judgment of denial to be correct. Simmons v. Watson, 221 Ga. 765, 767 (2) (147 SE2d 322) 1966).

       Mr. Mathis was voluntarily dismissed as a party plaintiff.


text:
    A90A1816, A90A1817.
    ALEXANDER v. STEINING et al.; and vice versa.
    (398 SE2d 390)
   Birdsong, Judge.

Appellant Diane Alexander appeals from the order of the state court granting judgment on behalf of appellant in a non-jury suit for breach .of contract of a lease-purchase agreement, consisting of two documents — a lease and a sales agreement — which incorporated each other by reference. Appellees, Henry and Sally Steining, cross-appeal from the portion of the judgment which directed defendants to pay $1,200 as increased rent as month-to-month tenants.

The judgment pertinently provides, “the court enters judgment as follows: [Appellant/] Plaintiff is entitled to retain the $2,500.00 earnest money deposit as liquidated damages and [appellees/ defendants owe [p]laintiff $1,200.00 representing increased rent for the period of February 1, 1989 through July 31, 1989. Wherefore it is ORDERED that [p]laintiff have and recover judgment against [defendants in the amount of $1,200.00 plus costs of this action.” Held:

I. Case No. A90A1816

1. Appellees move to dismiss this direct appeal on the grounds that judgment in this case is $2,500 or less thereby necessitating a timely application for discretionary appeal (OCGA § 5-6-35 (a) (6)).

During the course of announcing his finding, the trial judge and appellant’s counsel engaged in the .following colloquy: “[APPELLANT’S COUNSEL]: And the judgment is $1200 ... for the plaintiff? THE COURT: That’s correct. Of course, since the counterclaim has been dismissed, the $2500 is not at issue. [APPELLANT’S COUNSEL]: Correct. It is $1200. THE COURT: In effect, it’s $2500 plus $1200. You get to keep the $2500.” (Emphasis supplied.)

We find this judgment subject to direct appeal under the provisions of OCGA § 5-6-34 (a). “Judgments are to have a reasonable intendment.” 18 EGL (1981 Rev.), Judgments & Decrees, § 109. Thus, judgments must be reasonably construed in accordance with the intent of the trial court if the language discloses such intent clearly and without doubt or obscurity; judgment must be construed to give effect to intention of the judge who entered it if possible. See Watts v. State, 141 Ga. App. 127, 132 (7) (232 SE2d 590). A judgment must be construed in its entirety, rather than merely placing undue emphasis on any particular word therein. See Shepard v. Bozeman, 222 Ga. 585, 587 (151 SE2d 147); Watts, supra at 132. And, “[w]here a judgment is susceptible of two interpretations, that one will be adopted which renders it the more reasonable, effective, and conclusive, and which makes the judgment harmonize with the facts and law of the case and be such as ought to have been rendered.” 18 EGL, supra at § 109. When construed in its entirety and given reasonable intendment, the judgment entered is in an amount in excess of $2,500, and accordingly subject to direct appeal. OCGA § 5-6-34 (a). Appellees’ motion is denied.

2. Appellant Alexander asserts, inter alia, that the lower court erred in adjudging that the $2,500 earnest money provision was liquidated damages, and in failing to grant a motion for new trial on this ground.

In an attachment captioned “Addendum ‘A’ to Lease Agreement,” it was provided that: “Purchaser shall deposit with Seller a non-refundable Earnest Money of $2,500.00 as security for performance of [purchaser's obligations under this [l]ease and the related Agreement for Purchase and Sale of Real Estate. In the event of a default by [p]urchaser under the terms of this lease or the agreement for Purchase and Sale of Real Estate the entire $2,500.00 deposit shall be retained by [s]eller, and [p]urchaser shall have no claim to it. . . .” (Emphasis supplied.)

“ ‘Depending on the language used in the contract and the intent of the parties, the existence of an earnest money provision in a real estate contract can have one of three effects in the case of a breach by the buyer. First, the money could be considered as partial payment of any actual damages which can be proven as a result of the breach; second, the money could be applied as part payment of the purchase price in the enforcement of the contract in a suit for specific performance [this is not such a suit]; and thirdly, the money could be liquidated damages for breach of the contract by the buyer.’ ” Budget-Luxury Inn v. Kamash Enterprises, 194 Ga. App. 375, 376 (390 SE2d 607). It has long been held that “[i]n determining whether a designated sum that is to be paid to one party in the event that the other breaches the contract is a penalty, we must ascertain whether it was inserted for the purpose of deterring the party from breaching his contract, and of penalizing him in the event he should do so, or whether it was a sum which the parties in good faith agreed upon as representing those damages which would ensue if the contract should be breached.” Florence Wagon Works v. Salmon, 8 Ga. App. 197, 199 (68 SE 866). And “ ‘where, to secure the performance of the terms of a contract, there is a stipulation for the payment of a fixed, unvarying sum, upon the breach of any of several promises of varying degrees of importance . . . the sum named will be construed to be a penalty.’ ” Florence, supra at 201. In addition, “ ‘[a] contractual provision requiring payment of a stipulated sum by one of the parties upon termination or cancellation of the contract will be treated as an enforceable liquidated damages provision rather than an unenforceable penalty only if all three of the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second the parties must intend to provide for damages rather than a penalty; and third, the stipulated sum must be a reasonable pre-estimate of the probable loss resulting from such a breach.’ ” Budget-Luxury, supra at 376; see generally Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340). We have held that no particular form of words is controlling and the agreement must be examined in its entirety and in light of the circumstances under which it was made. Florence, supra at 198. Further, we have held that “whether a provision represents liquidated damages or a penalty does not depend upon the label the parties place on the payment but rather depends on the effect it was intended to have and whether it was reasonable.” Southeastern, supra at 228. However, in Oran v. Canada Life Assur. Co., 194 Ga. App. 518 (2) (390 SE2d 879), this court opined that “in the recent case of Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222), the Court appears to . . . have held that the label the parties place on the payment is controlling on the issue of their intention.” Here, as in Daniels v. Johnson, 191 Ga. App. 70, 72 (381 SE2d 87), “[t]here is no language in the contract showing that the parties intended this amount to be liquidated damages rather than a penalty.” In Daniels, we held, “[o]f course, while the words used in the provision are by no means conclusive, [cit.], they are a critical factor in determining the intent of the parties.”

Appellant, however, directs our attention to the editorial note to Ga. Code Ann. § 20-1403 (OCGA § 13-6-3), pertaining to penalties for breach of bonds, which states that “[t]he distinction between a penalty and a provision for liquidated damages is that a penalty is in effect a security for performance, while a provision for liquidated damages is a sum to be paid in lieu of performance.” But see Sanders v. Carney, 118 Ga. App. 576 (5) (c) (164 SE2d 856) (the agreement did not purport on its face to provide a penalty but merely to provide security for the performance of the contract).

Although there is merit to this contention, after examining the contested provision, particularly in light of the contents of the entire lease-purchase agreement, the circumstances surrounding the execution thereof, and the testimony of the parties concerning their intent, we find it is unclear whether the parties intended the designated, unvarying sum to provide for liquidated damages, rather than a penalty.

“As a general rule, the provisions of a contract will be construed against the draftsman, and those of a lease will be construed against the lessor.” Stern’s Gallery &c. v. Corporate Property &c., 176 Ga. App. 586, 593 (4) (337 SE2d 29). Appellant drafted the contract. However, it is a long-standing specific rule, used in resolving disputed liquidated damage provisions issues, that “‘[i]n cases of doubt the courts favor the construction which holds the stipulated sum to be a penalty, and limits the recovery to the amount of damage actually shown, rather than a liquidation of the damages.’ ” (Emphasis supplied.) Fortune &c. Co. v. Dept. of Transp., 242 Ga. 531, 532 (250 SE2d 401); Southeastern Land Fund, supra at 231; accord Mayor &c. of Brunswick v. Aetna Indem. Co., 4 Ga. App. 722, 728 (62 SE 475). Whenever these two rules of contract construction are in conflict, the specific rule shall take precedence over the general rule, and it is the specific rule that shall be applied. Accordingly, we find the trial court erred in placing undue emphasis upon and applying in its legal construction of the contested provision that “[p]laintiff in this case is a real estate agent-broker. She drafted the contract,” and then concluding “as the trier of fact and as a question of law,” the clause was a liquidated damage clause notwithstanding the actual wording of the provision.

Moreover, in circumstances where the non-defaulting party is attempting to enforce an alleged liquidated damage provision, “at trial the burden is on the defaulting party to show that the provision is a penalty.” Liberty Life Ins. Co., supra at 809, citing 25A CJS, Damages, § 144 (f); compare Daniels v. Johnson, 191 Ga. App., supra. In the case sub judice, however, the defaulting appellee is the party attempting to show that the provision was for liquidated damages, and it is the non-breaching appellant who is attempting to rebut this assertion by claiming the provision was one of penalty. Thus, the appellee in effect has asserted a defense of payment of liquidated damages. “[T]he burden is on defendant to prove a defense of payment of liquidated damages.” 25A CJS, Damages, § 144 (f). Inherent within the burden of proving this defense is the burden of proving that the provision was in fact for liquidated damages rather than for a penalty. Appellees have failed to carry their burden.

For each of these reasons and also in view of our holding in Florence Wagon Works, supra, we conclude that the trial court’s finding that the parties intended to execute a liquidated damages provision was clearly erroneous, and that the provision in question was a penalty as a matter of law.

Further, no exception exists that, merely because the non-breaching party happens to make an error in calculating the stipulated sum that ultimately proves beneficial to the breaching party, she is es-topped from asserting the invalidity of a penalty provision.

It has been stated that a non-breaching party who has agreed to accept liquidated damages cannot elect after a breach to take actual damages should they prove greater than the sum specified; and, the breaching party cannot complain that the actual damages are less than those specified as liquidated damages. Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891, 898 (376 SE2d 655), citing South eastern Land Fund, supra at 230. This, however, is a “rule in the law of liquidated damages [which in pertinent part prohibits] the non-breaching party from recovering actual damages exceeding the liquidated-damage sum.” (Emphasis supplied.) Fickling, supra. It was not intended to create a rule of estoppel prohibiting the non-breaching party from recovering his actual damages merely because an unenforceable penalty provision designated a sum therein in a lesser amount.

Thus, the trial court erred by concluding that the provision for a designated sum of $2,500 was an enforceable liquidated damage clause in the lease-purchase agreement, and binding upon the parties as the maximum as well as the minimum sum that could be collected.

II. Case No. A90A1817

Cross-appellants assert that the trial court erred in ruling that the landlord’s letter of November 30, 1988, purporting to increase the monthly rent by $200, effective December 1, 1988, was an ineffective notice of increased rent pursuant to OCGA § 44-7-7.

The parties agree that appellees became tenants at will after failing to surrender the premises at the expiration of the written lease. “One who is a tenant at will by virtue of holding over after the expiration of the term of his lease holds the premises subject to the general terms and conditions specified in the lease, except so far as modified by mutual agreement. [Cit.] Certainly, the general terms and conditions of the lease would include, at a minimum, provisions for rent and repairs by the landlord and tenant.” (Citations and punctuation omitted.) Gully v. Glover, 190 Ga. App. 238, 240 (2) (378 SE2d 411). But a unilateral notice of rental increase sent to the tenant by the landlord would, in effect, constitute notice of the termination of the $850 per month tenancy and, after termination was effected, a new tenancy at will at the higher rate would be commenced. See D. Jack Davis Corp. v. Karp, 175 Ga. App. 482, 484 (333 SE2d 685). We find that the letter announcing a rental increase was at least in substantial compliance with the notice requirements of OCGA § 44-7-7 (OCGA § 1-3-1 (c)); however, as a landlord must give 60 days’ notice to terminate a tenancy at will. (OCGA § 44-7-7), the notice would not become effective to terminate the old tenancy at will and to commence the new tenancy, at the increased rental rate, until the 60-day notice period had expired.

Although cross-appellants draw our attention to the fact that the landlord continued to accept rent at the old monthly rate until the tenants ultimately vacated the premises, they neither assert as an enumeration of error nor expressly argue or cite authority in their cross-appellants’ brief that such conduct constituted either waiver or estoppel. Accordingly, this issue is abandoned on appeal. Court of Appeals Rule 15 (c). We find cross-appellants’ enumeration of error to be without merit.

Decided October 4, 1990

Rehearings denied October 19, 1990

Quinton S. King, Edward C. Stone, for appellant.

Allman & Banner, David E. Allman, Denis R. Griffin, for appellees.

In view of our holding in Section I, above, that the provision constituted a penalty, judgment is reversed. A new trial is not required as the trial judge allowed appellant to establish his actual damages on the record. Compare Daniels, supra at 73. We will remand this case to the trial court for entry of judgment in favor of plaintiff in an amount as to actual damages and attorney fees as established by the record.

Judgment reversed and cases remanded with direction.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1943.
    NORMAN v. THE STATE.
    (398 SE2d 395)
   Birdsong, Judge.

Cecil B. Norman appeals his sentence resulting from his conviction of aggravated assault by shooting his wife in the chest with a deadly weapon.

Appellant’s wife testified appellant shot her in the chest with a pistol, and several witnesses testified as to res gestae statements made by the wife concerning the incident. Certain expert witnesses testified regarding such matters, inter alia, as gunpowder residue and cartridge markings. A doctor testified that it was unlikely the wound was self-inflicted if the victim was right-handed, but it was possible the gun could have been held in an unnatural position during a struggle for control of it when it discharged.

Appellant testified his wife had attempted to commit suicide and that the gun had accidentally discharged as he attempted to prevent her from killing herself. Appellant also presented several character witnesses, and expert testimony which tended to show that the incident could have occurred as claimed by the defense. Held:

1. On appeal evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga. App. 432, 433 (1) (390 SE2d 652). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts it was error to permit the unsworn prior statement of the wife to be admitted in evidence as an exhibit available to the jury.

Appellant specifically argues and offers citations of authority in his brief on the sole issue that it was reversible error to allow a prior written statement of a witness to be taken out with the jury for its review during deliberation. The record reflects that appellant failed to make a timely objection on this specific ground at trial, although he did object to the admission of the statement on other grounds not now asserted. “If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.” Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629); compare Mundy v. State, 259 Ga. 634 (5) (385 SE2d 666). An objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal. People v. Hardy, 395 NE2d 743 (5) (A.C. Ill.) Moreover, “the court properly permitted these exhibits to go to the jury room in the absence of a proper objection.” Sanders v. State, 246 Ga. 42 (2) (268 SE2d 628).

Appellant apparently has elected not to argue or cite authority in direct support of this enumeration that it would constitute prejudicial error merely to admit evidence of the note written to the police by the victim as she lay severely wounded in her house shortly after the shooting, or by allowing its reading to the jury. See generally OCGA § 23-3-3; Houston v. State, 187 Ga. App. 335, 340 (5) (370 SE2d 178); Cowart v. State, 179 Ga. App. 108 (345 SE2d 655). Accordingly, these particular issues, even if tacitly contained within the scope of this enumeration, are deemed to be abandoned. Court of Appeals Rule 15 (c) (2).

3. Appellant asserts that it was error, and a violation of due process and equal protection under the laws of the United States and the State of Georgia, to exclude testimony of the prior consistent statement of the appellant, particularly in conjunction with the admission over objection of the prior unsworn consistent statements of the prosecutrix.

These assertions of a violation of appellant’s constitutional rights of due process and equal protection were not timely raised and ruled upon by the trial court. Constitutional issues not raised below are not preserved for appeal. Meders v. State, 260 Ga. 49 (2) (b) (389 SE2d 320); Allen v. Montgomery Ward &c., 186 Ga. App. 337, 339 (2) (367 SE2d 120).

Regarding the inadmissibility of appellant’s out-of-court statements wherein he had described the shooting as an accident, we find Grude v. State, 189 Ga. App. 901 (2) (377 SE2d 731) controlling, and Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) distinguishable for the reasons expressed in Grude. We are satisfied that no error was committed in this particular instance.

Moreover, we note the record is replete with testimony of both the appellant and defense witnesses that, from the time of the initial statements of appellant’s wife, her husband had shot her, appellant staunchly maintained the incident had not happened in that manner. In fact, appellant’s wife testified “every time I said that [appellant] shot me I heard him saying ... no, no, she’s all mixed up, she’s all wrong, that’s not the way it was. . . .” Further, police officer Smith testified that appellant said “he was leaving for work. . . . [H]e turned around and [his wife] was getting ready to shoot herself and he tried to struggle the gun away and it went off.” In view of the posture of the record, assuming arguendo error occurred in excluding the so-called prior consistent statement of appellant, we are satisfied beyond a reasonable doubt that the error, even if of constitutional magnitude, did not contribute to the verdict. Even “[a] constitutional error . . . will not require reversal if it can be shown to the court beyond a reasonable doubt that the evidence did not contribute to the conviction.” Moore v. State, 254 Ga. 674, 677 (333 SE2d 605).

4. Appellant asserts that it was error to permit his wife in unresponsive remarks throughout the trial to attack the general good character of appellant, although he had not yet put his own good character into issue. Specifically, appellant argues that as a result of continual allegations of past and current infidelity, allegedly unsupported by any proof, he was placed on trial less for the alleged assault than on the issue of his “marital success.”

Appellant asserts, inter alia, that he had a continuing objection to references to his infidelity and marital separation contained in the wife’s handwritten note to the police, State’s Exhibit 8, and by implication argues that this continuing objection was broad enough also to include that portion of the testimony of the wife (and any other witnesses) which, although not directly concerning the note, informed the court of appellant’s relationship with another woman and of his marital separations.

Review of the record reveals appellant filed a motion in limine to the introduction of evidence as to the break-up of the marriage and as to appellant’s past or current adulterous behavior; however, the specific objection therein posed to this evidence was that “[a]n objection made at trial would not be sufficient to protect against the prejudicial impact this irrelevant information would have on the jury.” This specific objection most broadly interpreted is thus one of both logical and legal relevancy, the latter grounds raising the issue of whether the probative value of the evidence was substantially outweighed by its potential for prejudice. Appellant thereafter posed no timely objections, during trial, to the introduction of such evidence on any other grounds, but tendered a motion for mistrial after the trial court completed his charge to the jury. Appellant has elected not to enumerate as error the trial court’s denial of his belated mistrial motion, thus that issue is not before us on review. “Matters not enumerated as error will not be considered on appeal.” Rider v. State, 226 Ga. 14 (2) (172 SE2d 318).

Assuming without deciding the record adequately supports appellant’s claim that a continuing objection existed on the above grounds to all evidence of marital separation or infidelity, and not merely to that relating to the “underlying problems . . . that led to any psychiatric condition that [appellant’s wife] might have,” we find nevertheless that this enumeration is without merit.

Appellant has waived any grounds for objection to this evidence, other than that of logical and legal relevancy, because he did not make any other timely, specific objections at trial to the introduction of this evidence (Ray, supra; Mundy, supra; People v. Hardy, supra), and because the scope of any continuing objection, at best, extended only as to objections of relevancy and prejudice as asserted in the motion in limine and reasserted in the out-of-court hearing pertaining thereto.

Admissibility of evidence is a matter which rests largely within the discretion of the trial court. Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428). “Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citations and punctuation omitted.) West v. Nodvin, 196 Ga. App. 825, 828 (3) (b) (397 SE2d 567) (1990).

“If evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue.” (Punctuation omitted.) Baxter v. State, 254 Ga. 538, 547 (16) (331 SE2d 561). Clearly the evidence regarding appellant’s marital separations and relationship with another woman was relevant as to his motive, intent and state of mind. Moreover, the same evidence also happened to be relevant to appellant’s defense. Appellant in essence claimed his wife had attempted suicide, and the evidence of his past marital separations and conduct with another woman could provide a motive for her attempted suicide. In fact, appellant made admissions in open court, during his direct examination, that he was having marital difficulties with his wife, that he and his wife were separated on some occasions, that he entered a marital agreement which, in part, specified he would stay away from a certain woman, and that he had “boarded” at the woman’s house at times.

Considering the posture of the record, particularly the obvious trial strategy employed by appellant in his defense, we find that the trial court did not abuse its discretion in permitting the introduction of the evidence in question, even in the face of a continuing objection on the grounds of logical or legal relevancy. Compare Mingo v. State, 259 Ga. 394 (2) (382 SE2d 594) and Baxter, supra at 547 (16).

Moreover, as to State’s Exh. 8, the wife’s note to the police, “[t]he court clearly invoked the res gestae rule (OCGA § 24-3-3) that the state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed the defendant’s character in evidence.” (Citations and punctuation omitted.) Houston, supra at 340.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

On Motion for Rehearing.

We have considered appellant’s motion for rehearing and adhere to our opinion. We also find appellant’s belated assertion and affidavit to the effect that he raised certain constitutional issues in the motion for new trial unpersuasive. The record contains a document captioned “Notice of Appearance And Motion For New Trial,” which pertinently states: “The Defendant . . . moves the Court for a new trial upon the following grounds, to wit: 1. Because the verdict is contrary to the evidence and without evidence to support it; 2. Because the Verdict is decidedly and strongly against the weight of the evidence to support it; 3. Because the verdict is contrary to law, and the principles of justice and equity; 4. Because of the ineffective assistance of counsel.” The motion for new trial does not expressly assert any constitutional errors, and the order of the trial court denying the motion does not contain any express rulings on constitutional issues.

We decline to consider the affidavit attached to appellant’s motion for rehearing. A motion for rehearing or attachment thereto, like a brief, cannot be used as a procedural vehicle for adding evidence or fact representations to the record. Ross v. State, 195 Ga. App. 624, 625 (2) (394 SE2d 418). Moreover, we are satisfied beyond a reasonable doubt that in view of the posture of the record none of the errors asserted by appellant contributed to his conviction.

Motion for rehearing denied.

Decided October 5, 1990

Rehearing denied October 19, 1990.

Sinnreich & Francisco, Elizabeth R. Francisco, for appellant.

Edward D. Lukemire, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.


author: Cooper, Judge.

text:
    A90A0944.
    FROMAN et al. v. GEORGE L. SMITH, GEORGIA WORLD CONGRESS AUTHORITY.
    (398 SE2d 413)
   Cooper, Judge.

Appellants brought this action for negligence and loss of consortium against appellee for injuries suffered by appellant Naomi Fro-man (“Mrs. Froman”) when she fell on appellee’s premises, the Georgia World Congress Center (“Center”). The trial court granted appellee’s motion for summary judgment, and this appeal followed.

Appellants’ sole enumeration of error asserts that the trial court erred in finding that Mrs. Froman was, or should have been, aware of an expansion joint on the sidewalk and should have exercised ordinary care to avoid it, as she had on the occasions prior to her fall. A review of the evidence reveals that appellants were in Atlanta to attend a convention at the Center, and Mrs. Froman took several sightseeing tours for which she took a shuttle bus to and from her hotel to the Center. Mrs. Froman used the shuttle bus on the two days before her fall and had returned from a tour on the third day when the incident occurred. On each day, the shuttle buses loaded and unloaded in the same general area in front of the Center, and in that area was an expansion joint, a metal strip which ran the length of the sidewalk joining two sections of concrete. The incident occurred at approximately 4:00 p.m. on a clear day, and the dark expansion joint, over which Mrs. Froman tripped, was clearly visible in contrast to the lightly-colored pavement and remained in the same condition during the three-day period of Mrs. Froman’s visit. Mrs. Froman contends, however, that prior to her fall, her view of the sidewalk was impaired because the sidewalk was crowded with people.

The trial court held that appellee did not have superior knowledge of the condition of the sidewalk and the expansion joint and that due to the fact that Mrs. Froman had traversed the route of which she now complains several times, her knowledge of the potential danger presented by the expansion joint was equal to that of the appellee. The court found Mrs. Froman’s claim that the crowd obstructed her view of the sidewalk to be without merit and immaterial. We agree.

“ ‘For appellant to recover under a common law negligence theory, there must have been a defective condition on appellee’s premises, which defect was the cause of appellant’s fall and of which appellee had superior knowledge. The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ (Cit.)” (Punctuation omitted.) Tuck v. Marriott Corp., 187 Ga. App. 567 (1) (b) (370 SE2d 795) (1988).

Decided October 19, 1990.

Smolar, Pelletier, Roseman & Barnes, Barry L. Roseman, for appellants.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Michael J. Bowers, Attorney General, J. Robert Coleman, Deputy Attorney General, Janet E. Bradford, for appellee.

The raised expansion joint would be characterized as a “static” defect, “one which in and of itself is not dangerous.” Emory Univ. v. Duncan, 182 Ga. App. 326 (2) (355 SE2d 446) (1987). “Whether or not [Mrs. Froman’s] fall occurred the first time she used the [sidewalk], ‘the test would be the same — was this rise inherently dangerous so that, assuming the exercise of ordinary care for her own safety, [Mrs. Froman] could still have fallen.’ [Cit.] ... It was incumbent upon her, as a matter of law, to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path. [Cits.]” Id. at 329. The contrast in color between the expansion joint and the concrete of the sidewalk should have been apparent to Mrs. Froman. She cannot prevail against appellee under the theory that her view was obstructed or she was distracted by a crowd because she has not demonstrated that appellee created the “distraction” which diverted her attention proximately causing her injury. See Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (1) (263 SE2d 171) (1979). Furthermore, “[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]” Rossano v. American Legion Post, 189 Ga. App. 610 (3) (376 SE2d 698) (1988). Based on the foregoing, we conclude the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1172.
    COOLEY v. THE STATE.
    (398 SE2d 414)
   Cooper, Judge.

Appellant was indicted by a grand jury for the offense of criminal issuance of a bad check pursuant to OCGA § 16-9-20. The appellant waived his right to a jury trial and agreed to submit the case to the trial court on ten stipulated facts. The stipulations related that the magistrate court had issued a judgment against appellant, and appellant paid that judgment to the creditor with a check on a closed account. Appellant knew that the check would not be honored by the drawee. Two stipulations provided that the creditor did not advance additional credit, goods or services at the time of the issuance and acceptance of the check and that the judgment granted against appellant was for past due rents. The trial court found appellant guilty, and appellant appeals from the probated sentence and payments ordered by the trial court.

1. In his first enumeration of error, appellant contends that the conviction was in error because there was no “present consideration” for the check as required by the statute. OCGA § 16-9-20 (f) (2) (A) states that “present consideration” shall include without limitation “[a]n obligation or debt of rent which is past due or presently due.” Appellant’s argument that because the check was given to satisfy a judgment rendered by a magistrate court, it was no longer a debt of past due rent, is incorrect. “When the General Assembly enacted [OCGA § 16-9-20 (f)], it effectively removed the requirement of present consideration as to bad check offenses relating to payment of rent. . . .” Cobb v. State, 246 Ga. 567, 568 (272 SE2d 299) (1980). The judgment was a judgment for past due rents, as stipulated by the parties; therefore, the trial court did not err in finding the appellant guilty of the crime charged. We likewise disagree with appellant’s second enumeration that the court erred in construing subsection (f) of the statute too broadly. The trial court’s decision complied with the wording of the statute.

2. Appellant’s argument that the application of OCGA § 16-9-20 (f) in this case would violate the provisions in the Georgia Constitution prohibiting imprisonment for a debt was dismissed in Cobb v. State, supra. This enumeration has no merit.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Decided October 19, 1990.

Word & Flinn, T. Michael Flinn, for appellant.

William G. Hamrick, Jr., District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.


text:
    A90A1274.
    KIMBRIL v. THE STATE.
    (398 SE2d 416)
   Cooper, Judge.

Appellant entered a guilty plea in the superior court to the charges of entering an automobile, possession of tools for the commission of a crime and giving a false name to a law enforcement officer. At the commencement of the hearing before the trial court, the district attorney submitted her recommended sentence, and the appellant’s attorney stated that the appellant was not agreeing to that recommendation but was going to try to convince the court to enter a lesser sentence. After the court’s efforts to clarify whether the plea was in fact a negotiated or a non-negotiated plea, the appellant requested that he be allowed to withdraw his plea. The court refused and proceeded to inquire as to the State’s recommended sentence. When the district attorney mentioned that her' recommended sentence included restitution and a fine, the appellant stated that he was not aware of the inclusion of these elements in the recommended sentence and reiterated his desire to withdraw the plea. The court again refused. Prior to the announcement of the sentence, the appellant’s attorney concluded by explaining that at the beginning appellant was entering a non-negotiated plea; that during the hearing appellant decided to accept the negotiated plea; that when the State added restitution to the recommendation, appellant decided to withdraw his plea.

Appellant first asserts that the trial court erred by refusing to allow appellant to withdraw his guilty plea when such a request was made. We agree and reverse. “ ‘OCGA § 17-7-93 (b) permits a defendant to withdraw a guilty plea as a matter of right before sentence is pronounced.’ ” Agerton v. State, 191 Ga. App. 633, 634 (382 SE2d 417) (1989). Accord Jackson v. State, 172 Ga. App. 874 (324 SE2d 816) (1984), citing State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). In the instant case, appellant twice expressed his desire to withdraw his plea before the court orally pronounced the sentence. The court’s refusal to accept the withdrawal was in error. Due to our reversal, it is unnecessary to consider appellant’s remaining enumerations.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.

Decided October 19, 1990.

J. M. Raffauf, Alden W. Snead, for appellant.

Frank C. Winn, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    A90A1275.
    R & D TESTING & DRILLING, INC. v. ATLANTA TESTING & ENGINEERING, INC.
    (398 SE2d 415)
   Banke, Presiding Judge.

The appellant, R & D Testing & Drilling, Inc., brought this action against the appellee, Atlanta Testing & Engineering, Inc., seeking to recover damages for an alleged wrongful levy and trespass upon its business property. It brings this appeal from the grant of the defendant-appellee’s motion for summary judgment.

In March of 1983, the appellee brought suit against “Samuel J. Rowe, doing business as R & D Drilling, Inc.” to recover on a promissory note Rowe had signed in the following capacity: “R & D Drilling, Inc. by Samuel J. Rowe, its President.” It is apparent without dispute that R & D Drilling, Inc., was a trade name used by the appellant, R & D Testing and Drilling, Inc., that Rowe is the acknowledged president of that corporation, and that he was personally served with the complaint in that action. The action went into default, and Rowe thereafter consented to the entry of a judgment on the complaint in the amount of $9,280.05. He did so, however, in his capacity as President of R & D Testing and Drilling, Inc., rather than as an individual. On the basis of that judgment, the appellee obtained a fi. fa. and levied on the property of the appellant corporation, which then brought the present damage suit against the appellee on the theory that the judgment had not been entered against it but against Rowe personally. The trial court awarded summary judgment to the appellee based on a determination that the reason the judgment had been entered against Rowe, “doing business as R & D Drilling, Inc.,” rather than against the appellant corporation was because of confusion which had resulted from Rowe’s failure to file an answer in the prior action and to respond to post-judgment discovery. The court further determined that the appellant had acknowledged the debt and was estopped from denying it as the result of its knowledge that it was the true party in interest, combined with its failure to correct the mistake. Held:

While Rowe may have been sued personally, he consented to judgment acting in his representative capacity as president of the appéllant corporation; and the'corporation has in fact conceded in its brief in the present appeal that the parties “entered into a consent agreement whereby appellant agreed to pay the obligation” imposed by the judgment. We hold that the appellant is estopped under these circumstances from denying that it was obligated on the judgment. See Clark Bros. v. Wyche, 126 Ga. 24 (1) (54 SE 909) (1906); Parker v. Kilgo, 109 Ga. App. 698 (137 SE2d 333) (1964); Moody A.F.B. &c. Union v. Kinard, 116 Ga. App. 163 (156 SE2d 526) (1967). We accordingly affirm the award of summary judgment to the appellee.

Decided October 19, 1990.

Simmons & Simmons, Robert L. Simmons, for appellant.

Webb, Fowler & Tanner, Anthony O. L. Powell, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1261.
    LITTLEFIELD v. THE STATE.
    (398 SE2d 375)
   Banke, Presiding Judge.

The appellant was convicted in the Probate Court of Upson County of driving under the influence of alcohol. She appealed to superior court, where she was again found guilty of the offense, and then filed the present appeal to this court. Held:

1. The evidence was sufficient to enable a rational trier of fact to find the appellant guilty of driving under the influence of alcohol beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the results of a blood-alcohol analysis performed on a sample of blood extracted from her should have been excluded because there was no showing that the blood had been drawn by a “physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person,” as required by OCGA § 40-6-392 (a) (2). See generally Buffington v. State, 190 Ga. App. 365 (2) (378 SE2d 884) (1989).

The blood sample was drawn at a hospital in the presence of the investigating officer, a state trooper. Asked on cross-examination to identify the person who had performed the procedure, the trooper responded as follows: “I do not have those forms with me, but if you’ll allow me to go out to my car, I think I’ve got them out there.” Defense counsel did not respond to this offer but continued his questioning, as follows: “Q. Do you know what the qualifications were? A. I don’t remember if this was a RN nurse or a lab tech that drew her particular blood. Q. Okay. So you don’t . . . really know what the qualifications were, do you? A. If you can have me dismissed, I think I got it in my car. Q. Okay. I’m asking you now. Do you know what the qualifications were? A. I assume they were qualified, or they wouldn’t have been hired by the hospital. Q. Okay. So you just know it was somebody working at the hospital? A. Yes, sir. Q. Okay. And they have orderlies that work at the hospital? A. It was not an orderly, no, sir. I was sure of that. Q. Okay. Did you see a certificate that said orderly or I’m not an orderly? A. No, sir, but he (sic) wasn’t dressed like an orderly. Q. How was she dressed? A. Like a nurse.”

The state’s attorney interrupted the questioning at this point to make the following suggestion: “Your Honor, it seems to me that if [defense counsel] wants to know who drew the blood, and [the trooper] has the information in his car — I don’t [know] about the rest of this group, but I could use about three minutes to sit here and do nothing while he goes and gets it. . . .” Again, the appellant’s counsel expressed no interest in allowing the trooper to obtain the information in this manner but instead moved on to another subject. However, when, after the trooper had been excused, the results of the blood-alcohol test were subsequently offered as evidence, counsel objected on the ground that the identity and qualifications of the individual who had drawn the blood had not been proven.

Assuming arguendo that the testimony provided by the trooper would not otherwise have been sufficient to establish a proper foundation for the introduction of the test results, we conclude that, by ignoring the repeated offers by the trooper and the state’s attorney to produce the information regarding the identity and qualifications of the individual who had drawn the blood, the appellant’s counsel gave the impression that he did not intend to insist on such evidence. “[A] party will not be heard to complain of error induced by his own conduct. . . . [Cits.]” Southern Nitrogen Co. v. Manuel, 110 Ga. App. 597 (3) (139 SE2d 453) (1964). Under the circumstances, we hold that the trial court did not abuse its discretion in admitting the results of the blood-alcohol test over the appellant’s objection that a proper foundation had not been laid.

3. The appellant further complains that she was not given a copy of the scientific report setting forth the results of this blood test at least 10 days prior to the trial, in accordance with a demand for such discovery filed pursuant to OCGA § 17-7-211. However, the record before us contains no such written demand; and it is apparent from the transcript that if one was in fact filed, it was not filed until the day of the trial. “[F]or a request to be timely, whether it is made ‘at arraignment’ or at some other time, it must precede the tenth day before the trial of the case. Otherwise, it would be impossible for the state to comply with the statute.” State v. Meminger, 249 Ga. 561, 564 (292 SE2d 681) (1982). Accord Law v. State, 165 Ga. App. 687, 690 (302 SE2d 570) (1983), aff’d 251 Ga. 525 (307 SE2d 904) (1983).

Decided September 4, 1990

Rehearing denied October 22, 1990

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, for appellee.

4. The appellant asserts that the superior court judge was not empowered to review the case because he “holds one of the judgships (sic) which have was (sic) ruled illegally created in violation of Section 5 of the Voting Rights Act by the United States Justice Department on April 25,1990.” The record before us contains no support for this assertion; and the appellant did not, in any event, raise this issue in the superior court. Accordingly, this contention presents nothing for review.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A90A1223.
    C. W. MATTHEWS CONTRACTING COMPANY, INC. v. WALKER et al.
    (398 SE2d 297)
   Pope, Judge.

Appellant C. W. Matthews Contracting Company, Inc. (Matthews Contracting) appeals the trial court order granting appellee Rodney Levell Walker’s motion to open default.

Plaintiff Linda Diane Gover sued Walker following a two-car collision on Six Flags Drive in Cobb County, Georgia. Gover settled her claim against Walker and then filed suit against Matthews Contracting, individually and as next friend of her minor son who, according to the complaint, was born with permanent brain damage as the result of the accident. Matthews Contracting answered, denying liability, and filed a third-party complaint against Walker seeking both contribution and apportionment of any damages assessed against it on account of Gover’s claim. The third-party complaint was served on June 20, 1988. Walker failed to answer and the case went into default. On November 3, 1989, Walker filed a motion to open default along with affidavits in support of his motion. The trial court granted the motion to open default allowing Walker to respond to the third-party complaint. The trial court issued a certificate of immediate review and we granted Matthews Contracting’s application for interlocutory appeal.

1. In related enumerations of error, Matthews Contracting contends that the trial court erred in granting Walker’s motion to open default. “Under OCGA § 9-11-5 (b), ‘a prejudgment default (may) be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. (Cits.)’ Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199) (1984). (Emphasis supplied.) ‘This court has previously held that the “showing” required by this Code section to be made “under oath” includes the showing of a “meritorious defense.” ’ Ragan v. Smith, 188 Ga. App. 770, 772 (374 SE2d 559) (1988). Generally, the opening of a default rests within the sound discretion of the trial court. U. S. Elevator Corp. v. Smyrna Hosp., 182 Ga. App. 886 (3) (357 SE2d 322) (1987). However, compliance with the four conditions ‘is a condition precedent; in its absence, the trial judge [has] no discretion to open the default.’ Global Assoc. v. Pan American Communications, 163 Ga. App. 274, 275 (1) (b) (293 SE2d 481) (1982).” Grayson & Hollingsworth v. C. Henning Studios, 194 Ga. App. 531, 532 (391 SE2d 8) (1990).

Walker argues that the statement in his affidavit that he “was aware that the prior action [against him] had been settled” was sufficient to meet the meritorious defense requirement. We disagree. “An affidavit framed under this rule must be very full and explicit.” (Citation and punctuation omitted.) Cohutta Mills v. Hawthorne Indus. 179 Ga. App. 815, 816 (1a) (348 SE2d 91) (1986). “While the [affidavits] submitted by [Walker] in support of his motion to open the default in the present case set forth reasons for his failure to file a timely answer to the complaint, [they] did not disclose the nature of [Walker’s] defenses, and the answer . . . submitted with the motion [merely contained general denials of the allegations of the third-party complaint and] was not verified.” Grayson, supra at 532-533. Because the failure to plead a meritorious defense is alone fatal to the opening of a default, we are forced to conclude that the trial court was without discretion to grant Walker’s motion. See, e.g., Grayson, supra; Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (4) (360 SE2d 280) (1987); Global Assoc. v. Pan American Communications, 163 Ga. App., supra.

2. Walker posits that the trial court’s order opening default should also be upheld on the basis of the “defaulting-joint-defendant rule.” See Fred Chenoweth Equip. Co. v. Oculus Corp., 254 Ga. 321, 322 (328 SE2d 539) (1985). However, in Chenoweth our Supreme Court expressly rejected that rule, and thus we are without authority to apply it to the facts of this case. Accord Cole v. Smith, 182 Ga. App. 59 (3) (354 SE2d 835) (1987). Consequently, the trial court’s order opening the default must be reversed.

Decided October 22, 1990.

Gerard & Matthews, William T. Gerard, for appellant.

Carter & Butt, James E. Carter, Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, for appellees.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.