text:
    A92A1283.
    McNEAL v. THE STATE.
    (420 SE2d 653)
   McMurray, Presiding Judge.

Defendant McNeal appeals his conviction of three counts of “worthless check” (issuance of bad checks, OCGA § 16-9-20). The sole enumeration of error contends that the convictions should be reversed because the checks were not issued in exchange for a present consideration. Held:

Defendant McNeal was a general contractor in the homebuilding business. On a number of projects, defendant had contracted with Bramlett to do certain plumbing work. Four such projects were completed on Monday and Tuesday, April 9 and 10, 1990. The normal practice between these businessmen was that Bramlett submitted his bills on the Thursday following completion of a project. In this instance, the bills were submitted on April 12, 1990, although the five invoices show various dates. Bramlett anticipated payment on the next day or the following Friday, depending on inspections made of the work. Payment was not made on Friday, April 13, 1990, and Bramlett proceeded to attempt to locate defendant. On April 18, 1990, Bramlett located defendant, who wrote three checks and gave them to Bramlett for the five invoices. These three checks were dishonored for insufficient funds and are the basis of the charges at issue.

“ ‘A person commits the offense of criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.’ OCGA § 16-9-20 (a). . . . ‘Present consideration . . . means that the check must be in exchange for something of value. (Cit.)’ Griffith v. State, 249 Ga. 19, 20-21 (287 SE2d 187). Thus, ‘it must be proved that the party alleged to have been defrauded suffered loss resulting from its reliance on the defendant’s wrongful act as charged in the indictment.’ Hamilton v. State, 118 Ga. App. 842 (1) (165 SE2d 884). ‘However, the requisite of “present consideration” may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction.’ Bowers v. State, 248 Ga. 714, 715 (285 SE2d 702).” Hutto v. State, 198 Ga. App. 325, 326 (1) (401 SE2d 339).

In Griffith v. State, 249 Ga. 19 (287 SE2d 187) supra, that defendant issued three checks in payment of gasoline delivered to a service station he operated. One conviction, based on a check issued to pay for gasoline delivered the day the check was issued, was affirmed. However, checks issued three and eight days after the dates of delivery were held to not evidence a single contemporaneous transaction and those convictions were, overturned.

In the case sub judice, in denying defendant’s motions for directed verdict and for new trial, the trial court relied on the decision in Gilley v. State, 182 Ga. App. 681 (356 SE2d 655). In Gilley, one subcontractor, Hammond, expected immediate payment upon completion of his work pursuant to agreement with the defendant in that case, but delivery of this bad check was delayed three days due to Hammond’s inability to locate that defendant. Also, in Gilley, a second subcontractor, Cole, completed his work and after requesting immediate payment, agreed that payment by check be placed in the mail two days later. The check was not mailed as promised and Cole expended considerable effort to locate that defendant and obtain the second bad check a week-and-a-half later. This Court held in Gilley that a jury was authorized to find the requisite “ ‘present consideration’ ” for both checks. In its order on defendant’s motion for directed verdict or new trial, the trial court held that Gilley was controlling in the case sub judice because as in Gilley the delay in issuance of the check was caused by the “inability to locate defendant.”

After reviewing the authority relevant to the case sub judice, we are concerned as to whether all of the applicable cases can be reconciled. From Bowers v. State, 248 Ga. 714, 715 (285 SE2d 702), we learn that when the delivery of goods or services is followed more than two months later by delivery of a check as payment, the interval precludes, as a matter of law, any finding that the check was given in exchange for a present consideration. We also learn from Griffith that a check given in payment for a delivery of the same date is probably present consideration. In Berry v. State, 153 Ga. 169, 174 (111 SE 669), a check given in repayment of a loan made the previous day was held not to have been given for a present consideration, while the same result is reached in Griffith as to a check given three days after a gasoline delivery. However, in Singletary v. State, 192 Ga. App. 653 (385 SE2d 791), this Court held that the evidence was sufficient to support a finding that the exchange of goods and services for defendant’s check, delivered three days after completion of the work, was a single contemporaneous transaction. And, in Ledford v. State, 184 Ga. App. 556, 557 (1) (362 SE2d 133), this Court held that a jury was authorized to determine that a check, delivered one day after certain “griege goods” were picked up, was given for present consideration.

Unfortunately, many of these previous decisions, while stating the facts of a particular case and the applicable rules of law, fail to relate the reasoning which combines the two. Rather than attempting to deduce the implicit reasoning in the past cases, we shall merely address the case sub judice.

The law requires that the payee must give up something of value in reliance on the check. Griffith v. State, 249 Ga. 19, 21, supra. The example given in the footnote in Bowers, upon which Gilley and its progeny are predicated, must be read in connection with this requirement. Where the purpose of the defendant in giving the check was not to deprive the payee of anything, but was only to gain temporary respite from the duns of his creditor there is no attempt to defraud such as remains an element of the crime of issuance of bad checks. Berry v. State, 153 Ga. 169, 172, 173 (3), supra.

Decided July 2, 1992.

Thompson, Fox, Jolliff, Chandler & Homans, Joseph A. Ho-mans, for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

In the case sub judice, Bramlett had completed the delivery of goods and services no later than Tuesday, April 10, 1990. No immediate payment was expected by Bramlett, who understood that he would not be paid prior to that Friday and then only subject to a satisfactory inspection of the work on the intervening Thursday. The inspection on Thursday was apparently satisfactory as Bramlett then expected to be paid on Friday, but Bramlett did not expect to give up any additional thing of value at that time. Bramlett had already provided full consideration under his contract with defendant. Bramlett was not timely paid and began to dun defendant until finally defendant wrote the checks at issue on April 18, 1990. Defendant did not deprive Bramlett of anything on that date, but merely gained a temporary respite from Bramlett’s demands for payment. The issue of the checks by defendant cannot be reasonably viewed as having been a part of the same contemporaneous transaction as the delivery of the goods and services by Bramlett. There was never intended to be an exchange of goods and services at nearly the same point in time and such did not in fact occur due to the intervening inspection of the work and the passage of time. Defendant’s convictions must be reversed. Griffith v. State, 249 Ga. 19, 21 supra.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A92A1330.
    STUCKEY v. THE STATE.
    (420 SE2d 655)
   McMurray, Presiding Judge.

On January 22, 1992, judgment was entered in the Superior Court of Bibb County on defendant’s plea of guilty for possession of cocaine with intent to distribute, criminal attempt to possess cocaine with intent to distribute, burglary, aggravated assault with a deadly weapon, criminal attempt to commit extortion, four counts of false imprisonment and possession of a firearm during the commission of a felony. On February 5, 1992, defendant filed a pro se motion to withdraw his guilty plea. The trial court denied this motion and this pro se appeal followed. Held:

Decided July 2, 1992.

William M. Shurling III, for appellant.

Larry Stuckey, pro se.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

1. “The superior court’s jurisdiction to entertain a motion to withdraw the guilty plea ended after the term of court in which the judgment of conviction was rendered. Harden v. State, 177 Ga. App. 531 (339 SE2d 793) (1986).” Stargell v. State, 204 Ga. App. 45 (418 SE2d 372). In the case sub judice, defendant’s motion to withdraw the guilty plea was made outside the term of court in which the judgment of conviction was rendered. Consequently, we affirm the denial of defendant’s motion to withdraw his guilty plea. Stargell v. State, supra.

2. Defendant, as pro se, filed a document in this Court on May 4, 1992, entitled, “Request for Mandamus,” requesting this Court to order the trial court to appoint “competent and effective legal counsel” to assist him on appeal. It is unnecessary to entertain this request in light of the fact that defendant is now represented by appointed counsel who has filed an enumeration of errors and brief on behalf of defendant and in the light of our holding in Division 1 of this opinion.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

       The judgment of conviction was entered during the December 1991 term of court and the motion to withdraw the guilty plea was filed during the February 1992 term of court. OCGA § 15-6-3 (23) (A).


text:
    A92A1349.
    BROWN v. THE STATE.
    (420 SE2d 823)
   McMurray, Presiding Judge.

Pursuant to a multi-count indictment, defendant was charged with selling cocaine, in violation of OCGA § 16-13-30 (b), on four occasions. Although defendant had not been convicted previously of violating OCGA § 16-13-30 (b), the State gave defendant pre-trial notice that it would seek a life sentence pursuant to OCGA § 16-13-30 (d) “in the event of a conviction on a second count of Sale of Cocaine. . . .” Defendant was convicted upon all four counts of the indictment and the trial court imposed life sentences upon the second, third and fourth counts. Defendant appeals, contending the trial court erred in imposing life sentences pursuant to OCGA § 16-13-30 (d) in the absence of a prior conviction for a violation of OCGA § 16-13-30 (b). Held:

Decided July 2, 1992.

Charles C. Mayers, for appellant.

Michael C. Eubanks, District Attorney, J. Wade Padgett, Richard E. Thomas, Assistant District Attorneys, for appellee.

This case is controlled by State v. Sears, 202 Ga. App. 352, 354 (8) (414 SE2d 494), in which this Court held that in order for the imposition of a life sentence to be mandatory pursuant to OCGA § 16-13-30 (d), a defendant must have been convicted of violating OCGA § 16-13-30 (b) prior to his instant trial for violating OCGA § 16-13-30 (b). It follows that the trial court erred in imposing life sentences upon counts two, three and four of the indictment and defendant must be resentenced.

Judgment reversed as to sentences upon Counts 2, 3 and 4.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1397.
    FRAZIER v. THE STATE.
    (420 SE2d 824)
   McMurray, Presiding Judge.

Defendant was convicted of aggravated assault and possession of a firearm by a convicted felon and now appeals. Held:

In his sole enumeration of error, defendant contends the jury should not have been impaneled because he was not arraigned and did not waive arraignment. This contention is without merit. “The right of formal arraignment and plea will be conclusively considered as waived, where the defendant goes to trial before the jury on the merits, and fails, until after verdict, to bring to the attention of the court that he has not been formally called upon to enter a plea to the indictment. [Cits.]” Waller v. State, 2 Ga. App. 636 (1) (58 SE 1106). See also Gravitt v. State, 53 Ga. App. 353 (185 SE 594).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Decided July 2, 1992.

John V. Lloyd, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A0064.
    LAWSON v. THE STATE.
    (420 SE2d 600)
   Birdsong, Presiding Judge.

Joseph Lawson was indicted on 30 counts of “white collar” crime, involving multiple transactions of large purchases and shipments of computer equipment paid for by checks which appellant forged as “certified” checks of banking institutions, including one check for $21,000. He pleaded nolo contendere to one count of issuing a bad check, two counts of forgery, and six counts of theft by taking. The trial court reduced his sentences to time served and a probated sentence of ten years under the First Offender Act, OCGA § 42-8-60, and ordered him to pay $1,650 restitution. On the day he filed this notice of appeal, Lawson filed a motion for new trial on grounds of insufficiency of the evidence to support the “verdict.” He appeals pro se, raising objections to the indictments and contending he was in pain from teeth problems and back problems when his pleas wére made and that he believed entering these pleas was the only way to get relief and medication.

Appellant enumerates four errors on appeal of his pleas of nolo contendere, including the trial court’s failure to grant him a speedy trial and its error in permitting the State to recall a true bill of indictment and an entry of no bill. Held:

1. A motion for new trial is not the proper vehicle for withdrawing a guilty or nolo contendere plea. See Mathis v. State, 199 Ga. App. 538 (405 SE2d 528). The proper proceeding in this regard is a motion to withdraw the plea, which appellant did not make. If the motion for new trial had been made while the trial court still had jurisdiction of the case, the trial court would have been authorized to treat his pro se motion for new trial as a motion for withdrawal, and could consider his objections on their merits; so may we. Id. at 539; see State v. Newsome, 259 Ga. 187 (378 SE2d 125). Likewise, it is well established that a claim of involuntary plea may be raised for the first time on appeal. See Agerton v. State, 191 Ga. App. 633 (382 SE2d 417).

A valid plea of guilty waives all defenses to the charge, known or unknown, including all defenses to the indictment. Carroll v. Holt, 251 Ga. 144 (304 SE2d 60); Reliford v. State, 193 Ga. App. 363, 364 (388 SE2d 21); Morgan v. State, 191 Ga. App. 367, 369 (381 SE2d 583). And, a plea of nolo contendere stands on the same footing as a guilty plea, and likewise waives all defenses, known or unknown (Williams v. State, 174 Ga. App. 506 (330 SE2d 435); Wright v. State, 75 Ga. App. 764 (44 SE2d 569)), including objections to the indictment. See Reliford, supra. As to the standards for determining voluntariness of such a plea, see Bowens v. State, 194 Ga. App. 391 (390 SE2d 634); see also Mergel v. State, 198 Ga. App. 759, 760 (402 SE2d 800). If we find appellant’s pleas of nolo contendere were voluntarily made, he is deemed to waive all defenses including objections to the indictment. Reliford, supra; Williams, supra.

2. The record shows that appellant, who was represented by counsel at the plea hearing, had filed special and general demurrers to the indictment, discovery motions, and motions to suppress; and that he entered pleas of nolo contendere upon being fully informed of the charges and evidence against him, of his rights to pursue the motions including motions to suppress and pleas to the indictment, of his right to be free from illegal search and seizure and to exclude evidence on that account, of the effect of his nolo contendere pleas as a waiver of all these procedural and substantive rights, and of the fact that upon a trial and verdict of guilty the trial court could sentence appellant to 31 years in the penitentiary for the crimes charged. The hearing transcript shows appellant’s attorney stated he had counseled with appellant very strongly about the nature of the State’s case, the alternative of going to trial, and the potential of being convicted of a felony, “and he is willing to take this opportunity . . . [as] the best way ... to get on with his life.” The trial court interrogated appellant: “Q. Mr. Lawson, are you able to hear and understand my statement and questions? A. Yes. Q. Are you now under the influence of any alcohol, drugs, or any other substance? A. No, I’m not. Q. Has your lawyer explained the charges against you? A. Yes, he has. Q. Do you understand that by pleading [nolo contendere] you are giving up your right to a jury trial. . . . A. Yes, I do. Q. Do you understand that by pleading nolo contendere you are giving up your right not to incriminate yourself? ... to question your accusers? ... to subpoena witnesses on your behalf?” To all these questions appellant answered “Yes.” The trial court further asked: “Has anyone made any threats or promises to get you to plead nolo contendere? A. No, they have not. Q. Have you had a chance to discuss your case thoroughly with your lawyer? A. Yes, I have. ... Q. Do you understand the State’s recommendation? A. Yes, I do. Q. Do you accept that as a fair amount of restitution as part of this plea? A. Yes, I do. Q. Do you understand that the maximum sentence for these charges . . . is 31 years, and do you understand the court is not bound by any promises or recommendations and that the court can impose maximum sentence in this case? A. Yes, I do. Q. How do you plead to these charges? A. Nolo. Q. And do you want help from your lawyer to help you enter this nolo plea today? A. Yes, I do. Q. Are you satisfied with the services and advice of your lawyer? A. Yes, I am. Q. Have you understood all these questions and given truthful answers? A. Yes, I have.”

Decided June 10, 1992

Reconsideration denied July 6, 1992.

Joseph Lawson, pro se.

Robert E. Wilson, District Attorney, Robert E. Statham III, J. George Guise, Assistant District Attorneys, for appellee.

When Lawson signed the pleas, the court asked, “Mr. Lawson, has anyone made any threats, used any force, or promised you anything to get you to enter your plea? A. No, they have not.”

After more questions as to whether Lawson understood his constitutional rights or would like to ask questions, Lawson’s attorney stated that Lawson fully, knowingly, intelligently and voluntarily waived his right to trial and voluntarily tendered his pleas of nolo contendere. The court again interrogated Lawson: “Do you understand that you’re waiving all those rights [just discussed]? A. Yes, I do. Q. Are there any questions you’d like to ask about these proceedings? A. No. Q. Any statements you’d like to make to the court at this time? A. Not at this particular time, no. [The Court]: Mr. Lawson, I will accept your plea.” The trial court then sentenced Lawson.

We are satisfied that the trial court fully and completely interrogated Lawson as to the voluntariness of his plea in all respects, and we are satisfied that his pleas were voluntarily and knowingly made, without the influence of any fear, threat, promise, or other mitigation. There was no evidence or suggestion that Lawson suffered from toothache or other physical problems and believed that the only way to get medication was to make this plea. As in Mathis v. State, we find no basis to conclude Lawson pleaded while incompetent or under pressure; and we conclude his plea was knowingly and voluntarily made. Id. Consequently, his objections to the indictment and other defenses as raised in his enumerations of error are waived. Reliford, supra; Williams, supra.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A92A0497.
    HUNT v. THE STATE.
    (420 SE2d 656)
   Cooper, Judge.

Appellant was convicted by a jury of the sale and distribution of cocaine and sentenced to life imprisonment pursuant to OCGA § 16-13-30 (d). He appeals from the judgment and sentence entered on the conviction and from the denial of his motion for new trial.

The evidence reveals that the Georgia Bureau of Investigation conducted a long-term undercover drug investigation whereby agents made undercover drug buys over an extended period of time but made no arrests until the conclusion of the investigation. During one such drug buy, an undercover agent accompanied by a confidential informant went to a house previously identified by the informant as a location where drugs could be purchased. The agent and the informant went around to the back of the house where several persons were standing around talking. As they approached, a man standing in the doorway to the house asked them what they wanted. The informant told the man that the agent wanted to purchase $100 worth of crack cocaine to sell. The agent then accompanied the man to an area away from the confidential informant and the other persons who were in the yard. The agent gave appellant $100 in exchange for a package of crack cocaine. The confidential informant did not see the transaction take place but subsequently told the GBI that appellant was the man from whom the agent purchased the cocaine. The agent identified appellant in a photographic lineup, as well as at trial, as the man from whom he purchased the cocaine.

1. Appellant contends that the trial court erred in failing to require the State to disclose the identity of the confidential informant prior to trial or in conducting an in camera interview with the informant to determine the materiality of the informant’s testimony. In Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957), the Supreme Court set forth the following standard for determining when to limit the government’s privilege to withhold the identity of a confidential informant: “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61. The balancing test of Roviaro was embraced by our Supreme Court in Connally v. State, 237 Ga. 203 (227 SE2d 352) (1976) and is well established as the law of Georgia. Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977). We are unable to conclude that under the facts of this case, the trial court abused its discretion in not compelling disclosure of the informant’s identity. The informant participated in the transaction only to the extent of introducing the agent to appellant and telling appellant how much cocaine the agent wanted to buy. The informant did not see the actual sale take place. The agent also made an independent identification of appellant from a photographic spread. Appellant did not testify on his own behalf or call any witnesses. “[W]here the evidence sought from the unidentified source is required by [appellant] on ‘the mere possibility that the police might be impeached (it) is not enough to demand disclosure of the informer’s identity.’ [Cits.]” Connally v. State, 237 Ga. 203, 208 (2), supra; see also Josey v. State, 199 Ga. App. 780 (1) (406 SE2d 125) (1991).

Appellant’s reliance on Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988) is misplaced. In Moore the informant introduced the agent to defendant and was present along with a man known only as “Isaac” at the actual sale of cocaine to the agent. The agent testified that defendant sold the cocaine; however, defendant testified that Isaac sold the cocaine. We held that the informant’s disclosure could be compelled because the informant was “ ‘the only witness in a position to amplify or contradict the testimony’ of the [defendant] and the police officer.” Id. at 391. However, we also noted that if the informant’s identity were sought only for impeachment purposes, disclosure could not be compelled. Id. In light of the independent identification of appellant by the agent and the fact that appellant did not testify in his own defense, the only possible purpose for which appellant sought the informant’s identity was to impeach the agent’s identification of appellant as the person who sold the drugs. See Milsap v. State, 196 Ga. App. 820 (1) (397 SE2d 168) (1990). Therefore, the trial court did not err in refusing to compel the disclosure of the informant.

2. Appellant argues that his character was improperly introduced into evidence on several occasions.

(a) During opening statements, the prosecutor referred to appellant as a “dope dealer.” Appellant objected and moved for a mistrial. The trial judge denied the motion and instructed the jury to disregard the comment. “ ‘ “[T]he trial judge in passing upon a motion for mistrial ... is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Cit.)’ [Cit.]” Martin v. State, 193 Ga. App. 581, 587 (4) (388 SE2d 420) (1989). We find no abuse in the trial judge’s discretion.

(b) Appellant argues that the trial judge erred in admitting, as part of the State’s similar transaction evidence, the sentence appellant received in that case. The State introduced a certified copy of an indictment which included appellant’s plea of guilty to the charge of selling cocaine and the sentence appellant received. “We share appellant’s concern here that the sentence in a prior offense does not show motive, intent, scheme, and bent of mind; however, appellant must show not only error but harm. [Cits.]” Groble v. State, 192 Ga. App. 260 (2) (384 SE2d 281) (1989). While the better practice is to not admit the sentence in a prior offense where a similar transaction is involved, in this case it seems “highly probable” that the admission of the sentence did not contribute to the verdict. See Groble, supra.

(c) Appellant also contends that the trial court erred in not declaring' a mistrial when a witness for the State testified that appellant told him appellant was on probation. Appellant argues that this statement impermissibly placed his character in issue. Even if the statement placed appellant’s character in issue, in light of the admission of the indictment showing the sentence appellant received for the prior offense, we find that no reversible error resulted from the witness’ reference to appellant’s probation.

(d) Appellant argues that the trial court erred in allowing the State’s similar transaction evidence. This evidence, consisting of an undercover agent’s testimony that he was introduced to appellant by a confidential informant and that on one occasion he purchased cocaine from appellant at a location in the same area where appellant was selling drugs in the case being tried. “ ‘ “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” (Cit.) Before such evidence may be admitted, however, there must be evidence [that] the [appellant] was the perpetrator of the independent crime and sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter. (Cit.) Under the circumstances of this appeal, these conditions were satisfied, and the trial court did not err by admitting this evidence.’ [Cit.]” Davis v. State, 200 Ga. App. 44 (1) (406 SE2d 555) (1991).

3. In his third enumeration of error, appellant contends that the trial court erred in not requiring the State to conduct a pretrial lineup. Appellant argues that the identification of appellant by the undercover agent was a crucial element of the State’s case, and since the identification took place approximately three months after the sale, a lineup would have been useful in determining the reliability of the identification. We acknowledge that some jurisdictions have concluded that a defendant under some circumstances may be entitled to a pretrial lineup. See In the Interest of W. C., 426 A2d 50 (N. J. 1981). However, in the case sub judice, there is no evidence that the photographic identification by the agent was impermissibly suggestive. Nor does there appear to be any degree of doubt surrounding the agent’s in-court identification of appellant. Under these circumstances, we cannot conclude that the trial court erred in not ordering a pretrial lineup.

4. Appellant contends that his conviction is void because the jurors were not impanelled in accordance with OCGA §§ 15-12-120 and 15-12-65, which require that jurors be notified at least 25 days prior to the term of court. The failure of a juror to receive adequate notice is a defense to any contempt citation brought against that juror. OCGA § 15-12-65. However, we find no merit in appellant’s argument that his case was somehow prejudiced by the jurors’ failure to receive the requisite notice.

Decided July 6, 1992.

Robert H. Revell, Jr., for appellant.

Britt R. Priddy, District Attorney, for appellee.

5. In his final enumeration of error, appellant contends that his conviction is void because the trial judge was appointed pursuant to OCGA § 15-1-9.1 (b) (1) which provides: “If assistance is needed from a judge outside of the county, a superior court judge of this state . . . may make a request for judicial assistance in the court served by said requesting judge. . . .” Appellant argues that there is no record of a request for assistance having been made. We find no merit to appellant’s argument. Even if a request were not made, which appellant has failed to show by the record, appellant has not shown any ensuing harm. “ ‘ “It is an old and sound rule that error to be reversible must be harmful. (Cit.)” (Cits.)’ [Cit.]” Hall v. State, 198 Ga. App. 434, 435 (2) (401 SE2d 623) (1991).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A92A0655.
    WOMACK INDUSTRIES, INC. et al. v. LOADSTAR, INC.
    (420 SE2d 659)
   Pope, Judge.

Plaintiff Womack Industries, Inc. was the general contractor for the construction of an apartment complex. It entered into a subcontract with defendant Loadstar, Inc. for the construction and supply of certain prefabricated structural elements. Womack Industries, Inc. and Virgil Womack, the corporation’s owner, filed an action against defendant alleging, inter alia, breach of contract. Defendant counterclaimed for the amount allegedly remaining unpaid under the contract. After the first trial of the case resulted in a verdict awarding neither party damages, the trial court granted defendant’s motion for new trial. At the second trial, the jury specifically found that plaintiffs and not defendant breached the contract and judgment was entered awarding the defendant damages in the amount of $55,509, interest in the amount of $26,228 and attorney fees. Plaintiffs appeal.

Decided July 6, 1992.

Walters, Davis, Smith, Meeks & Pittman, Thomas E. Pujadas, for appellants.

Virgil Womack, pro se.

1. Two of plaintiffs’ enumerations of error relate to the trial court’s refusal to permit plaintiffs to introduce evidence of damages paid to the owner of the construction project as a result of construction delays which plaintiffs allege were due to defendant’s breach. Even if the evidence was improperly excluded, the error was harmless in light of the jury’s finding that defendant did not breach the contract, since the evidence related only to damages and not the defendant’s alleged breach of contract.

2. We reject plaintiffs’ argument that the trial court erred in denying their witness the opportunity to utilize a document to refresh his recollection of a telephone conversation with an employee of the defendant. Since the witness testified he recalled the specifics of the conversation, no need was shown for the use of the document to refresh the witness’ recollection.

3. We reject plaintiffs’ argument that the trial court erred in ordering the jury to disregard the testimony of one of plaintiffs’ witnesses that an employee of defendant came to the job site to view the materials plaintiffs claimed were defective and yet defendant failed to remedy the defect. The record shows the witness was ultimately permitted to testify that after defendant’s employee viewed the materials, defendant made no repairs to the materials and did not advise plaintiffs how to treat the problem.

4. Finally, plaintiffs argue the trial court erred in allowing defendant’s witness to testify concerning a written notice he said defendant sent to plaintiffs concerning defendant’s policy for repairing defects or damage to materials even though the written notice was not produced. Plaintiffs’ enumeration of error apparently attempts to raise an objection on the ground of the best evidence rule. That objection, however, was not raised at trial. An objection cannot be raised for the first time on appeal. See Bolden v. State, 150 Ga. App. 298 (3) (257 SE2d 367) (1979). The only objection raised by plaintiffs at the trial was that the testimony was “not germane.” Assuming the plaintiffs intended to raise the issue of the relevance of the testimony, we conclude the testimony was relevant because it related to the issue of mitigation of plaintiffs’ damages. Moreover, since the testimony related to damages, the admission of the testimony was at most harmless error since, as noted above, the jury specifically found the defendant did not breach the contract.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Adams, Clifton & Sanders, Janney E. Sanders, for appellee.


author: Carley, Presiding Judge.

text:
    A92A0290.
    PETTWAY v. THE STATE.
    (420 SE2d 619)
   Carley, Presiding Judge.

Appellant was tried before a jury on an indictment alleging that he had committed an armed robbery “by the use of a knife, the same being an offensive weapon. . . .” The State’s evidence showed appellant’s commission of an armed robbery by use of a knife. Appellant admitted the theft, but denied the use of a knife, claiming instead that the victim had mistaken a broken section of a television antenna for a knife. The jury found appellant guilty of armed robbery and he appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant’s sole contention on appeal is that the trial court erred in instructing the jury that armed robbery could be committed “by the use of an offensive weapon, or by any replica, article or device having the appearance of such a weapon.” Since he was indicted for the commission of an armed robbery “by use of a knife,” appellant urges that the above-emphasized language erroneously authorized the jury to convict him for having committed an armed robbery in a manner other than that which had been alleged in the indictment.

It is error to charge the jury that a crime may be committed by alternative methods, “when the indictment charges it was committed by one specific method. . . .” Walker v. State, 146 Ga. App. 237, 240 (1a) (246 SE2d 206) (1978). “If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective ‘because of a fatal variance between the proof at trial and the indictment returned by the grand jury.’ [Cits.]” Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987). By including the above-emphasized language in its charge, the trial court did instruct the jury on alternative methods of committing armed robbery which were not alleged in the indictment. See Cornett v. State, 218 Ga. 405, 406 (1) (128 SE2d 317) (1962). Accordingly, if there is “a reasonable possibility” that the jury convicted appellant for the commission of an armed robbery by use of “any replica, article or device having the appearance of [an offensive] weapon,” rather than the commission of an armed robbery “by use of a knife,” the conviction is defective under the fatal variance rule.

Unless there is some evidence that appellant committed an armed robbery by use of “any replica, article or device having the appearance of [an offensive] weapon,” there is no “reasonable probability that the jury convicted him of the commission of this type [armed robbery].” Childs v. State, supra at 253 (17). Appellant urges that his testimony denying the use of a knife, but acknowledging the possession of a broken section of a television antenna is such evidence. According to appellant, the broken section of a television antenna constitutes a “replica, article or device having the appearance of [an offensive] weapon” and, if the jury believed his testimony rather than the State’s evidence that he used a knife, there is a “reasonable probability” that his conviction is defective under the fatal variance rule.

Decided June 26, 1992

Reconsideration denied July 7, 1992

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

However, the broken section of a television antenna is not a mere “replica, article or device having the appearance of [an offensive] weapon.” It is an article fully capable of inflicting the same character of injury upon the victim as the knife which the indictment alleged that appellant had used and which the State’s evidence showed that he had used. A broken section of a television antenna places a victim in no less fear of being stabbed than if he were faced with a knife-wielding assailant. A knife-wielding assailant is no more capable of stabbing his victim than if he were armed with a broken section of a television antenna. “The rule of this State is that no fatal variance between the pleading and the proof exists where one weapon is charged in the indictment and a weapon of a similar nature capable of inflicting the same character of injury is shown by the evidence. [Cits.]” Habersham v. State, 79 Ga. App. 244, 245 (53 SE2d 578) (1949). Compare Cornett v. State, supra at 406 (1) (pistol which would not fire live ammunition). Accordingly, unlike Walker v. State, supra “[w]e are not faced with different ‘methods’ in the instant case. There was no variance between the method alleged and that which was proved.” Maxey v. State, 159 Ga. App. 503, 506 (2) (284 SE2d 23) (1981). The difference between the proof and the indictment concerned only the description of the actual weapon used to effectuate the armed robbery and did not constitute a fatal variance between use of an actual weapon and use of a mere replica, article or device having the appearance of an offensive weapon. There being no evidence that appellant committed the armed robbery other than by use of a knife or a weapon capable of inflicting a similar injury, there was no “reasonable probability” of a fatal variance and the “charge could not have confused or misled the jury. [Cit.]” Booker v. State, 164 Ga. App. 176, 177 (3) (296 SE2d 752) (1982).

Judgment affirmed.

Pope and Johnson, JJ., concur.

Robert E. Wilson, District Attorney, J. George Guise, Assistant District Attorney, for appellee.


text:
    A92A0390.
    BURRIS v. THE STATE.
    (420 SE2d 582)
   Pope, Judge.

Defendant David Lee Burris, Jr., was convicted by a jury of one count of aggravated child molestation and two counts of child molestation. He was acquitted of a third count of child molestation. Defendant appeals his convictions and the denial of his motion for new trial.

The victim and her younger brother lived with their natural parents, defendant and Julie Burris, for the first few years of their lives. In July 1988, when the victim was approximately three years old, the couple agreed to let Julie Burris’ mother, Tina Van Kleek (the children’s maternal grandmother) keep their children for a short period of time so the couple could have some time alone to get their marital and financial problems straightened out. Apparently, Julie Burris, who was only 15 years old when she married the defendant, was having a difficult time being a mother and was not properly caring for the children. A few weeks later when the couple tried to get back their children from their grandmother, Tina Van Kleek filed a deprivation petition and was given temporary legal custody of the children. The dispute between the couple and Tina Van Kleek continued up to and through the date of trial. Tina Van Kleek retained custody of the children throughout, although the couple attempted many times to convince her to return the children to them. The children, however, were allowed to visit their parents and occasionally stayed overnight at their parents’ apartment or with defendant’s parents (their paternal grandparents).

In April 1990, Tina Van Kleek believed that her granddaughter was exhibiting emotional problems. She contacted Cherokee County DFACS, who examined the child for signs of sexual abuse. The examiner observed no signs of sexual abuse and because the child denied that anyone had touched her, DFACS concluded that the child was experiencing separation anxiety and suggested that the child be allowed to spend longer periods of time with her parents. A few months later in June 1990, Tina Van Kleek brought home a book for children describing “good touching and bad touching.” After her grandmother read the book to her, the child accused defendant’s brother Lenny Burris (her paternal uncle) of “bad touching” her. Tina Van Kleek reported this incident to Gwinnett County DFACS, and the child was questioned by a Gwinnett County child abuse investigator. At that time, the child also accused David Williams, her mother’s brother-in-law (i.e. her uncle by virtue of his marriage to Julie Burris’ sister Kathy Williams) of “bad touching” her. The next day, however, Tina Van Kleek reported to the investigator that the child had recanted her accusation as to David Williams. The grandmother said that the child had lied because she thought her grandmother was going to make her go live with her Aunt Kathy. By accusing her Uncle David of “bad touching” her, she knew she would not be allowed to live with her aunt and uncle and, thus, not be forced to leave her grandmother. Eventually, although it is not clear from the record when, the victim also accused her father of “bad touching” her.

The victim was examined by a pediatrician specializing in child abuse who testified at trial that the child’s vaginal area was completely normal, but in his opinion, the victim had been sodomized anally. He could not give an opinion as to how often she had been molested or when the molestation occurred. He also testified that anal molestation was hard to detect unless a child was examined while on her stomach. In his opinion, the victim may very well have been molested prior to April 1990 when she was examined by Cherokee County DFACS, but the sexual abuse was not detected because the physician may have only examined the child’s vaginal area while she was lying on her back. The witness was also asked as to whether the condition of the child’s anus could have been caused by chronic constipation, a problem that the child allegedly suffered from when she was younger. The physician testified it was his opinion that chronic constipation would not have caused these conditions.

A child psychologist who treated the victim testified at trial that the child displayed many of the symptoms of child sexual abuse accommodation syndrome. The witness also testified that the victim told her that her father had put his penis in the child’s anus.

Defendant’s defense at trial was that if the child had in fact been abused (defendant contended that the condition of the anus might have been caused by chronic constipation), then the guilty party was someone else who may have had access to the child while she was in the care of Tina Van Kleek. Defendant wanted to introduce evidence that two persons who resided in Tina Van Kleek’s home at the same time as the victim were known child abusers and may have been the individuals who had molested the child. The trial court, however, granted the State’s motion in limine excluding this evidence from trial. Defendant also claimed that the victim’s identification of her father as a “bad toucher” was unreliable because the child had lied about her Uncle David and had not initially named her father as a “bad toucher.” Finally, defendant claimed that the child’s accusations against defendant were “coached” by Tina Van Kleek, who had always disapproved of her daughter’s marriage to defendant and was accusing the defendant of his daughter’s molestation so that she would not lose legal custody of her grandchildren to the couple. Defendant presented evidence showing the child’s emotional dependency on her grandmother in support of this defense.

1. Defendant first claims the trial court erred by allowing the State to introduce similar transaction evidence consisting of testimony by Cindy Sexton, Julie Burris’ former sister-in-law (i.e. Julie Burris’ brother’s ex-wife), that Julie Burris had told her that the parents had once had intercourse while the victim was in their bed and afterwards allowed the child to touch the defendant’s penis; that the witness had once been in the couple’s house when certain sexual devices were delivered by UPS; and, that there were numerous sexually-explicit magazines and sexual devices in the couple’s home. Julie Burris denied most of these allegations and testified that she and the witness were no longer friendly because the witness had “made a move” on the defendant.

Defendant claims the admitted similar transaction evidence was neither criminal, nor was it similar to the crime charged. This court, however, has consistently held in child molestation cases that “ ‘magazines showing natural and unnatural sex acts and other apparent sexual devices and paraphernalia designed for (sexual) stimulation’ can have a tendency to show a bent of mind toward similar sexual activity. [Cits.]” Tyler v. State, 176 Ga. App. 96, 99 (1) (335 SE2d 691) (1985). This testimony is admissible to show bent of mind and lustful disposition of the defendant, even if the content of the material does not relate to children. Stamey v. State, 194 Ga. App. 305 (2) (390 SE2d 409) (1990). Moreover, this holding has been extended to permit not only the admission of such material into evidence, but to also allow oral testimony to show that the defendant had once possessed these items. Holman v. State, 202 Ga. App. 57 (2) (413 SE2d 234) (1991). “ ‘Possession of such . . . item(s) does have a tendency to show bent of mind toward sexual conduct (Cits.)’ [Cits.], particularly where the evidence shows he was in possession of the material when the crimes were committed. [Cits.] It would be illogical to say that such sexually depictive and explicit material has no relevance to the lustful disposition of the defendant in these kinds of cases, or that they say nothing about his state of mind, as to inclination towards and preoccupation with such matters. If there is any question about it, ‘ “(i)t is ... a well established rule of law that . . . the rules of evidence require that the evidence be admitted and its weight and effect left to the jury.’” [Cit.]” Stamey v. State, supra at 307-308. Accordingly, the trial court did not err in allowing the similar transaction testimony into evidence.

2. Defendant also enumerates as error the trial court’s refusal to allow Julie Burris and her brother, James Evans, to testify that they were molested as children by Tina Van Kleek’s younger brother David Everette (Julie Burris’ maternal uncle), that David Everette had tried to rape Julie Burris three years earlier when she was staying at Tina Van Kleek’s home, and that David Everette had stayed at Tina Van Kleek’s home during the period of time that the victim lived with her grandmother. Defendant also enumerates as error the trial court’s refusal to allow defendant’s father, David Lee Burris, Sr. (the victim’s paternal grandfather), to testify that during one of the victim’s visits to his home, he noticed bruises on the child’s arm and shoulders. When he asked the child why she was crying, she said she did not want to return to Tina Van Kleek’s home because she was afraid of Bruce Van Kleek, Tina Van Kleek’s husband (Julie Burris’ stepfather). She further explained that “Poppa Bruce” hits her when she showers with him. Defendant made an offer of proof of this testimony at trial outside the presence of the jury.

Relying on Henderson v. State, 255 Ga. 687 (1) (341 SE2d 439) (1986), defendant claims the trial court erred in not allowing these witnesses to testify in support of his defense of misidentification (i.e., that a person other than defendant had abused the victim). We first address the testimony regarding David Everette’s alleged abuse of Julie Burris and her brother. This court has previously held under similar circumstances that absent a showing that the third party may have actually abused this victim, this kind of testimony is not relevant. Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991). Because the victim in this case never named David Everette as a “bad toucher” and defendant failed to offer any other evidence which would have supported his position that the victim was sexually molested or abused by David Everette, the trial court properly excluded this evidence.

Defendant’s enumeration of error relating to Bruce Van Kleek’s alleged abuse of the victim must be examined in a different manner because defendant was able to offer evidence supporting his contention that the victim may have been abused by Bruce Van Kleek. Cf. Sales v. State, supra. Therefore, we must determine whether the trial court’s refusal to allow into evidence testimony about the child’s accusation against Bruce Van Kleek was correct for any other reason. “Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than [the] accused, is inadmissible. [Cits.]” Stancil v. State, 196 Ga. App. 530 (1) (396 SE2d 299) (1990). Moreover, “evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex. [Cit.]” Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990). In Hall, however, this court held that although evidence of prior molestations may not be admissible for either of these purposes, such evidence may be admissible to “establish other possible causes for the behavioral symptoms exhibited by the child, which were described as typical of child sexual abuse accommodation syndrome, and to explain the medical testimony regarding her injuries. The fact that evidence may be inadmissible for one purpose does not warrant its exclusion when it is relevant and admissible for another purpose.” (Citations and punctuation omitted.) Id. at 525. In the case sub judice, defendant did not seek to introduce evidence about the victim’s accusation against Bruce Van Kleek for the purpose of showing the child’s nonchastity or preoccupation with sex, but rather to explain the medical testimony indicating that the victim had been sodomized and to support his claim that someone other than defendant was the guilty party. In light of the fact that there was some evidence in this case that the victim may have had a strong motive to fabricate her accusation against defendant (i.e., so that she could stay with her grandmother), that the victim had first falsely accused one of her uncles of “bad touching” her so that she would not be forced to leave her grandmother, and that the victim did not initially accuse defendant of molesting her, we cannot say that the exclusion of the evidence showing that the victim had accused Bruce Van Kleek of abusing her during this same time period was harmless error. “Evidence enough to raise a reasonable doubt of defendant’s guilt in the mind of a juror, not evidence sufficient to convict [Bruce Van Kleek], would be adequate to change the outcome of this case. Both the rules of evidence and fairness lead to the result that defendant should be allowed to prove, if he can, that [the victim had also accused Bruce Van Kleek of abusing her] so that defendant’s [defense] stands in a more believable light.” Henderson v. State, supra at 689. Thus, the testimony concerning the victim’s accusation about Bruce Van Kleek was relevant in this case, and the trial court’s grant of the State’s motion in limine excluding such evidence was reversible error. See Walker v. State, 260 Ga. 737 (1) (399 SE2d 199) (1991); cf. Stancil v. State, supra, where evidence of a prior molestation was not being offered for a limited purpose.

3. Prior to trial, defendant requested the trial court to charge the jury on circumstantial evidence by instructing them that “if the facts and evidence in this case and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, of the crime charged in the indictment, the justice and humanity of the law compels the acceptance of the theory which is consistent with innocence. . . .” Relying on Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), defendant alleges the trial court erred by failing to give the requested charge. We disagree.

In Robinson v. State, the Supreme Court held that “where the [S]tate’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Id. at 699-700. Because the State’s case against defendant in this case did depend in part on circumstantial evidence, we agree that the trial court was required to charge the jury on circumstantial evidence. However, contrary to defendant’s assertion, the. transcript reveals that the trial court did properly charge the jury on circumstantial evidence and the language it employed was substantially similar to that in OCGA § 24-4-6. Thus, there is no doubt that the requirements of Robinson v. State have been met in this case.

Decided April 24, 1992

Reconsideration denied July 7, 1992.

Ronnie K. Batchelor, for appellant.

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

Moreover, the equal theories charge requested by defendant was taken from Davis v. State, 13 Ga. App. 142 (1) (78 SE 866) (1913), and “has been criticized from the date it was written.” Booker v. State, 156 Ga. App. 40, 42 (4) (274 SE2d 84) (1980), rev’d on other grounds, Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981). “ ‘[T]he failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is no longer a ground for new trial. (Cits.) The trial judge gave ample instructions on [circumstantial evidence], on the presumption of innocence and the necessity of proving the defendant’s guilt beyond a reasonable doubt, and it was not error to fail to charge in the exact language requested.’ [Cits.]” Id. at 42. See also Gabbidon v. State, 184 Ga. App. 475 (3) (361 SE2d 861) (1987). Thus, this enumeration of error is without merit.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A92A0480.
    BELCO ELECTRIC, INC. v. BUSH. KROGER COMPANY v. BUSH. LaVISTA ASSOCIATES, INC. v. BUSH. PM REALTY ADVISORS, INC. et al. v. BUSH.
    A92A0481.
    A92A0482.
    A92A0483.
    (420 SE2d 602)
   Andrews, Judge.

After Timothy Broyles, age 16, was shot and killed outside a Kroger store by a store employee on June 11, 1989, the deceased’s divorced parents, Robert Broyles and Hilary Bush, separately filed and voluntarily dismissed a series of actions against various defendants seeking damages for their son’s wrongful death as a result of the shooting. In the latest of these actions filed on June 4, 1991, Bush sued five defendants, who all sought dismissal under OCGA § 9-11-41 (a) on the basis that three previous voluntary dismissals of the wrongful death action operated as an adjudication on the merits in their favor. The trial court denied the motions to dismiss, and we granted the appellants’ applications for interlocutory appeal.

The following wrongful death actions were filed and voluntarily dismissed by either Broyles or Bush prior to Bush’s present action:

1. On July 7, 1989, Broyles filed the first wrongful death action against The Kroger Company (Kroger) in U. S. District Court. Broyles voluntarily dismissed this action on July 13, 1989.

2. On July 14, 1989, Broyles filed the second action against Kroger and John Muyquiz, the gunman, in Fulton Superior Court.

3. On December 12, 1989, Bush filed a third action against Kroger in Fulton Superior Court.

4. On July 17, 1990, the second and third actions were consolidated by order of the Fulton Superior Court.

5. On August 29, 1990, Broyles filed a voluntary dismissal of the second action, and on October 15, 1990, Bush voluntarily dismissed the third action.

6. On April 23, 1991, Bush filed another wrongful death action in DeKalb Superior Court naming as defendants, Kroger and the following defendants associated with the ownership and management of the shopping center where the Kroger store was located: LaVista Associates, Inc. (LaVista); PM Realty Advisors, Inc. (PM Realty); Public Employees Retirement System of Nevada (Public Employees Retirement System), and Wheeler Management, Inc. Bush voluntarily dismissed this action on June 3, 1991.

Subsequent to the above filings and dismissals, Bush filed the present wrongful death action on June 4, 1991, against Kroger; LaVista; Public Employees Retirement System; PM Realty; and, Belco Electric, Inc. (Belco) (alleged to be responsible for maintenance of lighting at the shopping center), all of whom raised timely defenses of res judicata based on the previous voluntary dismissals under OCGA § 9-11-41 (a), and moved for dismissal from the action.

Case No. .A92A0481 (Kroger)

Prior to the present complaint, this wrongful death claim had been previously brought in the first action separately filed and dismissed by Broyles; the consolidated action brought and dismissed by Broyles and Bush, and yet another action separately filed and dismissed by Bush. The voluntary dismissal provisions of OCGA § 9-11-41 (a) were intended in part “to afford a plaintiff, faced with a contrary verdict or other untenable position, a second chance to litigate his suit despite the inconvenience and irritation to the defendant.” (Emphasis in original.) Griggs v. Columbus Bank & Trust Co., 188 Ga. App. 741, 743 (374 SE2d 347) (1988). Subsection (a) of the statute provides that “[a] dismissal under this subsection is without prejudice, except that the filing of a third notice of dismissal operates as an adjudication upon the merits.” OCGA § 9-11-41 (a). The statute provides a res judicata defense to any party against whom relief is being sought under the same claim which has been brought and voluntarily dismissed on three previous occasions. See T. V. Tempo v. T. V. Venture, 182 Ga. App. 198, 200 (355 SE2d 76) (1987).

The trial court recognized that the wrongful death claim had been voluntarily dismissed on three previous occasions, but held that each parent had a right to assert a wrongful death cause of action independent of the other so that an adjudication on the merits of Bush’s claim would occur only after three such actions in which Bush was a plaintiff were voluntarily dismissed. Since Bush had brought and voluntarily dismissed the action only twice prior to filing the present action, the trial court found there was no adjudication on the merits.

Under OCGA § 19-7-1, the right to recover for the wrongful death of a child, who dies without leaving a spouse or child, is a single cause of action vested jointly in the parents of the deceased if they are married and living together. Under OCGA § 19-7-1 (c) (2) (C), “[i]f both parents are living but are divorced, separated, or living apart, the right shall be in both parents. However, if the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as provided in this subsection.”

In the case of parents divorced, separated or living apart, the statute creates a single cause of action vested in both parents, which may be brought by both parents together, or by one parent on behalf of both parents. Bell v. Sigal, 254 Ga. 78, 79 (326 SE2d 730) (1985). As to why the previous actions were brought by only one parent, the record contains only Bush’s affidavit filed in response to the motions to dismiss, which reflects that she did not consent to join in Broyles’ first action in U. S. District Court, and was unaware the federal suit had been dismissed. The affidavit does indicate that Bush received a copy of the complaint filed by Broyles in federal court, and inexplicably, denies any knowledge of Broyles’ Fulton Superior Court suit, which was consolidated with Bush’s suit in that court. There is no indication as to why Broyles did not join with Bush in bringing the last two suits, including the present one. Nevertheless, under OCGA § 19-7-1 (c) “it is clear . . . that the legislature intended to protect the right of both parents, regardless of their marital status, to a cause of action for the wrongful death of their child. . . . Parents divorced, separated or living apart share the right of action, and one may proceed without the other. Where one parent undertakes to prosecute the cause, the other is nevertheless bound by such action and the law provides for equitably apportioning any proceeds. OCGA § 19-7-1 (6).” Blanton v. Moshev, 262 Ga. 254, 255 (416 SE2d 506) (1992).

As provided in OCGA § 9-11-3, “[a] civil action is commenced by filing a complaint with the court.” See Harris v. Sampson, 162 Ga. App. 241, 243 (290 SE2d 165) (1982) (previous civil actions deemed commenced for purposes of OCGA § 9-11-41 (a) even though defendant not served in one suit and not named in another). Under OCGA § 19-7-1 (c) (2) (C) as construed in Blanton, supra, the absent parent is not a necessary party under OCGA § 9-11-19 (a), and either parent, as a real party in interest, was capable of commencing the action. Despite any unresolved issues of control over the suit between parents who are divorced, separated or living apart, if only one parent commences and voluntarily dismisses the wrongful death action three times, this has the effect of an adjudication on the merits under OCGA § 9-11-41 (a) against the rights of both parents, together or separately, to bring the same action for a fourth time.

We find the previous complaints filed by Broyles and Bush were actions commenced and voluntarily dismissed within the meaning of OCGA § 9-11-41 (a). The present wrongful death action pending against Kroger was previously filed and voluntarily dismissed three times, once separately by Broyles, once by Broyles and Bush in the consolidated action, and once separately by Bush. Accordingly, there was an adjudication on the merits, and the trial court erred by denying Kroger’s motion to dismiss.

Case No. A92A0480 (Belco)

Case No. A92 A0482 (LaVista)

Case No. A92A0483 (PM Realty et al.)

As to the remaining four appellants, LaVista, PM Realty, and Public Employees Retirement System were named as defendants in only one of the previously dismissed wrongful death actions, and Belco was named as a defendant for the first time in the present action. These appellants argue that under OCGA § 9-11-41 (a) three previous voluntary dismissals of the wrongful death action operates as an adjudication on the merits as to them even though they have not been defendants in three previous dismissals of the action. In other words, they argue that the controlling factor is the third voluntary dismissal of the same cause of action rather than the named party defendants.

The filing of a voluntary dismissal of an action in accordance with OCGA § 9-11-41 (a) is without prejudice, “except that the filing of a third notice of dismissal operates as an adjudication upon the merits.” Although various defendants were named in the suits, the present action, and all of the previous actions brought and voluntarily dismissed by Broyles and Bush, sought recovery on the same claim, the wrongful death of their son as a result of being shot outside the Kroger store. Under the plain language of OCGA § 9-11-41 (a), an adjudication on the merits is based not on a requirement that the same defendant was three times dismissed, but because an action seeking recovery on the same claim was brought and voluntarily dismissed three previous times. Thus, the statute is designed to prevent a plaintiff from repeatedly filing actions for the same claim against any defendant, not only previously named defendants. See Harris, supra at 243; Southeastern Hose v. Prudential Ins. Co. of Am., 167 Ga. App. 356 (306 SE2d 308) (1983). Three previous voluntary dismissals of the wrongful death claim operated as an adjudication on the merits, and the trial court erred by denying the appellants’ motions to dismiss.

Judgments reversed in Case Nos. A92A0480, A92A0481, A92A0482, and A92A0483.

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

Decided June 10, 1992

Reconsideration denied July 7, 1992

Tittsworth & Grabbe, Michael W. Tittsworth, for appellant (case no. A92A0480).

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, for appellant (case no. A92A0481).

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Kathryn A. Cater, for appellant (case no. A92A0482).

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Debra E. LeVorse, for appellants (case no. A92A0483).

Mullman & Associates, Roy S. Mullman, Long & Associates, Nick Long, Jr., Steve Berne, for appellee.

       Since the second and third actions had been previously consolidated, we treat these as a single voluntary dismissal of one action under OCGA § 9-11-41 (a).

       Bush argues that such a rule is subject to abuse by one parent who may, without notice to the other parent, file and voluntarily dismiss an action three times and destroy any right of recovery. In most instances a parent’s diligent pursuit of rights under OCGA § 19-7-1 (c) to exercise control in the suit and participate in distribution of any proceeds will be sufficient protection of the right to recovery. Nevertheless, in bringing a wrongful death claim a parent is not free to deliberately or negligently abuse these procedures to the detriment of the other parent. Parents who are divorced, separated or living apart owe to one another a duty analogous to that of a surviving spouse’s duty to surviving children to “prudently, assert, prosecute, or settle the wrongful death claim,” and a failure to do so which proximately causes the loss of the other’s right to recovery may subject them to liability. See O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373, 374 (349 SE2d 382) (1986).

       LaVista’s constitutional claims were not presented to or ruled upon by the trial court, and present nothing for appellate review. Archie v. Scott, 190 Ga. App. 145, 146 (378 SE2d 182) (1989).


text:
    A92A0573.
    CHANDLER v. THE STATE.
    (421 SE2d 288)
   Andrews, Judge.

Antonio Chandler was convicted by a jury of aggravated assault and aggravated battery upon a police officer engaged in the performance of her official duties; possession of a firearm while committing these offenses, and possession of a firearm by a convicted felon.

Viewed in favor of the verdict, the evidence shows that Chandler and three co-defendants, armed with handguns, drove together in a car to the Thicket Apartments in DeKalb County at about 11:15 p.m. on September 26, 1990, for the purpose of robbing a certain Thicket resident who they believed carried large sums of money. Upon arrival, they drove through the complex looking for a blue-colored car owned by the resident. By chance, DeKalb County Police Officer, Tina Dillard, who lived at Thicket Apartments, arrived home in uniform driving her blue Honda, which was similar to a blue Honda owned by the targeted resident. Upon parking her car, Officer Dillard watched as the defendants pulled their Camaro in behind her car. Although she could not identify any individual defendant, Officer Dillard observed that the Camaro was occupied by four young black males — a description consistent with the four co-defendants. At least two of the defendants exited the car. Officer Dillard saw one of the men walk to the passenger side of her car, and another positioned himself on her driver’s side behind a car she had parked next to. She looked out the passenger side, and saw a man wearing a ski mask and pointing a gun at her. As she reached for her service weapon, the defendant on the passenger side opened fire, and another defendant immediately began firing at her from the opposite side. As she moved to exit the car, Officer Dillard was struck first by a bullet in her face, and then by another bullet in her side. Despite her wounds, she took cover between her car and the adjacent car, and returned fire until the gunmen fled on foot, and the driver sped off in the Camaro.

Officer Dillard was hospitalized for bullet wounds to her face and side. In addition to the resulting scars, at the time of trial, she was expecting to undergo additional surgery for removal of the bullet which remained lodged in her face. At the scene, police found two handguns, a .38 revolver and a .357 revolver, bullet fragments, numerous spent bullet casings, and Officer Dillard’s bullet-riddled car. The Camaro, with bullet holes and shattered glass, was found abandoned the next day.

One of the co-defendants, Andre Lewis, was apprehended the night of the shooting about a half-mile from the scene. After first giving the police false names for the co-defendants, Lewis identified Anthony Gates, Olin Dismuke, and Antonio Chandler as the others involved in the shooting. Arrest warrants were issued, and several days after the shooting Dismuke turned himself in to police. Dismuke testified as follows: He, Chandler, Gates, and Lewis drove to Thicket Apartments on the night of the 26th in the Camaro to take some money from a known gambler called Joe For Show, who lived there. Dismuke drove the car, and Chandler, Lewis, and Gates had handguns. As they were driving around the apartment complex looking for Joe For Show’s blue car, Chandler spotted Officer Dillard’s blue Honda, and said, “That’s the car right there. Let’s get out and let’s get him.” Chandler, Gates, and Lewis got out, and put on ski masks. Chandler went to the passenger side of the Honda with his gun pulled, and when he saw Officer Dillard, reach for her weapon, he fired first. Gates immediately started shooting from the opposite side. Officer Dillard fired back, and the others ran off. Dismuke ducked as Officer Dillard’s shots hit the Camaro. He was grazed in the head by one shot, then drove off and later abandoned the car. Chandler called Dismuke the next day, and told him that when he looked in the car and saw that Dillard was a police officer, he shot her in the face. Chandler also told Dismuke he knew Lewis had been caught.

The State presented evidence of statements made by Chandler. About a week after the shooting, police received information that Chandler could be found in an apartment in Fulton County. During a search of the apartment, Chandler was found hiding under a pile of clothes in a closet. As he was pulled up from the floor, Chandler blurted out, “I was there. I didn’t shoot anybody.” In later statements, he told police he could take them to Gates, the only co-defendant who had not been apprehended at that point. When questioned about his relationship to the co-defendants, Chandler told police he knew Lewis and Dismuke because they worked for him selling cocaine. He also said that a man called T-Rocks, who lived at Thicket Apartments, worked for him, and had been robbed of money which belonged to Chandler. Chandler later gave another statement denying that he was present or involved in the shooting. Chandler did not testify at the trial.

Gates was apprehended and testified at trial that Chandler was not present at the shooting. However, Gates admitted that prior to the trial he had told police and the district attorney that he was present at the shooting along with Chandler, Lewis, and Gates, and that he saw Chandler fire his gun. Evidence also showed that Gates told police Chandler was the gunman on the passenger side of Officer Dillard’s Honda, and that Chandler was the leader of the operation whose idea it was to go to Thicket Apartments.

After a verdict was returned on all the other counts against Chandler, the State presented evidence of Chandler’s previous armed robbery conviction in support of the remaining count of possession of a firearm by a convicted felon.

1. Chandler claims the trial court erroneously put his character into issue by admitting, over a continuing objection, evidence that Lewis, Dismuke, and a person called T-Rocks sold cocaine for Chandler. During arguments on Chandler’s motion in limine to exclude this evidence, the State contended it was relevant to show that Chandler and the three co-defendants went to Thicket Apartments to commit an intended robbery or “hit” for the purpose of stealing cocaine money. On this representation, the trial court denied the motion in limine, and allowed Chandler a continuing objection. At the close of the evidence, Chandler moved for a mistrial claiming the state failed to produce any evidence demonstrating the relevancy of Chandler’s cocaine dealings.

The State presented no evidence to show that the co-defendants went to Thicket Apartments for a cocaine-related purpose. The evidence showed only that Joe For Show, the intended victim who lived at the complex, was a gambler known to carry large sums of money. There was no evidence tying Joe For Show to the robbery of cocaine money from T-Rocks, who worked for Chandler and lived at the same complex. At best, this evidence showed a relationship, unrelated to the present events, between Chandler and two co-defendants in which Chandler was the leader. The State clearly established the co-defendants’ presence and Chandler’s role without the cocaine connection.

Generally, no evidence of the defendant’s bad character is admissible unless the defendant first put his character into issue. Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982); Causey v. State, 154 Ga. App. 76, 79 (267 SE2d 475) (1980). However, if evidence is relevant and material to an issue in the case it is not excluded because it also incidentially places the defendant’s character into evidence. Norman v. State, 197 Ga. App. 333, 336 (398 SE2d 395) (1990). We conclude that evidence of Chandler’s cocaine dealings was not relevant for any permitted purpose, and erroneously placed the defendant’s character into issue. OCGA §§ 24-2-2; 24-9-20 (b); Jones v. State, 257 Ga. 753, 754-760 (363 SE2d 529) (1988).

Nevertheless, because the defendant must demonstrate harm as well as error to warrant a reversal, we decline to hold this is reversible error. Given the eyewitness testimony of Dismuke, along with the defendant’s own statements and those of Gates, the error was harmless because it is highly probable it did not contribute to the jury’s verdict. Johnson v. State, 238 Ga. 59, 60-61 (230 SE2d 869) (1976); Worley v. State, 201 Ga. App. 704, 707 (411 SE2d 760) (1991); Baptiste v. State, 190 Ga. App. 451, 452-453 (379 SE2d 165) (1989); Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986). Since no mistrial was mandated to ensure a fair trial, the trial judge did not abuse his discretion by denying Chandler’s motion. Stanley, supra at 4; Dye, supra at 825. Moreover, “[a] motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” (Citations and punctuation omitted.) Worley, supra at 705; compare Baptiste, supra at 452 (continuing objection coupled with continuing motion for mistrial at the time testimony was admitted).

2. Chandler contends that testimony presented by the State from Annette Handley was exculpatory, and was not provided to Chandler prior to trial in violation of his written request for such material made under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Contrary to his pre-trial statements, Gates testified Chandler was not present at the shooting, and that he told police someone named Shorty or Black did the shooting. He denied that he knew Chandler as Shorty. The State called Handley, Gates’ girl friend, who testified that she knew Chandler through Gates, and that she had heard Gates and others refers to Chandler as Shorty. Brady protects defendants from the prosecution’s suppression of exculpatory evidence. Walter v. State, 256 Ga. 666, 668 (352 SE2d 570) (1987). The primary value of Handley’s testimony was not exculpatory of Chandler, but inculpatory since it corroborated evidence of Gates’ pre-trial statements to police that he knew Chandler as Shorty, and that Chandler did the shooting. Even if it had some value to Chandler as impeachment of Gates, it is not information of such value that its nondisclosure would amount to a constitutional violation of the defendant’s right to a fair trial under Brady. Brooks v. State, 182 Ga. App. 144, 145 (355 SE2d 435) (1987). Moreover, there is no evidence the State suppressed the impeaching value of the evidence in violation of Brady, since it was disclosed at trial after Gates’ testimony and prior to Handley’s appearance. Castell v. State, 250 Ga. 776, 781-782 (301 SE2d 234) (1983).

Alternatively, Chandler asserts that Handley’s testimony that she heard others besides Gates refer to Chandler as Shorty was inadmissible hearsay. Even if it was, it was cumulative of other evidence presented at trial which established Chandler’s involvement in the shooting, and does not constitute reversible error. Moon v. State, 199 Ga. App. 94, 97 (404 SE2d 273) (1991).

3. Chandler asserts that the trial court neglected to charge the jury that an essential element of aggravated assault and aggravated battery on a peace officer, as charged in the indictment, was that Chandler knew the victim was a police officer. In its charge, the trial court read the aggravated assault and aggravated battery counts to the jury, which provided: (Count one) that the defendant “did make an assault on the person of Officer Tina Dillard, with a handgun, a deadly weapon, knowing that said Officer Tina Dillard was a peace officer engaged in the performance of her official duties.” See OCGA § 16-5-21 (a) (2), (c). (Count two) that the defendant “maliciously caused bodily harm to another, to-wit: Officer Tina Dillard by seriously disfiguring her body, to-wit: her face by shooting her with a handgun while she was engaged in the performance of her official duties.” See OCGA § 16-5-24 (a), (c). The trial court elsewhere defined the elements of the offenses of aggravated assault and aggravated battery, but in doing so did not instruct that an element of the charged offenses was that the defendant acted with knowledge that the victim was a peace officer. In concluding its charge, the trial court instructed the jury on the use of special verdict forms employed for the aggravated assault and aggravated battery counts by charging the jury that if it found the defendant guilty of aggravated assault and aggravated battery, it must decide as an additional issue as to each of those counts whether the assault (or battery) was made on a police officer engaged in the performance of her official duties.

For both counts the court provided separate special verdict forms with spaces for the jury to determine whether the defendant was guilty or not guilty of aggravated assault and aggravated battery.. Then the forms presented the same question with respect to the aggravated battery and aggravated assault counts: “If the jury finds the defendant guilty of aggravated assault [battery], was the assault [battery] made on a police officer while the police officer was engaged in the performance of her official duties?” The forms indicate the jury concluded the defendant was guilty of aggravated assault and guilty of aggravated battery. The jury responded yes to the propounded question on the aggravated assault and aggravated battery verdict forms.

As charged in counts one and two of the indictment, the defendant was charged with the offenses of aggravated assault on a police officer, and aggravated battery on a police officer. Under Bundren v. State, 247 Ga. 180, 181-182 (274 SE2d 455) (1981), the Supreme Court has held that the charge of aggravated assault on a police officer states an offense requiring proof of the essential element that the defendant knew the victim was a police officer. OCGA § 16-5-21 (c). The charge of aggravated battery on a police officer is defined in similar terms, and, likewise, includes as an essential element that the defendant knew the victim was a police officer. OCGA § 16-5-24 (c). The failure to instruct the jury that an essential element on both of these charges is that the defendant knew the victim was a police officer ordinarily requires either reversal and remand for a new trial, or resentencing on the lesser included offenses of aggravated assault and aggravated battery. See Bundren, supra at 181-182; Hudson v. State, 189 Ga. App. 201, 202 (375 SE2d 475) (1988); Britt v. State, 184 Ga. App. 445, 446 (361 SE2d 710) (1987). Although the trial court in Cornwell v. State, 193 Ga. App. 561, 562 (388 SE2d 353) (1989), failed to specifically instruct the jury that an essential element of the offense of aggravated assault on a police officer is knowledge that the victim was a police officer, we found the charge, though deficient, as a whole was adequate to inform the jury of all the elements of the offense. There, the court charged in the language of the indictment that the offense was committed “knowing said officer . . . was a peace officer,” and immediately thereafter instructed the jury that the State had the burden of proving each element of the indictment beyond a reasonable doubt. Id. at 562-563. The reasoning of Cornwell is inapplicable here for several reasons. Although the aggravated assault count, as read to the jury, stated that the offense was committed “knowing that Officer Tina Dillard was a peace officer,” the aggravated battery count contained no language charging such knowledge. Thereafter, the court instructed the jury that the State had the burden of proving every element of the crimes charged, but followed those instructions by defining the elements of the charges of aggravated assault under count one and aggravated battery under count two without any reference to the element of defendant’s knowledge that the victim was a police officer. Moreover, the question posed to the jury on the verdict forms did not require the jury to conclude the defendant knew the victim was a police officer, but only whether the offenses were in fact committed on a police officer.

We conclude the charge was inadequate, and the convictions under counts one and two of the indictment must be vacated. Since the State has not expressed a preference for retrial or resentencing, the case is remanded for either a retrial on these counts, or resentencing on the lesser included offenses of aggravated assault and aggravated battery. Bundren, supra at 181-182; Hudson v. State, supra at 202; Britt v. State, supra at 446.

Decided June 16, 1992

Reconsideration denied July 7, 1992

Michael Mears & Associates, B. Michael Mears, for appellant.

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

4. We find no merit in Chandler’s claim that the evidence was insufficient to establish that he knew the victim was a police officer, or that it was insufficient to show the officer was engaged in performing her official duties. The State presented evidence showing that Officer Dillard was wearing her DeKalb County officer’s uniform when Chandler saw her, recognized she was a police officer, and shot her. Although employed as a police officer for DeKalb County, on the night of the shooting Officer Dillard had been working earlier in the day at her part-time employment providing security for Bank South, and was returning home from a friend’s house where she had dinner after leaving Bank South. Nevertheless, when Chandler held her at gunpoint, Officer Dillard reacted in her official capacity as a police officer. “In addition to specified duties, all law enforcement officers have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day, on and off duty.” Duncan v. State, 163 Ga. App. 148 (294 SE2d 365) (1982).

Judgment vacated and remanded with directions in part, and affirmed in part.

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

       In its charge to the jury, the trial court instructed that any evidence of improper or criminal conduct was to be considered only as it may be relevant to proof of other facts and circumstanes surrounding the incident on trial, and should have no other part in their consideration of guilt and innocence.


text:
    A92A0638.
    DORTCH v. THE STATE.
    (420 SE2d 778)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of driving on the left side of a roadway in violation of OCGA § 40-6-45 and of driving under the influence in violation of OCGA § 40-6-391 (a) (1). He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant moved for a continuance based upon the absence of a defense witness. However, appellant was unable to show that the absent witness had been served with a subpoena. Accordingly, there was no error in denying the motion for a continuance. Brown v. State, 169 Ga. App. 520, 521 (1) (313 SE2d 777) (1984).

Decided June 25, 1992

Reconsideration denied July 7, 1992

Richard T. Bridges, Russell T. Bridges, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

2. The evidence was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. An enumeration of error predicated upon the giving of an Allen charge is without merit. The charge was not rendered coercive by the trial court’s inclusion therein of the statement that the case would have “to be determined by some jury at some time. . . .” Concepcion v. State, 200 Ga. App. 358 (1) (408 SE2d 130) (1991). The charge included the cautionary instruction that the trial court was “certainly not asking, nor suggesting, that any person on [the] jury give up honestly held convictions.” See Willingham v. State, 134 Ga. App. 603, 607 (5a) (215 SE2d 521) (1975).

4. The trial court’s failure to give appellant’s requests to charge is enumerated as error. However, written requests to charge were not timely submitted to the trial court, who was not made aware of appellant’s requests until after the charge had been given. “All requests to charge shall be . . . submitted to the court ... at the commencement of trial. . . .” Uniform Superior Court Rule 10.3. Accordingly, appellant’s “requests were not timely submitted and it was not error for the court to refuse to give them.” Curtis v. State, 224 Ga. 870, 874 (9) (165 SE2d 150) (1968).

5. Appellant’s remaining enumerations of error have been considered and found to be either moot or meritless.

Judgments affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0658.
    HIGHTOWER v. KRYSTAL COMPANY.
    (420 SE2d 762)
   Carley, Presiding Judge.

Appellant-plaintiff initiated this tort action and, on July 2, 1990, service of process was made on appellee-defendant’s registered agent. The case went into default, however, and the issue of damages was eventually tried before a jury without an appearance by appellee. On October 31, 1990, judgment was entered on the jury’s verdict as to appellant’s damages. On March 13, 1991, appellee filed a motion to set aside the judgment or, in the alternative, for new trial. The basis for the motion was that appellee had been unaware that the suit had gone into default. After a hearing, the trial court granted appellee a new trial as to damages only. Appellant’s motion for reconsideration was denied, but the trial court certified its order for immediate review. Appellant’s application to this court for interlocutory appeal was granted and a timely notice of appeal was filed. See Aetna Cas. & Surety Co. v. Cantrell, 197 Ga. App. 672 (1) (399 SE2d 237) (1990).

Decided June 23, 1992

Reconsideration denied July 7, 1992

Paul C. Parker & Associates, William S. Sarandis, for appellant.

Cashin, Morton & Mullins, A. L. Mullins, Jr., D. Todd Markle, for appellee.

Appellee never filed an answer to appellant’s properly served complaint. Compare Union Life Ins. Co. v. Aaronson, 109 Ga. App. 384 (3) (136 SE2d 142) (1964). This failure to file an answer was attributable to appellee’s agents. A party who is in default for his failure to file a responsive pleading after proper service is deemed to have waived his right to all further notice, including notice of the time and place of trial. OCGA § 9-11-5 (a); Green v. Snellings, 260 Ga. 751, 752 (2) (400 SE2d 2) (1991). Accordingly, the failure to appear at trial to contest the issue of appellant’s damages is likewise attributable to the failure of appellee’s agents to file a timely answer. “The entry of default judgment being attributable entirely to [appellee’s] own . . . agent[s], the binding effect of that judgment cannot now be avoided. [Cit.]” Miller v. U. S. Shelter Corp. of Del., 179 Ga. App. 469, 473 (3) (347 SE2d 251) (1986). Compare Union Life Ins. Co. v. Aaronson, supra.

“The mere fact that counsel and his [client] had no [actual] knowledge that [suit had been filed or that] the case was on the calendar and set for trial is not in itself sufficient to support the grant of a new trial. The application, although addressed to the sound legal discretion of the trial judge ([OCGA § 5-5-25]) must be supported by a showing of some meritorious explanation of the absence, as well as a meritorious defense. [Cits.]” Southern Arizona School for Boys v. Morris, 123 Ga. App. 67, 68 (179 SE2d 548) (1970). In the instant case, appellee’s “extraordinary motion for a new trial . . . wholly [failed] to set forth any facts constituting providential cause. Neither [was] it shown . . . that [appellee had any] meritorious defense to [appellant’s] claim [as to the extent of her injuries]. Under these circumstances the trial judge abused [its] discretion in granting [appellee’s] extraordinary motion for a new trial.” Brawner v. Wilkins, 114 Ga. App. 263, 264 (3) (150 SE2d 721) (1966).

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0692.
    CRA TRANSPORTATION, INC. et al. v. ROLLS ROYCE MOTORS, INC. et al.
    (420 SE2d 757)
   Pope, Judge.

Plaintiffs/appellants CRA Transportation, Inc. and Alfred R. Chouinard II brought suit against defendants/appellees Rolls Royce Motors, Inc. and Mitchell Motors, Inc. alleging, inter alia, that defendants misrepresented the condition of a Rolls Royce automobile plaintiffs purchased from defendants. The case proceeded to trial before a jury; however, following the close of plaintiffs’ case in chief, the trial court directed a verdict against plaintiffs and in favor of defendants on the basis that plaintiffs failed to offer evidence concerning the proper measure of damages.

Plaintiffs timely filed their notice of appeal in the State Court of DeKalb County on June 18, 1991. On June 28, 1991 the clerk of that court who prepares the records for transmission to the appellate courts sent plaintiffs’ attorney a letter stating the costs for preparing the appeal record. The letter was sent certified mail and was received by plaintiffs’ attorney on July 2, 1991. Plaintiffs failed to pay costs and on August 20, 1991 defendant Rolls Royce Motor Cars, Inc. filed a motion to dismiss the appeal. Costs were paid on August 21, 1991. Following a hearing, the trial court entered an order on September 23, 1991 dismissing the appeal on the basis that there had been an unreasonable and inexcusable delay in the transmission of the record to this court which was caused by plaintiffs’ failure to pay costs. Plaintiffs filed a notice of appeal from the order dismissing their original appeal on October 21, 1991. Held:

1. Plaintiffs first argue that the trial court erred in dismissing their appeal because the clerk had not prepared the record for forwarding to this court at the time the letter requesting appeal costs was received by plaintiffs. Plaintiffs posit they are not required to pay “advance” or “estimated” costs, and are only required to pay costs that are actually incurred. We find no merit to this argument. OCGA § 5-6-48 (c) requires only “notice, mailed by registered or certified mail, of the amount of costs.” There is no requirement that the state court clerk first photocopy the record and then send the notice of costs. The state court appeals clerk testified at the hearing on the motion to dismiss that costs are determined by multiplying the number of pages to be photocopied by the cost per page and then adding a small fee ($5.50) for recording and certifying the record. An additional $5 fee is also added to the costs in those cases in which a transcript is to be sent with the record. Thus, the notice received by plaintiffs in this case contained calculated, not “estimated” costs. The clerk also testified that, although she had not photocopied the record at the time the notice was mailed, once the costs were paid and the transcript filed the record could be photocopied and then forwarded to the appellate court the next day.

Relying on OCGA § 5-6-43 (a), plaintiffs also argue that the duty of the clerk to prepare the record on appeal is mandatory, and does not depend upon any further action by the appellant. However, notwithstanding the obligation of the clerk to prepare the record, the obligation of the appellant is to pay costs for preparing the record on appeal or to file an affidavit of indigency. See Long v. City of Midway, 251 Ga. 364 (306 SE2d 639) (1983). The clerk in this case testified that it was the policy of the DeKalb County State Court to request payment of costs prior to photocopying the record because the court had lost “a couple of thousand dollars” when appellants failed to pay costs after the record was photocopied. We find nothing unduly burdensome, unreasonable or unfair about this policy and have uncovered no authority which would prohibit such a practice. This enumeration, therefore, is without merit.

2. Relying on OCGA § 9-15-11 plaintiffs also argue appeal costs must be itemized. However, that section, entitled “Inclusion of costs in judgment; itemization and endorsement on execution” clearly applies to costs to be assessed against a party upon entry of judgment and is inapposite to the facts of the present case. As stated in Division 1, OCGA § 5-6-48 (c) requires only that “notice” of the amount of costs be mailed to the appellant. There is no requirement under the Appellate Practice Act that appeal costs be itemized. Considering the simple nature of the costs involved (photocopying charges plus other small incidental fees), it would serve no discernible purpose to require that these costs be itemized. Plaintiffs here clearly received “notice” of the “amount of costs” as provided by statute. We find no error requiring reversal of the trial court’s order dismissing the appeal in this case.

3. Plaintiffs also argue that the trial court erred in dismissing the appeal against defendant Mitchell Motors because it did not file a separate motion to dismiss until the day the order dismissing the appeal was entered. OCGA § 5-6-48 (c) provides that the trial court may, after notice and an opportunity for hearing, dismiss an appeal under the circumstances described in that section. The trial court’s authority to dismiss the appeal does not appear to be dependent upon the filing of a motion to dismiss by each appellee. Moreover, the record reveals that Mitchell Motors did file such a motion, although not until the day the order dismissing the case was entered. Under the circumstances here, we find no merit to the argument that the appeal against Mitchell Motors should be reinstated.

Decided June 8, 1992

Reconsideration denied July 7, 1992

Glenville Haldi, for appellants.

Scoggins, Ivy & Goodman, Luke A. Kill, Schwall & Ruff, Emory A. Schwall, for appellees.

4. Inasmuch as the trial court did not err in dismissing the appeal in this case, it is unnecessary for us to consider the remaining enumerations of error.

Judgment affirmed.

Carley, P. J., and Johnson J., concur.

       Plaintiffs cite OCGA § 9-15-4 and Uniform State Court Rule 36.10 for the proposition that the only costs that can be demanded in advance are filing fees. Suffice it to say that that code section and state court rule, clearly pertaining only to the filing of complaints or petitions, provide no authority for the argument urged by plaintiffs in this case.