author: Johnson, Judge.

text:
    A96A2298.
    DEPARTMENT OF PUBLIC SAFETY v. BAFFORD.
    (478 SE2d 444)
   Johnson, Judge.

The Georgia Department of Public Safety suspended the nonresident driving privileges of Jeffery K. Bafford, an Illinois resident, after he was arrested for DUI in Atlanta. The superior court reversed. We granted the department’s petition for discretionary review. We now reverse the superior court, and reinstate the suspension of Bafford’s Georgia driving privileges.

A police officer observed Bafford sitting at the wheel of his car, stopped in an intersection and shouting at a pedestrian. The officer administered field sobriety tests and, based on the results, arrested Bafford for DUI. The officer read Bafford an implied consent warning regarding blood testing. Bafford asked what would happen to his Illinois license if he refused to take the test. Bafford testified the officer replied: “[A]s far as he knew I could drive ... he wasn’t for sure — he did say ‘I’m not for sure’ but the State of Illinois would not find out and the only state you will not be able to drive in is the State of Georgia.” The officer’s account of the conversation did not differ materially from Bafford’s.

Bafford refused the test. He later challenged the suspension of his Georgia driving privileges before an administrative hearing officer, contending he had been misled about the effect a refusal would have on his Illinois license. The hearing officer upheld the suspension. That decision was apparently affirmed in an administrative review, though the decision is not in the record on appeal. The superior court reversed, finding that an implied consent warning was required to be “meaningful and unambiguous,” while the officer’s advice to Bafford had been “contradictory and confusing,” and contained statements that were “false and/or misleading.”

Decided November 20, 1996.

Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Neal B. Childers, Senior Assistant Attorney General, Carol A. Callaway, Assistant Attorney General, for appellant.

Spruell & Dubuc, Brian M. Dubuc, for appellee.

When the Court of Appeals reviews a superior court judgment in a case under the Administrative Procedure Act, our function “is to determine whether the . . . superior court has in [its] own final ruling committed an error of law.” DeWeese v. Ga. Real Estate Comm., 136 Ga. App. 154, 155 (1) (220 SE2d 458) (1975). The Department of Public Safety contends the superior court committed legal error in finding that the officer’s statement to Bafford was false or misleading. We agree.

“[T]he State of Georgia cannot control or know for certain what other states will do [in response to a refusal to submit to an alcohol test] . . . and the rule regarding warnings for out-of-state residents certainly should not depend on which foreign state the driver is from and how that state handles such situations.” State v. Coleman, 216 Ga. App. 598, 599 (455 SE2d 604) (1995). The officer was therefore correct to tell Bafford that he did not know how officials in the State of Illinois would handle his refusal to be tested, and Bafford’s own testimony shows that he understood the officer’s uncertainty. Bafford’s “argument that a warning that refusal to submit to the test would ‘possibly’ result in suspension did not permit him to make an intelligent choice in the matter strains credulity.” Ivie v. State, 151 Ga. App. 496, 498 (3) (260 SE2d 543) (1979). Compare Coleman, supra, and Deckard v. State, 210 Ga. App. 421, 423 (436 SE2d 536) (1993), in which we held it was unlawfully coercive for officers to tell non-residents that test refusal would cause their home states to revoke or suspend their driver’s licenses.

Judgment reversed.

McMurray, R J, and Ruffin, J., concur.

       We affirmed Bafford’s DUI conviction in an unpublished opinion. Bafford v. State, Case No. A96A1504, July 16, 1996.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A1155.
    MURPHY v. WOMETCO CABLE TV OF FAYETTE COUNTY, INC. et al.
    (478 SE2d 398)
   McMurray, Presiding Judge.

Carolyn Murphy filed an action against Wometco Cable TV of Fayette County, Inc. (“Wometco”) to recover for injuries she allegedly sustained after tripping and falling on a television cable that Wometco abandoned on her lawn. Wometco denied the material allegations of the complaint and filed a motion for summary judgment, asserting that any injuries Murphy sustained were the result of a failure to exercise ordinary care for her own safety. The evidence and all inferences and conclusions arising therefrom should be construed most favorably toward the party opposing the motion for summary judgment. See Mull v. Mickey’s Lumber &c. Co., 218 Ga. App. 343, 344 (1) (461 SE2d 270).

On May 1, 1993, Carolyn Murphy noticed that Wometco’s overhead television cable was sagging, and about a week later she found the cable loosely stretched on the ground across her driveway and yard, close to the house. Murphy reported the problem, but Wometco did not respond. A week passed and the cable remained. Frustrated and perturbed, Murphy again telephoned Wometco, and this time a Wometco agent assured Murphy that the downed television cable would be removed, “as soon as possible.” A day or two later, at about 8:30 in the evening on May 11, 1993, Murphy set out for the grocery store with her husband and grandchild, and on the way she noticed that the downed television cable was no longer in the yard. Murphy assumed that Wometco had removed the obstruction, as promised. Later that evening, Murphy learned that this assumption was wrong.

Upon returning home from shopping at about 9:15 p.m., Murphy exited the passenger’s side of her car, retrieved two full grocery bags and traversed a shadowy course — over the driveway and through the lawn — to her home’s entrance. Just before reaching the door, however, Murphy’s foot tangled in something and she went down, falling hard and injuring her knee. Sprawled on the ground and surrounded by fallen groceries, Murphy discovered that she had tripped over Wometco’s downed television cable. It was coiled in a “really grassy” area, a few feet from her house’s “front porch.”

This appeal followed an order granting Wometco’s motion for summary judgment. Held:

“Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury. [Cits.]” Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810). The case sub judice does not fall within the exception. That is to say, in light of Wometco’s assurances to Murphy that the loose television cable would be removed from Murphy’s yard “as soon as possible,” we cannot say (as a matter of law) that it was unreasonable for Murphy to assume that the cable was no longer in her front yard. Such questions are for a jury, not the trial court upon summary adjudication. Notwithstanding, Wometco argues that the case sub judice is controlled by Fitzgerald v. Storer Cable &c., 213 Ga. App. 872 (446 SE2d 755). We do not agree.

Decided November 5, 1996

Reconsideration denied November 21, 1996.

Robert K. Prater, for appellant.

In Fitzgerald, the plaintiff fell over a television cable that had been in his front yard for about 20 months. The cable was in plain view, the plaintiff had traversed the cable at least five times a day during this 20-month period and the plaintiff “acknowledged that when mowing the lawn he and other members of his family accommodated the presence of the cable by moving it manually so as to avoid running the lawnmower over it.” Id. at 874 (1). Because the undisputed evidence in Fitzgerald plainly and palpably revealed that the plaintiff knew or should have known about the open hazard on his property, this Court affirmed summary judgment in favor of the cable company because plaintiff chose to work around the hazard and thereby failed to exercise ordinary care for his own safety. The circumstances of the case sub judice are not so plain, palpable and undisputed.

First, Murphy did not voluntarily choose to walk near an open hazard. The downed television cable was obstructing the entrance path to her home. Second, Wometco gave Murphy firm assurances (no more than a couple of days before Murphy fell) that the hazard would be removed from her yard “as soon as possible.” Third, unlike the circumstances in Fitzgerald, it is not clear whether the downed cable was plainly visible. To this issue, Murphy testified that she did not see the cable when she departed for the grocery store; that she did not see the cable when she returned home; that it was dark when she returned from the grocery store and that the cable was coiled in a “grassy area” where she fell. Finally, unlike the plaintiff in Fitzgerald, there is no proof that Murphy ever manipulated the cable or routinely examined its location and presence on her property. On the contrary, Murphy’s testimony indicates that she is a sedentary person; that she rarely leaves home and that she thus only saw the cable a couple of times before her fall. Accordingly, there being genuine issues of material fact regarding Wometco’s alleged maintenance of a hazard on Murphy’s property and Murphy’s alleged failure to watch out for her own safety, the trial court erred in granting Wometco’s motion for summary judgment.

Judgment reversed.

Johnson and Ruffin, JJ, concur.

Baker, Pacious & Hamilton, Kathleen M. Pacious, for appellees.


author: Ruffin, Judge.

text:
    A96A1306.
    GREAT SOUTHERN MIDWAY, INC. v. HUGHES.
    (478 SE2d 400)
   Ruffin, Judge.

Great Southern Midway, Inc. (“Great Southern”) sued Hughes for breach of contract. Great Southern obtained a judgment, and Hughes appealed to the Georgia Supreme Court. Great Southern filed a garnishment action and now appeals the trial court’s order limiting post-judgment interest to the period of May 24, 1994 through November 29, 1994. For reasons which follow, we reverse.

The record shows that during the pendency of the appeal to the Supreme Court and after the grant of a motion to require a supersedeas bond and Hughes’ failure to post the bond, Great Southern filed a garnishment action against Hughes’ NationsBank account. NationsBank answered the garnishment, depositing $447,087.33 into court. Hughes traversed the answer. On November 29, 1994, the trial court conducted a hearing on Hughes’ traverse. On January 6, 1995, the trial court filed an order denying the traverse, but staying Great Southern’s collection of its judgment pending the outcome of Hughes’ Supreme Court appeal.

The Supreme Court affirmed a portion of the judgment on March 6, 1995. Subsequently, the trial court granted Great Southern’s motion for disbursement of the garnished funds. However, the trial court limited Great Southern’s post-judgment interest to the period of May 24, 1994 (the date judgment was entered) through November 29, 1994 (the date a hearing was conducted on Hughes’ traverse).

Great Southern asserts that the trial court erred in limiting post-judgment interest to the period of May 24,1994 through November 29, 1994. We agree.

OCGA § 7-4-12 provides that “[a]ll judgments in this State shall bear interest upon the principal amount recovered at the rate of 12 percent per year. . . .” This post-judgment interest is due “from the date the judgment is entered until the date the judgment is paid. . . .” Dept. of Transp. v. Delta Machine Products Co., 162 Ga. App. 252, 253 (1) (291 SE2d 104) (1982). Post-judgment interest is not abated by an appeal of the judgment, even if the judgment is appealed by the party in whose favor it was rendered. Henley v. Mabry, 125 Ga. App. 293 (187 SE2d 309) (1972).

Decided November 5, 1996

Reconsideration denied November 21, 1996.

Groover & Childs, Denmark Groover, Jr., for appellant.

Glaze, Glaze & Fincher, Thomas M. Conway, Myles E. Eastwood, for appellee.

Hughes has cited no authority indicating that the filing of a garnishment tolls the accrual of post-judgment interest, even where the garnishee pays the funds into court. While this scenario may well satisfy the judgment if the judgment creditor is allowed to withdraw the funds and satisfy the judgment without delay and in the time prescribed by our garnishment statutes, those are not the circumstances presented in this case. Rather, in the present case, Hughes traversed the garnishment and requested that the collection of funds be stayed pending the outcome of the appeal to the Supreme Court. Thus, it was Hughes’ actions that deprived Great Southern of the ability to satisfy the judgment. Had Hughes wished to abate the accrual of post-judgment interest, he could have followed the provisions of OCGA § 9-11-67 or § 13-4-24 and voluntarily deposited sufficient funds into the court or tendered the full amount of the judgment to Great Southern, allowing Great Southern to satisfy the judgment at its peril pending the outcome of the appeal. See Sacha v. Coffee Butler Svc., 215 Ga. App. 280 (1) (450 SE2d 704) (1994); Heath v. L. E. Schwartz & Sons, 203 Ga. App. 91 (2) (416 SE2d 113) (1992); Gunnin v. Parker, 198 Ga. App. 864 (1) (403 SE2d 822) (1991).

We find that the judgment against Hughes was not satisfied until October 3, 1995 when the trial court ordered disbursement of the funds to Great Southern and specifically designated the amount of principal to be paid. At no point before this time was Great Southern able to satisfy the judgment it had received against Hughes. Thus, the trial court erred in limiting Great Southern’s award of post-judgment interest from May 24, 1994 to November 29, 1994. Rather, the trial court should have awarded Great Southern post-judgment interest from May 24, 1994 to October 3, 1995, when the court ordered the disbursement of funds to satisfy the judgment. While additional post-judgment interest should have been awarded at this point, this additional interest cannot itself accrue interest. Windermere, Ltd. v. Bettes, 211 Ga. App. 177 (4) (438 SE2d 406) (1993). Accordingly, we reverse the order of the trial court as to post-judgment interest and remand the case for judgment to be issued in accordance with this opinion.

Judgment reversed and case remanded with directions.

McMurray, P. J., and Johnson, J., concur.

       The underlying facts in this case are set out in detail in Hughes v. Great Southern Midway, 265 Ga. 94 (454 SE2d 130) (1995).


author: Blackburn, Judge.

text:
    A96A1438.
    STANDEX INTERNATIONAL CORPORATION v. DRIVER.
    (478 SE2d 605)
   Blackburn, Judge.

Standex International Corporation (Standex) appeals the partial grant of summary judgment in favor of plaintiff Melissa J. Driver in her personal injury suit. Driver sued Standex, asserting both negligence and strict liability claims, after she sustained an electrical shock from a freezer manufactured by Standex. Standex did not respond to Driver’s motion for summary judgment, and the trial court granted summary judgment for Driver on the issue of liability.

Even though Standex failed to respond to the motion for summary judgment, “there is no such thing as a default summary judgment. By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and the evidence that the party so moving is entitled to prevail.” (Citations and punctuation omitted.) Ackerman & Co. v. Lostocco, 216 Ga. App. 242, 244 (454 SE2d 792) (1995). As set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), summary judgment is appropriate only when the moving party can demonstrate that no genuine issue of material fact exists, and that the undisputed facts, when viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law.

The facts show that on August 3, 1992, Driver and her son entered Ariail’s Food Store. While shopping, Driver stopped at the ice cream freezer and received a severe electrical shock when she touched the freezer door handle. The shock prevented Driver from letting go of the door handle, and the proprietor of the store had to knock her away from the freezer. Driver sustained injuries as a result of this incident, and Standex admits that it manufactured the freezer at issue.

The light switch inside the freezer had been improperly installed, so that a mounting screw inside the switch pinched a wire, eventually causing a short. Also, the convenience store itself had been improperly wired, with the result that when the freezer shorted, it was not grounded and Driver was shocked. As Standex did not respond to the motion for summary judgment, the fact that the freezer was defective is undisputed.

Decided October 28, 1996

Reconsideration denied November 21, 1996.

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., for appellant.

Perkins & Perkins, Ann-Margaret Perkins, for appellee.

In support of her motion for summary judgment, Driver relied solely upon the affidavit of her expert, an electrical engineer, to establish that the defect in the freezer manufactured by Standex contributed to her injuries. Specifically, this expert opined that the manufacturing defect and the failure to ground had to occur simultaneously in order to injure Driver.

The grant of summary judgment to plaintiff in this case was error because: “[Ojpinion evidence can never be the basis for the grant of summary judgment in favor of a plaintiff even when, as here, the claim is one requiring the presentation of expert testimony by the plaintiff as a prerequisite to recovery.” (Emphasis in original.) Fussell v. Jones, 198 Ga. App. 399, 400-401 (401 SE2d 593) (1991) (affirming denial of plaintiff’s motion for summary judgment based on opinion testimony). See also Ginn v. Morgan, 225 Ga. 192, 193-194 (167 SE2d 393) (1969); Wilson v. Norfolk Southern Corp., 200 Ga. App. 523, 526 (409 SE2d 84) (1991) (reversing the grant of summary judgment in favor of a third-party plaintiff based solely on opinion evidence).

Judgment reversed and case remanded.

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

       Driver also supported her motion for summary judgment with the expert affidavits of two electricians and a commercial freezer technician, although only the engineer testified as to causation.


text:
    A96A1484.
    JOHNSON v. GONZALEZ et al.
    (478 SE2d 410)
   Johnson, Judge.

Elizabeth Johnson was injured when her car was struck by a patrol car driven by Jeffrey Gonzalez, a Chatham County police officer, who was responding to a “Code 2” dispatch to the scene of a domestic dispute. At the time of the accident, Gonzalez was traveling in the same direction as Johnson. He was attempting to pass her on the left, as Johnson began making a left turn. There is conflicting evidence regarding whether her turn signal had been activated. She brought suit against Chatham County and Gonzalez, alleging that he was operating his vehicle with a reckless disregard for the safety of others at the time of the accident. The trial court granted Chatham County and Gonzalez’ motions for summary judgment and Johnson appeals.

Johnson asserts that a genuine issue of material fact exists concerning whether Gonzalez was driving recklessly, that is, without due regard for the safety of others, so as to expose him, and Chatham County, based on the doctrine of respondeat superior, to liability.

Public officials are immune from liability for negligence while performing discretionary, rather than ministerial, acts in their official capacity. Logue v. Wright, 260 Ga. 206, 207 (1) (392 SE2d 235) (1990). This immunity does not extend to malicious acts, acts of corruption, wilful acts, or acts involving reckless disregard for the safety of others. Id. There is, then, a two part inquiry with regard to Gonzar lez’ acts. Were his acts discretionary rather than ministerial, and if so, did his actions evince a reckless disregard for the safety of others?

“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Hemak v. Houston County School Dist., 220 Ga. App. 110, 112 (469 SE2d 679) (1996). We have previously held that a police officer’s acts, while on routine patrol, are ministerial in nature. McLemore v. City Council of Augusta, 212 Ga. App. 862, 865 (4) (443 SE2d 505) (1994). However, the Supreme Court has held that when an officer responds to an emergency call, the officer’s acts are discretionary. Logue, supra at 207-208 (1). Officer Gonzalez was on routine patrol on the evening of January 18, 1994 when he received a “Code 2 — Urgent — Proceed as soon as possible” call. Because the call removed Gonzalez from his routine patrol, his acts in response to the call were discretionary. Johnson’s argument that this was a “Code 2 — Urgent” call, rather than a “Code 3 — Emergency” call does not affect the change in the character of his actions from ministerial to discretionary. Because the first element of our inquiry has been answered in the affirmative, we move to the question whether Gonzalez was driving with a reckless disregard for the safety of others.

The facts of this case are troubling because it is at least the third case to reach the appellate courts in recent years in which a police officer, in responding to a call, has attempted to pass a car on the left, as it attempted to turn left, causing an accident. See Tillman v. Mastin, 216 Ga. App. 3 (453 SE2d 85) (1994); and Banks v. Patton, 202 Ga. App. 168 (413 SE2d 744) (1991). In each of those cases, the police officer was found to be entitled to immunity as a matter of law because the rule grants immunity to public employees who perform discretionary acts in a negligent manner. This Court held in Banks, supra, that the “[failure to use both the light and siren in this case was an act of negligence, not an act of malice, corruption, wilfulness, or reckless disregard for the safety of others.” (Punctuation omitted.) Id. at 170 (2). However, the result in Banks was limited to the facts of that particular case. Banks does not hold that an officer can never be liable for his conduct in responding to a call without his lights and siren, regardless of the circumstances. Otherwise, the language in Logue, supra, that “immunity is for negligent acts, not for . . . acts involving reckless disregard for the safety of others” is rendered meaningless. Id. at 206 (1). Further, we note that in Banks, supra, “the undisputed admissible evidence of record shows that appellee was responding to an emergency call when the collision occurred.” Id. at 169 (2). In Tillman, supra, the officer was responding to a crime in progress. Id. at 3. At some point, as here, the acts of an officer preclude an assessment of the nature of his conduct by a court as a matter of law. A jury must decide whether Gonzalez’ decision to overtake Johnson’s vehicle, without activating his emergency lights or siren, was merely negligent or whether it constituted a reckless disregard for the safety of others.

Decided November 12, 1996

Reconsideration denied November 21, 1996

Calhoun & Associates, Gregory V. Sapp, for appellant.

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Emily E. Garrard, for appellees.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A96A1235.
    BROOKS v. BARRY et al.
    (478 SE2d 616)
   Ruffin, Judge.

James Brooks, an inmate at Bostick Correctional Institution (“BCI”), sued Bob Barry, the assistant warden of care and treatment at BCI, and Dr. Joseph Fowlkes, the medical director of BCI. Brooks alleged that Barry forced him to attend a substance abuse class at BCI even though he does not have a history of substance abuse and that Dr. Fowlkes altered his prescribed medication without discussing the matter with him. The trial court dismissed the action because Brooks failed to file the mandatory ante litem notice under the Georgia Tort Claims Act (OCGA § 50-21-26). Brooks appeals, and we affirm.

1. In his first enumeration of error, Brooks claims the trial court erred in dismissing his complaint under OCGA §§ 50-21-25 and 50-21-26 since Barry was sued individually. OCGA § 50-21-25 (a) provides: “[The Georgia Tort Claims Act] constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” OCGA § 50-21-26 provides that notice must be given prior to the filing of any action under the Georgia Tort Claims Act.

While Brooks contends his action does not assert a claim under the Georgia Tort Claims Act, “ ‘[m]erely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which he might otherwise be entitled for his official acts (under the Georgia Tort Claims Act). [Cit.]’ [Cit.]” Coultas v. Dunbar, 220 Ga. App. 54, 58 (467 SE2d 373) (1996). There being no competent evidence in the record that Barry acted in any capacity other than his official capacity, the trial court correctly granted his motion to dismiss for failure to file the requisite ante litem notice. Howard v. Miller, 222 Ga. App. 868, 870 (1) (476 SE2d 636) (1996).

2. In his second enumeration of error, Brooks contends the trial court erred in dismissing his claim against Dr. Fowlkes since he was an independent contractor. Even if Dr. Fowlkes is considered an independent contractor and not a state employee under the Georgia Tort Claims Act, which we need not decide in this case, it is clear that Brooks’ allegations against Dr. Fowlkes sound in malpractice. Under OCGA § 9-11-9.1 (a), a plaintiff is required to attach an affidavit setting forth at least one negligent act or omission and the factual basis for each such claim in any civil action alleging a negligent act or omission on the part of a physician. No such affidavit was filed in the present case. Hence, dismissal of the action against Dr. Fowlkes was appropriate. OCGA § 9-11-9.1 (e). “A correct decision of a trial court will not be reversed, regardless of the reasons given therefor.” (Citations and punctuation omitted.) Watts v. Wayne County Bd. of Ed., 201 Ga. App. 777, 779 (412 SE2d 541) (1991).

3. In his third enumeration of error, Brooks asserts the trial court denied his due process rights and right to a trial by jury in dismissing his action. Since we have already determined that the trial court correctly dismissed Brooks’ action, this claim lacks merit.

4. In his last enumeration of error, Brooks contends the Georgia Tort Claims Act violates the United States Constitution. “Although the Supreme Court has jurisdiction when the constitutionality of a state law has been properly raised, we are not divested of jurisdiction in this case. Because the constitutional challenge was not raised in the trial court, this enumeration of error presents nothing for appellate review. [Cits.]” Maynard v. State of Ga., 217 Ga. App. 344, 345 (1) (457 SE2d 253) (1995).

Decided November 5, 1996

Reconsideration dismissed November 22, 1996

James Brooks, pro se.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, Law Offices of William Tinkler, Jr., William P. Tinkler, Jr., Stephen D. Morrison, Jr., for appellees.

5. Appellees’ request for a frivolous appeal penalty is. hereby denied.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Beasley, Chief Judge.

text:
    A95A2674.
    MORGAN v. THE STATE.
    (478 SE2d 781)
    Decided November 22, 1996.

      Robert W. Chestney, for appellant.

      Ralph T. Bowden, Jr., Solicitor, Lawrence Delan, W. Cliff Howard, Assistant Solicitors, for appellee.
   Beasley, Chief Judge.

In Morgan v. State, 219 Ga. App. 760 (466 SE2d 658) (1996), we affirmed appellant’s judgment of conviction of DUI and several traffic offenses. The Supreme Court granted certiorari and reversed our decision in Morgan v. State, 267 Ga. 203 (476 SE2d 747) (1996). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.


author: . POPE, Presiding Judge. Andrews, Judge,

text:
    A96A1004.
    JOHNSON v. TRUST COMPANY BANK.
    (478 SE2d 629)
   . POPE, Presiding Judge.

On July 18, 1993, plaintiff James Johnson was shot at an ATM owned by defendant Trust Company Bank. Four months later, he filed for Chapter 7 bankruptcy, but in doing so failed to list any claim he might have against defendant as a potential asset of his bankruptcy estate. Subsequently, the bankruptcy court discharged plaintiffs debts and closed his case. Thereafter, plaintiff filed the present tort action against defendant. Defendant moved for summary judgment on the ground that plaintiffs action was barred by the doctrine of judicial estoppel because plaintiff had failed to schedule his potential tort claim against defendant with the bankruptcy court. The trial court agreed and granted defendant’s motion. Concluding that the trial court erred, we reverse.

“[T]he essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary.” (Citation and punctuation omitted.) Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994). “The doctrine ... is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings [and] is designed to prevent parties from making a mockery of justice [through] inconsistent pleadings.” (Citations and punctuation omitted.) Original Appalachian Artworks v. S. Diamond Assoc., 44 F3d 925, 929-930 (11th Cir. 1995); see McKinnon v. Blue Cross &c. of Alabama, 935 F2d 1187, 1192 [8] (11th Cir. 1991).

In the instant case, although it is undisputed that plaintiff made the initial mistake of failing to schedule any tort claim he might have against defendant as a potential asset, there is unrefuted evidence in the record that plaintiff had given information concerning any such claim to his attorney and the bankruptcy trustee. Plaintiff also specifically referred to the potential claim in the Statement of Financial Affairs he filed with the bankruptcy court. And, unlike the plaintiffs in those cases cited by the dissent in support of its determination that the doctrine of judicial estoppel is applicable, when plaintiff in the instant case became aware that his potential claim against Trust Company had not been scheduled, he sought and was granted permission from the bankruptcy court to reopen his bankruptcy case and amend his schedules to include the claim. Under such circumstances, it cannot be said as a matter of law that plaintiff intentionally attempted to manipulate and deceive the court system, or that he was attempting to make a mockery of the system through inconsistent pleading.

Furthermore, because plaintiff successfully has amended his bankruptcy petition to include any claim against defendant as a potential asset, he clearly has gained no unfair advantage in bankruptcy court. Any recovery he obtains from defendant will inure to the benefit of plaintiff’s bankruptcy estate, and in turn, to the creditors who asserted claims to the estate’s assets. Due to the bankruptcy court’s decision to reopen the Chapter 7 case and its acceptance of the amendment to the schedules plaintiff filed with that court, it also cannot be said that plaintiff’s present position in the trial court is “inconsistent with one successfully and unequivocally asserted by [him] in a prior proceeding.” (Citation, indentation and emphasis omitted.) Pittman v. Massachusetts Mut. Life Ins. Co., 904 FSupp. 1384, 1386-1387 [3, 4] (S.D. Ga. 1995). By necessity, plaintiff’s amended bankruptcy petition and the fact that his bankruptcy case was reopened so as to allow creditors to pursue any claims they might have, negates any conclusion to the contrary. Accordingly, the trial court erred in applying the doctrine of judicial estoppel to bar plaintiff’s tort action against defendant.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Blackburn and Ruffin, JJ., concur. Andrews, Johnson and Smith, JJ., dissent. Birdsong, P. J., disqualified.

Andrews, Judge,

dissenting.

I respectfully dissent, as the record reveals Johnson did successfully manipulate the court system and obtain a complete discharge of his debts without scheduling this personal injury claim, a potentially valuable asset. Not until after Trust Company moved for summary judgment based on judicial estoppel did Johnson file a motion with the bankruptcy court to reopen his bankruptcy case. Armed with affidavits showing he told his attorneys about this personal injury claim but the attorneys failed to schedule it, Johnson persuaded the bankruptcy court to grant his motion and allow him to amend his schedules to list this claim as an asset. But prior to his original discharge, Johnson and his attorneys told the bankruptcy trustee nothing about his planned personal injury claim, even though he stated he had been shot at the ATM and had suffered damage to his car in the process. This significant omission made under oath, combined with the fact that Johnson made no effort to correct the omission until it threatened the viability of his personal injury claim, gave the trial court more than sufficient reason to apply judicial estoppel.

“The doctrine of judicial estoppel ‘is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings.’ [Cit.]” (Emphasis supplied.) Chrysler Credit Corp. v. Rebhan, 842 F2d 1257, 1261 (11th Cir. 1988). Johnson’s misrepresentation to the bankruptcy court allowed him to be discharged from his debts and begin anew with an unencumbered asset: the claim against Trust Company. See Payless Wholesale Distrib. v. Alberto Culver (P.R.), Inc., 989 F2d 570, 571 (1st Cir. 1993). Having been “caught” in his failure to include this asset in his bankruptcy estate, Johnson informed the bankruptcy court of it nine months after that court closed his case. His shifting of positions constitutes exactly the kind of “playing fast and loose with the courts” which the judicial estoppel doctrine is designed to prevent. (Citations and punctuation omitted.) Allen v. Zurich Ins. Co., 667 F2d 1162, 1166 (4th Cir. 1982). “ ‘Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.’ Davis v. Wakelee, 156 U. S. 680, 689 [(15 SC 555, 39 LE 578)] (1895).” (Emphasis supplied.) In the Matter of Thomas V. Cassidy, 892 F2d 637, 641 (7th Cir. 1990). The judicial estoppel doctrine applies with full force here because Johnson “acted inconsistently in such a degree and manner to offend the judicial process and properly preclude him from now raising” this claim against Trust Company. Guinness PLC v. Ward, 955 F2d 875, 898 (4th Cir. 1992); accord Rebhan, supra. I would, therefore, uphold the trial court’s judgment as an appropriate disciplinary remedy for Johnson’s actions, notwithstanding his last-minute effort to “come clean” and make amends to the bankruptcy court.

Decided November 22, 1996

Maurice J. Bernard III, Curtis A. Thurston, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, Scott D. Huray, for appellee.

I am authorized to state that Judge Johnson and Judge Smith join in this dissent.


author: POPE, Presiding Judge.

text:
    A96A1399.
    GAMBLE v. THE STATE.
    (478 SE2d 455)
   POPE, Presiding Judge.

Defendant Melvin Eugene Gamble was convicted by a jury of trafficking in cocaine. On appeal, defendant contends that the evidence was insufficient to support his conviction and that he was entitled to a directed verdict. He also contends the trial court erred in failing to grant defendant’s motion to suppress evidence. Finding no merit to any of these contentions, we affirm.

Construed to support the verdict, the evidence shows that defendant drove himself and three co-defendants (Ferguson, Wright and Jackson) from Miami, Florida to Waycross, Georgia in a Ford Mustang. In Waycross, defendant took a rented Pontiac Gran Prix under false pretenses from Tonga Brown, whom he had met several weeks earlier. Instead of going to a local store, as he had told Brown, defendant drove the Gran Prix back to Miami, accompanied by a fourth co-defendant (Kay). It is undisputed that defendant financed the return trip to Miami, and there is no evidence that any drugs were in the car when it was taken from Brown. The remaining three co-defendants also returned to Miami in the Mustang several hours after defendant.

After spending a few days in Miami with his co-defendants, defendant brought the Gran Prix to co-defendant Jackson and asked him to drive the car back to Waycross. Jackson agreed, and, accompanied by Kay, left for Waycross in the Gran Prix following defendant, who was driving the Mustang and carrying the remaining co-defendants. During this return trip, defendant paid for the Gran Prix’s gas, and it is undisputed that at all times defendant exercised control over the Gran Prix.

On their way to Waycross, defendant and Jackson ran into a police roadblock. Defendant was unable to immediately produce proof of insurance and was asked to pull to the side of the road. Defendant and his companions in the Mustang appeared nervous when they saw that the Gran Prix also had'been stopped, and, upon brief questioning, they gave differing accounts concerning their destination. Based on this, the police asked if they could search the Mustang. It is undisputed that defendant and his passengers voluntarily consented to the search, during which nothing was found. They also consented to having their pictures taken before continuing on their way to Way-cross.

Jackson was also asked to pull the Gran Prix, which police realized was a rental car, to the side of the road. At first, Jackson was unable to produce the rental agreement for the car. Although he eventually located the agreement, it did not list him or Kay as authorized drivers. The agreement also specifically directed police to treat the car as stolen and to impound it if it was determined that the car was being driven by an unauthorized driver. Based on this, police asked Jackson and Kay to step out of the Gran Prix. Subsequently, police drug dogs on the scene scented around the car. One of the dogs alerted at the driver’s side door. Police opened the door and the dog located a box containing 85.8 grams of 90 percent pure cocaine on the floor behind the driver’s seat. Police also located a document in the car that contained defendant’s name. They then arrested Jackson and Kay. Several days later, police in Miami arrested defendant.

1. Defendant contends that the above evidence was insufficient to warrant his conviction for trafficking in cocaine because it does not demonstrate that he was in possession of the cocaine. We disagree. OCGA § 16-13-31 (a) (1) specifically authorizes conviction for trafficking in cocaine upon a showing of either actual or constructive possession. Williams v. State, 199 Ga. App. 566, 570 (4) (405 SE2d 716) (1991). In this case, even though defendant did not have actual physical control over the Gran Prix at the time it was stopped, a rational jury could have concluded beyond a reasonable doubt that defendant at least was in constructive possession of the contraband found in the Gran Prix based on the circumstances surrounding defendant’s acquisition of that car; defendant’s nervousness upon seeing that the Gran Prix had been stopped; the fact that defendant occupied the car immediately before turning it over to Jackson; and the evidence demonstrating that defendant exercised dominion and control over the Gran Prix during the trip to and from Miami.

Contrary to defendant’s assertion, the fact that Jackson and Kay also had access to the Gran Prix on the date in question does not dictate a different conclusion. The record shows that defendant and all of his co-defendants each were charged with joint constructive possession of the cocaine. “[T]he equal access doctrine does not apply to those charged with being in joint constructive possession of contraband.” Fain v. State, 211 Ga. App. 399, 401 (1) (439 SE2d 64) (1993).

Although defendant claimed he had no knowledge of the existence of the cocaine, under the facts of this case, the jury could have rejected defendant’s claim and concluded that he was guilty of the crime for which he was convicted under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Consequently, there is no merit to defendant’s contention that he was entitled to a directed verdict of acquittal. Hunt v. State, 222 Ga. App. 66, 68 (1) (473 SE2d 157) (1996).

2. There also is no merit in defendant’s contention that the trial court erred in failing to suppress all the evidence obtained at the roadblock because the roadblock was illegal. Clearly the roadblock was not illegal. See State v. Golden, 171 Ga. App. 27, 29-30 (2) (318 SE2d 693) (1984); Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989). It was authorized by supervisory personnel, including the local sheriff, and was set up for the primary purpose of checking licenses, insurance and registration. The roadblock was also manned by qualified personnel and was identified as a police checkpoint by signs and the presence of marked police cars and uniformed officers. Passing motorists were detained only briefly unless, like defendant and Jackson, they were unable to produce the requisite information. And while it is true that officers allowed some cars to pass through the roadblock, the record shows that they only did so when conditions on the road backed up and created a potential safety hazard. The officers’ conduct was justified and did not convert the roadblock into a mere random stop. O’Kelley v. State, 210 Ga. App. 686 (1) (436 SE2d 760) (1993).

3. Finally, we reject defendant’s contention that the trial court erred in failing to suppress statements obtained from defendant and the occupants of the Mustang regarding their intended destination and the picture police took of defendant. Defendant bases this contention on the assertion that such evidence was obtained during an illegal detention even if the roadblock itself was not illegal. Defendant and his cohorts in the Mustang, however, were never illegally detained. They initially were asked to pull over for a legitimate reason — the fact that defendant could not find his proof of insurance. Once pulled over, police were authorized to make a brief inquiry regarding defendant and his passengers’ destination, especially in light of the fact that all the occupants of the Mustang appeared nervous. Having effected a valid stop, the police were also authorized to request consent to both search the Mustang and take defendant’s picture, see Kan v. State, 199 Ga. App. 170, 171 (1), (2) (404 SE2d 281) (1991), and it is undisputed that they were voluntarily given such consent. Although the voluntary search and picture taking may have prolonged the detention, it did not make it illegal.

Decided November 22, 1996.

James K. Brooks, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

Additionally, we note that no harmful error could have resulted from the search of the Mustang or the taking of defendant’s picture under the facts of this case. The search of the Mustang turned up no evidence against defendant, and introduction of the picture taken by police of defendant merely demonstrated defendant’s presence at the roadblock on the date in question which was testified to by numerous witnesses at trial, including defendant.

Judgment affirmed.

Andrews and Smith, JJ, concur.


text:
    A96A1587.
    H & H SUBS, INC. et al. v. LIM et al.
    (478 SE2d 632)
   Ruffin, Judge.

This is the second time that this fraud action has been before this Court after a full trial. Once again we are compelled to reversal.

In January or February 1990, Seung Ho and Helen Lim learned that H & H Subs, Inc. (“H & H Subs”) was selling a Subway restaurant franchise in Fayetteville, Georgia. The Lims contacted Michael Hylton, Vice President and General Manager of H & H Subs, about purchasing the Fayetteville Subway. The parties discussed terms and arrived at a purchase price of $57,000, with $20,000 cash to be tendered as a downpayment. Hylton then presented the Lims with a draft purchase and sales contract, which they read and approved. On March 1, 1990, the Lims met Hylton at the Fayetteville Subway, reviewed the final purchase contract, signed it, and tendered the $20,000 downpayment.

The Lims subsequently received documentation from Subway headquarters in Connecticut indicating that the equipment in the Fayetteville store was leased, rather than included in the $57,000 purchase price. The final contract signed by the Lims specifically provided as follows: “Buyer agrees to assume the equipment lease.” The Lims, however, deny that they ever agreed to this lease assumption provision, which appears in type different from the remainder of the contract. Implying that the contract was altered after execution, the Lims claim that the lease assumption provision was not in the agreement they reviewed and signed on March 1, 1990. Hylton and H & H Subs dispute this claim. According to Hylton, the Lims were aware of the lease before they signed the contract. Hylton further contends that he added the equipment lease provision to the contract after the draft was submitted to the Lims, but before its final execution on March 1, 1990.

On April 4, 1990, the Lims’ attorney wrote Hylton and H & H Subs asserting that the Lims had not agreed to assume the equipment lease. The letter further indicated the Lims’ desire to purchase the store and its equipment for $57,000 or, in the alternative, to rescind the contract and recover their $20,000 downpayment. In the absence of what they thought was an appropriate response, the Lims removed their inventory and vacated the Fayetteville Subway. H & H Subs then resumed business at the location.

The Lims brought suit against Michael Hylton and H & H Subs, primarily seeking refund of their $20,000 downpayment. The jury returned a verdict against both defendants for $20,000 in actual damages, plus prejudgment interest and attorney fees. Following a second phase of trial pursuant to OCGA § 51-12-5.1 (d) (2), the jury also imposed punitive damages against Hylton and H & H Subs in the amount of $20,000 each. On the defendants’ motion, the trial court struck the jury’s award of attorney fees and then entered the remainder of the verdict as a judgment. Hylton and H & H Subs now appeal.

1. Hylton and H & H Subs first argue that the trial court erred by denying them a directed verdict or judgment notwithstanding the verdict on the punitive damages claim. A trial court’s refusal to direct a verdict or grant j.n.o.v. is reviewed under the “any evidence” standard. Viewing the evidence in the light most favorable to the jury’s verdict, this court will not disturb the verdict as long as there is any evidence to support it. Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996); Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 686 (1) (382 SE2d 721) (1989).

“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). Punitive damages are authorized under this statute when fraud is established. Rogers v. deMonteguin, 193 Ga. App. 480, 483 (2) (388 SE2d 10) (1989).

Applying the “any evidence” standard, we conclude that the trial court’s decision to submit the punitive damages issue to the jury and to approve the resulting verdict was not error. The Lims both testified that the lease assumption provision was not in the purchase agreement they read and signed on March 1, 1990. Seung Ho Lim further testified that Hylton represented at the March 1, 1990 meeting that the contract presented was the same as that previously submitted to the Lims for review and comment. Even Hylton admitted that he added the lease assumption provision, which is in different type, after the original contract proposal was drafted.

Reviewing the record in the light most favorable to the verdict, evidence existed to support the Lims’ claim that Hylton added the “assumption of lease” provision after the contract was executed. We conclude, therefore, that the jury was authorized to find clear and convincing evidence of fraud in this case. The trial court did not err in denying defendants’ request for directed verdict or j.n.o.v. on punitive damages.

2. Hylton and H & H Subs also argue that the trial court erred by not charging the jury on the definition of the “clear and convincing” evidence standard governing punitive damage awards. We agree.

Following the initial jury charges, counsel for H & H Subs objected because he did not believe the trial court had defined the “clear and convincing” standard. Although the trial court indicated that a defining instruction had been given, the transcript reveals no such charge. The trial judge properly instructed that evidence supporting punitive damages must be “clear and convincing.” The charges, however, provided no further guidance on the “clear and convincing” standard.

In Clarke v. Cotton, 263 Ga. 861, 862 (440 SE2d 165) (1994), the Supreme Court determined that in cases involving two separate evidentiary standards, such as “clear and convincing” and “preponderance,” the trial court must “define both standards to avoid misleading or confusing the jury.” Even absent an appropriate request to charge, the trial court must do more than simply instruct that different proof standards apply. Clarke, 263 Ga. at 862.

Neither Hylton nor H & H Subs submitted a proposed charge defining “clear and convincing” evidence. The need for a definition, however, was raised by counsel for H & H Subs. Pursuant to Clarke, the trial court is obligated to define both standards “even in the absence of a request to charge.” Id.

Accordingly, the trial court erred in not providing the jury any guidance on the meaning of “clear and convincing” evidence. This error was not harmless. Although sufficient evidence was presented to submit the punitive damages question to the jury, that evidence was not overwhelming. Thus, the jury’s verdict must be reversed. See General Motors Corp. v. Moseley, 213 Ga. App. 875, 887 (8) (d) (447 SE2d 302) (1994) (physical precedent only).

3. H & H Subs and Hylton further object to the award of prejudgment interest in this case. We agree that the jury’s prejudgment interest award was improper.

The trial court instructed the jury that “in all cases where an amount ascertained would be the damages at the time of the breach it may be increased by the addition of legal interest from the time until the recovery.” The language of this charge clearly was derived from OCGA § 13-6-13, which similarly provides that “[i]n all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time until the recovery.” Section 13-6-13 applies to contract actions. Braner v. Southern Trust Ins. Co., 255 Ga. 117, 119 (1) (335 SE2d 547) (1985); Stratton Indus., supra at 687 (indicating that only a verdict based on contract theory will authorize a prejudgment interest award under OCGA § 13-6-13).

This lawsuit, however, sounds in tort. In Georgia, “[a] purchaser claiming he was fraudulently induced to enter a sales contract has an election of remedies: (1) promptly after discovering the fraud he may rescind the contract and sue in tort for recovery of the purchase price and for any additional damages resulting from the alleged fraud; or (2) he may affirm the contract and sue for damages resulting from the fraud.” (Emphasis supplied.) Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 523 (1) (448 SE2d 271) (1994); see also Rivers v. BMW of North America, 214 Ga. App. 880, 881 (1) (449 SE2d 337) (1994).

The record reveals that the Lims sought to rescind or cancel their contract with H & H Subs. Their attorney’s April 4, 1990 letter indicated that they would either purchase the store and equipment for $57,000 or rescind the transaction and seek a refund of their $20,000 downpayment. Thereafter, the Lims turned the store back over to H & H Subs and brought suit demanding, in particular, refund of the downpayment. Under Hightower, this must be construed as a tort action. Furthermore, the Lims sought and were awarded punitive damages, which are not recoverable on a contract claim. Trust Co. Bank v. C & S Trust Co., 260 Ga. 124, 126 (1) (b) (390 SE2d 589) (1990).

The jury’s award of prejudgment interest pursuant to OCGA § 13-6-13 was not authorized in this tort action. Accordingly, the trial court erred in granting interest to the Lims under this statute.

4. Finally, H & H Subs argues that the trial court erred in admitting evidence relating to attorney fees and litigation expenses during the punitive damages phase of trial.

The only evidence presented during the second phase of this bifurcated trial related to attorney fees and litigation expenses. We agree that this evidence was not germane to this portion of the trial, which should involve evidence “relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant. . . .” OCGA § 51-12-5.1 (d) (2).

As an initial matter, the Lims argue that H & H Subs waived this enumeration or somehow acquiesced in the trial court’s decision to admit attorney fees evidence in the punitive damages phase. We disagree. H & H Subs objected each time the Lims attempted to offer such evidence at trial, apparently taking the position that an award of attorney fees should be made by the trial court upon motion. H & H Subs did not acquiesce in the trial court’s decision to admit this evidence.

We also reject the Lims’ argument that evidence of litigation expenses and fees falls appropriately within the punitive damages phase. Punitive damages are intended to punish, penalize, or deter a defendant. They are not meant to compensate the plaintiff. OCGA § 51-12-5.1 (c).

This Court recently noted the compensatory nature of a litigation expenses and fee award: “Though awards of litigation expenses and attorney fees may often have a somewhat punitive effect on the party against whom they are awarded, to punish or penalize is not their purpose. Rather, in those limited circumstances under which such awards are authorized by law, the purpose is to compensate an injured party, in order that such parties are not further injured by the cost incurred as a result of the necessity of seeking legal redress for their legitimate grievances.” City of Warner Robins v. Holt, 220 Ga. App. 794, 795 (1) (b) (470 SE2d 238) (1996). In short, litigation expenses and attorney fees are not punitive damages. F. N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 260 (4) (208 SE2d 13) (1974).

Decided November 22, 1996.

McArthur & McArthur, John J. McArthur, for appellants.

James W. Bradley, for appellees.

Citing Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425 (274 SE2d 786) (1980), the Lims argue that litigation expenses are awarded to punish defendants. Unlike Holt, however, the Ballenger case did not address whether an award of litigation fees and expenses is punitive or compensatory in nature. See Ballenger Corp., supra at 432-433. Consequently, Ballenger is not controlling.

The trial court admitted the attorney fees and litigation expenses evidence to help the jury determine the amount of punitive damages appropriate for this case. This evidence, however, necessarily involved compensation, an improper consideration for the punitive damages phase of a trial. It should have been excluded from the second phase of the bifurcated proceeding.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.

       See H & H Subs v. Lim, 213 Ga. App. 371 (444 SE2d 404) (1994).

       The Lims do not argue, and the record does not indicate, that the jury’s interest award was based on any provision other than OCGA § 13-6-13.


text:
    A96A1894.
    HARRIS v. THE STATE.
    (478 SE2d 458)
   POPE, Presiding Judge.

Defendant was indicted by a grand jury for the offenses of cruelty to children (Counts 1 and 2), aggravated battery (Count 3) and aggravated assault with a deadly weapon (Count 4). She was tried before a jury and found guilty of the first three counts and the lesser-included offense of battery on the fourth count. She appeals her convictions on Counts 2 and 3 on the grounds that the evidence was insufficient to support the verdict.

“Where a criminal conviction is challenged on the basis that the evidence is insufficient, the appellate court views the evidence in the light most favorable to the finding of guilt to determine whether there was sufficient evidence for a rational trier of fact to conclude that the defendant was guilty beyond a reasonable doubt. [Cits.]” Stokes v. State, 204 Ga. App. 586, 587 (2) (420 SE2d 84) (1992).

“Although a conviction based on circumstantial evidence is authorized only if the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused (OCGA § 24-4-6), if the evidence meets this test, circumstantial evidence is as probative as direct evidence. Whether this burden has been met is a question for the jury. When the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law.” (Citations, punctuation and indention omitted.) Mason v. State, 199 Ga. App. 691, 692 (1) (405 SE2d 747) (1991).

The evidence at trial, viewed in the light most favorable to the jury verdict, shows that mid-afternoon on October 28,1994, an officer of the Commerce Police Department received a 911 telephone call from defendant seeking help for her 24-month-old son, who had been severely burned by hot grease. Testimony indicated defendant told the 911 operator that the child had been injured by a pan of hot grease when defendant bumped into the child. However, when police arrived at the scene defendant told an officer that she did not really know what happened to the child, “that it must have pulled a pan of grease on its head.” This explanation was repeated to a second police officer also at the scene and to a nurse at the hospital where the child was first taken for treatment. Evidence presented at trial showed that the child was not tall enough to reach the top of the stove.

A few weeks after the incident, defendant gave a statement to an investigator offering another explanation of the incident. Defendant stated she had been cooking french fries on the stove when she left the kitchen to answer the telephone; that while talking on the phone she smelled smoke or fire; that when she returned to the kitchen she found the frying pan on fire; that she grabbed the pan off the stove with a wet dish rag; that when the pan started burning her hands she tilted it and let it go; and that she then bumped into her son, who was either behind or beside her, spilling the grease on him. However, the officers who arrived at the scene testified there were no french fries at the scene either done or uncooked, there was no smell or observance of smoke or fire in the kitchen, there was no sign of a dish rag or potholder in the area, and the defendant did not have any burn marks or blisters on her hands, feet or legs which would have been consistent with her burning her hand or dropping the skillet. The officers did observe a cast iron skillet and grease on the kitchen floor. The grease was in a puddle with very few splatter marks. Defendant later added more details to this version of the incident, none of which could be verified by the officers who responded to the emergency call.

Medical testimony indicated that defendant’s son received second and third degree burns over fourteen percent of his body, primarily to his face, neck, arms, upper chest and back. No burns were noticed on the top of his head or his legs or feet. The location of the burns indicated that the grease had come straight at the child from the front, or perhaps from a slight angle above him, but with a definite forward propulsion. Thus, the burn marks were inconsistent with the theory that the grease had been spilt or dripped on the child from above.

While being treated by a paramedic at the scene and at the hospital, it was noted that defendant’s son had more than 20 whip marks on his inner thighs, buttocks and near his perineum. Medical testimony indicated that the whippings had been administered- at two different times. Defendant first claimed that her son had received the marks about a week earlier from sitting on the potty, but later admitted she had beat him because he had soiled his diapers. She also admitted that she got mad about her son constantly “messing in his diaper” and that she usually just “pop[s] him with her hand.” These beatings formed the basis for defendant’s convictions on Counts 1 and 4 of the indictment.

Although defendant’s son stayed in the hospital for a little over one month and underwent four different skin graft operations, defendant’s son’s physician did not recall ever having spoken to defendant.

OCGA § 16-5-70 (b) provides: “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” “For purposes of this Code section, ‘malice’ in the legal sense, imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. [Defendant’s] intent was a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. The jury’s inherent finding of intent will not be set aside unless it is clearly erroneous. . . .” (Citations and punctuation omitted.) Rigenstrup v. State, 197 Ga. App. 176, 180 (4) (398 SE2d 25) (1990). See also Jarrard v. State, 152 Ga. App. 553 (7) (263 SE2d 444) (1979) with regard to defendant’s aggravated battery conviction.

“Although the circumstantial evidence must exclude every other reasonable hypothesis save [defendant’s] guilt, it need not exclude every inference or hypothesis. [Cit.]” Mason v. State, 199 Ga. App. at 692. We find the trial transcript-reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that defendant’s son’s injuries were not accidental, and defendant was guilty beyond a reasonable doubt. Stokes v. State, 204 Ga. App. at 587 (2); Jarrard v. State, 152 Ga. App. at 555 (7); Jackson v. Vir ginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 22, 1996.

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Smith, JJ, concur.


author: Andrews, Judge.

text:
    A96A1305.
    ANTINORO v. BROWNER.
    (478 SE2d 392)
   Andrews, Judge.

Pursuant to the Arbitration of Fee Disputes (AFD) program of the State Bar of Georgia, Ronald Browner filed a petition for arbitration with the State Bar Committee on the Arbitration of Attorney Fee Disputes (the Committee) complaining that his former lawyer, Len Antinoro, contracted with him to perform certain legal services, accepted a $19,000 fee, but failed to fully perform the services. Browner sought a partial refund of the fee and agreed to be bound by the arbitration. Antinoro filed a response to the petition denying that any refund was due and refusing to be bound by the result of the arbitration. The Committee accepted jurisdiction over the fee dispute, but, because Antinoro refused to be bound, the arbitration hearing was conducted ex parte according to the provisions of the AFD program. The arbitration panel entered an award finding that Antinoro owed Browner a refund of $16,777 of the fee. Under the terms of the AFD program, the State Bar provided legal counsel to Browner at no cost to represent him in subsequent litigation against Antinoro seeking a judgment in the amount of the award. After a bench trial of the subsequent action filed against Antinoro in the Clayton County State Court, the trial court entered judgment in favor of Browner in the amount of the $16,777 award, and Antinoro appeals.

1. Antinoro claims the trial court erred by denying his motion for summary judgment made on the basis that the statute of limitation applicable to actions for breach of the attorney-client contract had expired when the subsequent action to collect the award was filed.

Since the record does not reflect that the parties entered into a written contract, the statute of limitation applicable to Browner’s claim that Antinoro breached an oral attorney-client employment contract is OCGA § 9-3-25 which requires that an action for breach of the contract be filed within four years from the date of the breach of duty. Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 244-246 (296 SE2d 788) (1982). The applicable breach of duty in this case occurred when Antinoro ceased his representation of Browner during a trial on March 3, 1982, at which time the four-year limitation period began to run. Id. at 244. Browner filed his petition with the Committee on February 24, 1984. Antinoro does not dispute that the petition for arbitration was timely filed with the Committee within two years following the date on which the controversy arose as required by Rule 6-201 (e) of the AFD program. After the arbitration hearing, the arbitrators rendered an award in favor of Browner on September 27, 1985. However, it was not until April 21, 1989, over seven years after the four-year limitation period commenced running, that Browner, represented by State Bar counsel under the AFD program, filed the action at issue against Antinoro seeking a judgment in the amount of the award. Thus, the issue presented is whether the four-year limitation period of OCGA § 9-3-25 barred the subsequent action.

In addressing this issue, we first consider the creation and purpose of the AFD program and its operation under the particular facts of this case. The State Bar of Georgia operates as an administrative arm of the Georgia Supreme Court to assist the Court in the exercise of its judicial function to regulate the practice of law. Wallace v. Wallace, 225 Ga. 102 (166 SE2d 718) (1969). In aid of the Supreme Court in the exercise of its judicial power, the legislature has given statutory recognition to the authority of the Supreme Court to create the State Bar and adopt rules and regulations recommended by the State Bar to regulate the practice of law. OCGA § 15-19-30 et seq.; Wallace, supra at 109. In this capacity, the State Bar recommended, and the Supreme Court approved, the creation of the AFD program to provide an alternative method to traditional litigation to resolve disputes between lawyers and clients over fees. AFD program, supra, Preamble; see Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770, 771 (462 SE2d 130) (1995). Although the AFD program requires that petitioners, whether lawyers or clients, must agree to be bound by the result of the arbitration, it does not require that respondent lawyers agree to be bound. AFD program, supra, Preamble.

In the event the respondent lawyer agrees to be bound, the AFD program provides that the arbitrators’ award is final and binding upon both lawyer and client and may be enforced according to the general arbitration laws of Georgia (Rule 6-417) and specific procedures set forth for obtaining a review of the award in the appropriate superior court. AFD program, supra, Rule 6-501; see Parks v. Anderson, 221 Ga. App. 270 (470 SE2d 811). (1996). In this event, the AFD program sets forth procedures analogous to those used in binding arbitration under the Georgia Arbitration Code (OCGA § 9-9-1 et seq.) by which an award can be affirmed or vacated in the superior court by special proceedings. Rules 6-417, 6-501; see Hardin Constr. Group, supra at 771. Since Antinoro refused to be bound, these enforcement procedures did not apply.

Where a respondent lawyer refuses to be bound, a unique feature of the AFD program provides that, if the Committee takes jurisdiction of the complaint and determines that a hearing is warranted, “the matter will not be dismissed, but an ex parte arbitration hearing will be held. If the outcome of this hearing is in the client’s favor, the State Bar will provide a lawyer at no cost to the client to represent the client in subsequent litigation to adjust the fee in accordance with the arbitration award. This is intended to relieve the client of the burden of paying a second lawyer to recover fees determined to have been excessively charged by the first lawyer.” AFD program, supra, Preamble. A respondent lawyer who will not agree to be bound by the arbitrators’ decision may attend the ex parte hearing but waives the right to participate except upon the express consent of the arbitrators. Rule 6-402. Where the client receives a favorable award to which he has agreed to be bound, and the respondent lawyer refuses to be bound by it, the State Bar will provide the General Counsel, Assistant General Counsel, or another volunteer lawyer to represent the client without cost (other than actual litigation expenses) “in any litigation necessary to adjust the fee in accordance with the award.” Rule 6-502. Furthermore, “[i]n such cases, the award rendered will be considered as prima facie evidence of the fairness of the award and the burden of proof shall shift to the lawyer to prove otherwise.” Rule 6-502 (a).

Thus, the AFD program recognizes that, where the respondent lawyer has refused to be bound by the arbitration and resulting award, “subsequent litigation” by the client may be “necessary to adjust the fee in accordance with the award.” Rule 6-502. We construe this to mean that, if a respondent lawyer who refused to be bound by the arbitration refuses to comply with the resulting award, the enforcement mechanisms of the AFD program applicable to binding arbitration do not apply, and the client who agreed to be bound by the award may file a civil action seeking a personal judgment against the lawyer in the amount of the award. In such subsequent litigation, the AFD program gives the client the benefit of free legal representation and a rule establishing the award as prima facie evidence of its fairness. AFD program, supra, Rule 6-502. Accordingly, Browner’s suit filed on April 21, 1989, was not a special proceeding seeking review and confirmation of an arbitration award to which the parties agreed to be bound, but a civil action seeking a personal judgment against Antinoro in the amount of the non-binding award made under' the AFD program. Compare Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (430 SE2d 732) (1993). Since the litigation filed by Browner on April 21, 1989, was a civil action, the four-year limitation period of OCGA § 9-3-25 was applicable, and we must determine whether the statute barred the action under the present facts.

. A basic purpose of the AFD program is to provide a means to encourage the resolution of fee disputes between lawyers and clients without resort to traditional litigation. In order to give effect to this purpose and encourage use of the program, we conclude that Browner’s timely filing of a petition to arbitrate under the AFD program prior to the expiration of the four-year statute of limitation applicable to the civil action sought to be arbitrated tolled the statute of limitation during the pendency of the AFD proceedings. The AFD program provides for notice to respondents of the complaint and notice of and the right to attend all arbitration hearings. Thus, tolling the applicable statute of limitation during the AFD proceedings does not frustrate the fundamental purpose of the limitation period which is to ensure that an adverse party has timely noticé of a claim so he can investigate the claim and prepare a defense while the facts are still fresh. See Butler v. Glen Oak’s Turf, 196 Ga. App. 98, 99 (395 SE2d 277) (1990); compare Mitcham v. Blalock, 214 Ga. App. 29, 31 (447 SE2d 83) (1994).

Applying this rule, we have no difficulty concluding that the statute of limitation was tolled from the date the petition was filed until the award was rendered by the arbitrators in favor of Browner on September 27, 1985. It is not clear, however, whether the statute of limitation continued to be tolled for the entire period after the award was rendered until the subsequent civil action was filed by Browner on April 21, 1989. The AFD program contemplates that, where the fee dispute is not resolved after a non-binding award is rendered in favor of the client, subsequent litigation against the lawyer may be necessary to collect the award. The AFD proceedings remain pending after the award to the extent that the program aids in the continuing collection effort by providing the client with free legal representation to file any necessary collection action and an evidentiary presumption in favor of the fairness of the award. But the program does not set forth any time limit applicable to filing subsequent litigation. In the absence of any time limit, we conclude that, after the award is rendered, the client must act with reasonable diligence in pursuing collection of the award and in filing any civil action necessary to accomplish that purpose. Accordingly, when a client files a civil action to collect an award under the AFD program after the applicable statute of limitation has expired, the client must show that he acted with reasonable diligence in filing the action in order for the statute to be tolled for the period between the award and the action.

Decided November 4, 1996

Reconsideration denied November 25, 1996

Len Antinoro, pro se.

William P. Smith III, General Counsel State Bar, Paula J. Frederick, Assistant General Counsel, for appellee.

Whether or not the client acted with reasonable diligence is an issue to be determined within the discretion of the trial court based on the facts of each case. See Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349-350 (408 SE2d 111) (1991). Since no such determination has been made by the trial court in this case, we vacate the trial court’s denial of Antinoro’s motion for summary judgment on the statute of limitation defense and remand the case to give the parties an opportunity to present additional evidence on this issue for consideration by the trial court in accordance with this opinion.

2. We find no error in the trial court’s denial of Antinoro’s motion to dismiss the action on the basis that Ronald Browner was not the real party in interest to bring the civil action to collect the award rendered in his favor under the AFD program.

3. Browner’s motion to dismiss the appeal based on the fact that no transcript of the trial testimony was included on appeal is denied.

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

Pope, P. J., concurs. Smith, J., concurs in the judgment only.

       See Rules and Regulations for the Organization and Government of the State Bar of Georgia, Part VI, Rules 6-101 et seq., Ga. Ct. & Bar Rules (1995), pp. 11-94 to 11-103; 247 Ga. A-2 to A-ll; 257 Ga. 952-973.


text:
    A96A2203.
    JOHNSON v. THE STATE.
    (478 SE2d 404)
   Andrews, Judge.

Robert Johnson was found guilty by a jury of selling cocaine. He appeals from the judgment of conviction and enumerates as error that: (1) the evidence was insufficient to support the conviction; (2) trial counsel was ineffective; (3) his character was improperly placed into issue; and (4) the trial court erroneously instructed the jury. We find no basis for reversal on these enumerations and affirm the conviction.

1. The evidence was sufficient to support the conviction. The State produced testimony from two undercover police officers showing that they drove an unmarked car to an area known for illegal drug sales and initiated a conversation with Johnson, who was standing near a street corner. One of the officers asked Johnson if he had any drugs on him to sell, and Johnson said, “No.” The officer asked Johnson if he knew where she could get some, and Johnson said, “What [do] you need?” The officer replied, “Twenty,” the street term for a $20 rock of crack cocaine. Johnson whistled at and motioned for a juvenile to come over to the car and told the juvenile to sell the officer a twenty. The juvenile produced a substance that appeared to the officer to be crack cocaine and sold it to the officer. Shortly thereafter, other police officers in the area who were monitoring the sale arrested the juvenile and Johnson. The substance tested positive for cocaine at the state crime lab.

Johnson testified and said he spoke with the undercover officer and told her he had no drugs and did not sell them. He said that he told the officer some kids in the area sold drugs and that, about that time, a kid came up to the car and sold the cocaine to the officer. He testified that he had nothing to do with the sale and did not encourage the juvenile to sell the cocaine.

Although there were some conflicts in the testimony of the police officers as to the details of the sale, and Johnson testified that he was not involved, it is the function of the jury, not the appellate court, to determine the credibility of witnesses and resolve conflicts in the evidence. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). On appeal from a criminal conviction, the defendant is no longer presumed innocent, and the evidence is viewed in the light most favorable to the verdict. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Johnson was guilty as a party to the sale of the cocaine. OCGA §§ 16-2-20; 16-2-21; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Johnson claims his trial counsel was ineffective because he failed to find the juvenile who sold the cocaine and produce him as a witness to testify that he (Johnson) was not involved in the cocaine sale.

“The Sixth Amendment right to assistance of counsel also guarantees a criminal defendant the right to effective assistance of counsel. Black v. State, 264 Ga. 550 (448 SE2d 357) (1994). In order to obtain the reversal of a conviction on a claim of ineffectiveness of counsel, a defendant has the burden of proof under both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Zant v. Moon, 264 Ga. 93, 97 (440 SE2d 657) (1994). Under Strickland, supra, the defendant must prove: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. In determining whether or not counsel’s performance was deficient under the first prong, a court must measure counsel’s performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel’s significant decisions were made in the exercise of reasonable professional judgment. Strickland, supra; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). Under the second prong, the test is whether there was a reasonable probability that the outcome of the proceedings would have been different but for counsel’s deficient performance. Id. ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.’ Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994).” Parker, supra at 306-307.

We apply these standards to the claim of ineffectiveness. At the hearing on the motion for a new trial, trial counsel testified that Johnson gave him the name and address of the juvenile and said the juvenile could testify that he was not involved in the cocaine sale. Trial counsel testified he attempted to locate the juvenile but was unable to find him. The police officers who arrested the juvenile told trial counsel they did not know where he was. On two occasions, trial counsel obtained continuances of the trial because the juvenile had not been located. The case was tried after it was set down for the third time, and the trial court refused to grant another continuance. Although trial counsel testified that he did locate the juvenile after the trial, and that the juvenile told him Johnson was not involved in the sale, the juvenile did not appear and testify at the new trial motion hearing. Even assuming the juvenile would have testified that Johnson was not involved in the cocaine sale, there is ample evidence that trial counsel made reasonable efforts to locate the juvenile prior to the trial. Accordingly, there was no clear error in the trial court’s determination that Johnson was afforded effective assistance of counsel, and we affirm the trial court’s ruling.

3. Johnson contends the State improperly placed his character into issue, and the trial court erred by denying his motion for a mistrial.

After establishing that the area in which Johnson was arrested was known for illegal drug sales, the prosecutor asked one of the arresting officers if she was familiar with the area, and the officer responded that, “We had several complaints — these are Silent Witness complaints — that in reference to Mr. Johnson — that. . . .” Before the officer could say anything else, defense counsel objected that the reference to complaints in the area against Johnson improperly placed his character into evidence and moved for a mistrial. The trial court denied the motion for a mistrial and gave curative instructions to the jury to disregard the testimony about complaints in reference to Johnson. Given that the testimony was non-responsive to the prosecutor’s question, and the trial court gave proper curative instructions to the jury, we find no abuse of discretion in the trial court’s determination that a mistrial was not necessary to preserve Johnson’s right to a fair trial. Beach v. State, 258 Ga. 700, 701 (373 SE2d 210) (1988); Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982).

Decided November 7, 1996

Reconsideration denied November 25, 1996

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger, Assistant District Attorney, for appellee.

4. Johnson complains that the trial court repeated its charge to the jury regarding criminal intent and thereby unduly emphasized this charge and rendered the entire charge unfair. This claim has no merit. The record shows the trial court indicated it may have “garbled” this charge, so it repeated it for the sake of clarity. There was nothing even remotely unfair or prejudicial in repeating the charge. Brown v. State, 182 Ga. App. 682, 683 (356 SE2d 663) (1987).

Johnson also contends the trial court’s charge had the effect of placing undue emphasis on Johnson’s credibility. There is no claim that the trial court incorrectly charged on any principle of applicable law. We find no error.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A97A0294.
    BARNES v. JUSTIS.
    (478 SE2d 402)
   McMurray, Presiding Judge.

In an order dated June 19, 1996, this Court granted defendant William Guthrie Barnes’ application for discretionary appeal from an award of attorney fees in this domestic relations matter. Held:

“Within ten days after an order is issued granting the appeal, the applicant, to secure review of the issues, shall file a notice of appeal as provided by law. The procedure thereafter shall be the same as in other appeals.” OCGA § 5-6-35 (g). The tenth day, June 29, 1996, fell on a Saturday. Accordingly, defendant had until the next business day, Monday, July 1, 1996, to perfect his appeal. OCGA § 1-3-1 (d) (3). “ A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file,’ and ‘a certificate of the clerk, entered upon the (paper) at the time it is filed, is the best evidence of filing. . . .’ Peterson v. Taylor, 15 Ga. 483, 484. And see Jordan v. Bosworth, 123 Ga. 879, 880 (51 SE 755). ‘It is essential to the filing of a paper in a clerk’s office that the same be either lodged in his hands or with his knowledge placed in his office and under his charge.’ Jolley v. Rutherford, 112 Ga. 342 (1) (37 SE 358).” Bailey v. Bonaparte, 125 Ga. App. 512, 514 (188 SE2d 119).

Decided November 6, 1996

Reconsideration denied November 25, 1996

William G. Barnes, pro se.

Rountree & Souther, George M. Rountree, for appellee.

Although defendant’s notice of appeal is dated June 26, 1996, and contains his certificate of service for that same date, the notice of appeal was not filed with the Clerk of the Superior Court of Glynn County until Tuesday, July 2, 1996. This is one day late. “The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530). “ ‘The [appellant’s] burden is not satisfied by relying on the postal delivery but may be satisfied only by depositing the notice of appeal with the clerk within the appropriate time frame. [Cit.]’ [Cit.] [Defendant in the case sub judice] failed to satisfy the burden of timely filing the notice of appeal. Accordingly, we are without jurisdiction to consider this case. It must be dismissed.” White v. White, 188 Ga. App. 556, 557 (373 SE2d 824).

Appeal dismissed.

Beasley, C. J, and Smith, J., concur.