text:
    75863.
    EBCO GENERAL AGENCY et al. v. MITCHELL.
    (368 SE2d 782)
   Beasley, Judge.

Mitchell signed an application for automobile insurance with appellants’ agent on June 10, 1986. The premium quoted and shown on the application was $674, and Mitchell paid $213. When he remitted his first monthly payment of $64.75 on July 10, he was told that the policy was coming, but he was notified by letter of July 28 that his policy had been rated “slightly higher” and requested to send an additional $51, Mitchell subsequently learned that the premium originally quoted had been erroneously computed by the agent. The correct annual premium was $883 with monthly payments of $86.07. Mitchell requested that the policy be cancelled, which was done effective August 25.

After asking for a refund of the amounts paid, Mitchell received a check for $82.86, which was the amount he had paid less the cost per diem at the originally quoted rate. Having calculated that he was due more, Mitchell discussed the matter with appellants’ home office and their local agent, and on September 10 and October 3 wrote for an additional refund of $61.54. It was not until November 7 that appellants responded to explain the basis for the amount of rebate sent.

Suit was filed alleging conversion of money and asking punitive damages and attorney fees for bad faith litigation. At trial after appellants’ motion for directed verdict was denied, a jury awarded Mitchell $61.54 plus $15,000 punitive damages and $3,000 attorney fees. This appeal was brought upon denial of appellants’ motion for judgment notwithstanding the verdict.

1. While Mitchell asserts that appellants sought to profit from their mistake “by increasing the premium shown on the application, in delaying the cancellation of the policy, in attempting to hide the truth of the premium increase and in ignoring correspondence” from him, there is no record evidence to support this. Mitchell concedes that the application form, signed but not read by him, contained an express proviso that “if the actual premiums that result from the issuance of the policy are other than indicated above, this agreement may be amended to reflect the actual premiums and I shall make an additional down payment, if required, within 10 days of being notified.” When the rating error was discovered, Mitchell was accordingly advised that an additional $51 was required for his down payment and that the correct premium rate was $883, and these figures were not contested. Nor does he dispute that after he chose to cancel the policy rather than pay the additional correct rate, he was fully insured for 76 days with the requested coverage at the rate originally quoted until the cancellation became effective. Under the insurer’s rules, procedures and rates manual, the application when signed and mailed became a binder until the policy was issued.

A binder is a contract for temporary insurance. OCGA § 33-24-33 (a). “Insurance is a matter of contract law and contract rules and interpretations will apply. [Cit.] A party to a contract who can read, must read or show a legal excuse for not doing so, and ordinarily if fraud is an excuse, it must be such fraud as would prevent the party from reading the contract. [Cit.] Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152-153 (351 SE2d 498) (1986).

“ ‘In order to present a cause of action for conversion an act of dominion over the personal property of another inconsistent with his rights or by an unauthorized appropriation must be shown.’ [Cits.]” Alpert v. Wickes Cos., 182 Ga. App. 51, 53 (1) (354 SE2d 674) (1987). “In order to maintain an action ex delicto because of a breach of duty growing out of a contractual relationship, the breach must be shown to have been a breach of duty imposed by law and not merely the breach of a duty imposed by the contract itself. [Cit.]” Bank South v. Harrell, 181 Ga. App. 64, 67 (2) (351 SE2d 263) (1986). Whether appellants remitted to Mitchell all the refund he was entitled to was solely a question of contractual interpretation. Thus the trial court erroneously denied their motion for directed verdict on the conversion claim. Braddy v. Morgan Oil Co., 183 Ga. App. 157 (3) (358 SE2d 305) (1987).

2. “It is well settled that a claim for punitive damages will not lie in cases arising on contracts. See OCGA § 13-6-10 .... Having reversed the tort recovery, we must accordingly also reverse the award of punitive damages.” Builders Transport v. Hall, 183 Ga. App. 812, 816 (3) (360 SE2d 60) (1987). Accord Assoc. Software &c. Organization v. Wysocki, 177 Ga. App. 135 (2) (338 SE2d 679) (1985); Bank South v. Harrell, supra.

Likewise, the court should have directed a verdict in appellants’ favor on the claim for attorney fees as an award of expenses of litigation under OCGA § 13-6-11. Bad faith damages are not recoverable where there exists a bona fide controversy, such as the amount of refund due here. “ ‘Since there was no (other) evidence fr'om which a jury could find that the contract was made in bad faith or that the (appellants) breached it as a result of some sinister motive, the award of [attorney fees] cannot be sustained on the basis of bad faith.’ [Cit.]” Calif. Fed. Sav. &c. Assn. v. Hudson, 185 Ga. App. 384, 389 (7) (364 SE2d 582) (1987). Accord Hightower v. Gen. Motors Corp., 175 Ga. App. 112 (2) (332 SE2d 336) (1985), aff'd 255 Ga. 349 (338 SE2d 426) (1986). “Where, as here, there is as a matter of law a reasonable defense (see Division 1), attorney fees are not recoverable. [Cits.]” Bank South v. Harrell, supra at 67.

Decided April 5, 1988

Rehearing denied April 20, 1988

Mark R. Youmans, for appellants.

Kenneth M. Henson, for appellee.

Judgment reversed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    76155.
    76156.
    HARVEY v. MOORE et al. MEMORIAL MEDICAL CENTER, INC. et al. v. MOORE et al.
    (368 SE2d 784)
   Banke, Presiding Judge.

The appellees filed a wrongful-death action to recover for the loss of their son due to alleged medical malpractice on the part of the appellants, and the appellants counterclaimed to recover damages for abusive litigation. This is the second appearance of the case before this court. In Memorial Med. Center v. Moore, 184 Ga. App. 176 (361 SE2d 49) (1987), we dismissed an appeal brought by the appellants from an order allowing the appellees to dismiss their complaint without prejudice, holding that because the appellants’ counterclaims had not yet been dismissed, the case technically remained pending in the lower court. Upon the return of the case to the lower court, the trial judge entered an order dismissing the counterclaims, based on language contained in our prior decision to the effect that the abusive litigation claims could not stand independently of the main claim, absent a final adjudication of that claim in the appellees’ favor. The appellants thereupon renewed their appeals. Held:

1. The appellants assert that the trial court erred in allowing the complaint to be dismissed without prejudice over their objection. The record reflects that the appellees filed their notice of voluntary dismissal on October 31, 1986, and that the trial court entered an ex parte order allowing the dismissal on that same date. Thereafter, the appellants filed various motions objecting to the dismissal. On March 10, 1987, the trial court denied these motions and reaffirmed its earlier order giving effect to the voluntary dismissal.

Decided April 5, 1988

Rehearing denied April 20, 1988

I. Gregory Hodges, Wendy W. Williamson, for appellant (case no. 76155).

Lee C. Mundell, Anne V. Marscher, for appellants (case no. 76156).

The appellants’ objection to the dismissal was based on the following language appearing in OCGA § 9-11-41 (a): “If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. . . .” We must agree with the appellants that this statutory language precluded the trial court from dismissing the complaint over their objection. “The purpose of the counterclaim limitation on voluntary dismissals is to prevent a plaintiff from invoking the jurisdiction of the court and then withdrawing when the defendant seeks affirmative relief from the plaintiff.” Worthen v. Jones, 240 Ga. 388, 389 (240 SE2d 842) (1977). Since, as we stated on the first appearance of this case, the appellants’ abusive litigation counterclaims are not subject to adjudication absent a termination of the original suit in their favor, it follows that the trial court erred in permitting the appellees to dismiss their complaint without prejudice.

2. Since the dismissal of the appellants’ counterclaims was based on the voluntary dismissal of the complaint, and since we have held that the voluntary dismissal should not have been allowed, it follows that the counterclaims should not have been dismissed.

3. The appellants assert that the trial court erred in failing to strike the affidavit of the appellees’ expert; and, in a similar vein, appellants Memorial Medical Center, Inc., and Crider assert that the trial court erred in denying their motions for summary judgment. While the record reflects that these motions were pending before the court, it also reflects that the court did not make a ruling on them. Accordingly, these enumerations of error present nothing for review. See Terry v. Cochran, 176 Ga. App. 51 (335 SE2d 304) (1985).

4. The remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

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

Benjamin S. Williams, Carlton R. Stewart, for appellees.


author: Benham, Judge.

text:
    75869.
    SPEARS v. ALLIED ENGINEERING ASSOCIATES, INC.
    (368 SE2d 818)
   Benham, Judge.

Spears hired Allied Engineering Associates, Inc. (“Allied”) to perform topographic field surveys and other engineering services. After the work was performed, Allied sent Spears two invoices that stated the work done, the rates charged, and the number of hours expended by the various persons who performed the work. Spears did not pay the invoices and Allied filed suit to recover the fees it claimed. After discovery Allied filed a motion for summary judgment and the trial court granted it, holding Spears liable for the amount due plus 18 percent interest accruing thereon from the date of demand. Spears appeals from that judgment.

1. In his first enumeration of error, Spears, while conceding liability, contends that the record contains competent opinion evidence that the hours expended and the amount of the charges for the services rendered were excessive, and therefore an issue of fact remained whether those charges were reasonable. We agree. The affidavit of Allied’s vice president in charge of Engineering states that the services were performed and that the invoices were reasonable and in accordance with the prevailing rates for such professional services in the area in question. Spears filed a responsive affidavit in which he avers that, based on his experience as a developer and builder, the hours expended and resulting charges were excessive and not in line with charges for similar work in the area in question. In reviewing the record, it appears that although the parties agreed on the hourly rate to be charged for the services of the various engineers and other workers, there is still a factual dispute over the number of hours it actually took or should have taken for the work to be performed. Therefore, summary judgment was inappropriate as to the amount Spears owed Allied. O’Kelley v. Evans, 224 Ga. 49 (3) (159 SE2d 418) (1968).

2. Spears also argues that the trial court erred in granting appellee pre-judgment interest at 18 percent based on OCGA § 7-4-16, the statute section that allows a maximum of 18 percent annual interest on commercial accounts, because neither the agreement between Spears and Allied nor the invoices from Allied specified that interest would be charged on past due amounts. If the rate allowed under OCGA § 7-4-16 is sought before trial, the trial court is authorized to grant prejudgment interest at that rate. Belvin v. Houston Fertilizer &c. Co., 169 Ga. App. 100 (1) (311 SE2d 526) (1983); Gregory v. Townsend Roofing Co., 163 Ga. App. 836 (2) (296 SE2d 154) (1982). However, the request must specify the interest rate sought. See Gold Kist Peanuts v. Alberson, 178 Ga. App. 253 (2) (342 SE2d 694) (1986), and Prince v. Lee Roofing Co., 161 Ga. App. 181 (3) (288 SE2d 135) (1982), relied upon by Spears. In Gold Kist, the complainant’s prayer for relief sought “interest on sums owed from June 23, 1982” without specifying the rate thereof. This court held that the commercial rate of interest could not be recovered, stating that “recovery of pre-judgment interest pursuant to OCGA § 7-4-16 requires a pre-trial invocation of the applicability of that provision. [Cits.]” Id. at 256. In Prince, supra, the supplier of goods and services made no attempt to charge interest prior to trial, and only prayed for “interest and costs” without naming the interest rate sued for. The supplier was not allowed to recover at the commercial rate. In its complaint, Allied sought “interest as allowed by Georgia law for commercial accounts” as part of its prayer for relief. By doing so, Allied invoked OCGA § 7-4-16, but it did not specify the exact rate at which interest was to accrue under that section. In other words, it was not clear whether Allied was seeking 1.5 percent interest per month, the maximum allowable rate for commercial accounts, or some lesser rate which also would have been proper under the statute. See C & H Couriers v. American Mut. Ins. Co., 170 Ga. App. 684 (2) (318 SE2d 77) (1984). In the absence of such specificity, the trial court erred in entering judgment against Spears for the maximum rate.

Decided April 20, 1988.

John G. Haubenreich, for appellant.

Keenan G. Loomis, for appellee.

Moreover, in light of our conclusion in Division 1 of this opinion that there remains a question of fact as to the amount of money Spears owes Allied, the damages are no longer liquidated; thus, an award of pre-judgment interest would not be authorized. OCGA § 7-4-15; Marathon Oil Co. v. Hollis, 167 Ga. App. 48 (3) (305 SE2d 864) (1983).

Judgment reversed.

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


text:
    75896.
    FAULKNER v. THE STATE.
    (368 SE2d 820)
   Benham, Judge.

This appeal is from appellant’s conviction of three counts of first degree forgery.

1. The evidence showed that appellant cashed three checks drawn on the account of a business owned by appellant. The checks were made to appellant and the signature was in the name of Lamar White. An agent of the bank on which the checks were drawn testified that the account was already overdrawn when the checks were written and that appellant was the person authorized to sign checks on the account. That evidence was sufficient to authorize a rational trier of fact to find appellant guilty of all three counts of first degree forgery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gaily v. State, 181 Ga. App. 906 (1) (354 SE2d 442) (1987).

2. In his second enumeration of error, appellant contends that the trial court violated OCGA § 17-8-57 by commenting on what had been proved. We disagree.

One point of appellant’s defense was a showing that the checks had been paid and that the victims had agreed to drop the charges. The case had been dead-docketed once, and appellant attempted to explain that as having occurred because the matter had been settled between his former counsel and a former assistant district attorney. The State resisted that effort, contending that the dead-docketing of the case was not due to settlement, but to appellant’s failure to appear for trial when it was first on the calendar. During defense counsel’s argument to the jury, the prosecuting attorney objected to a statement concerning the reason the case was dead-docketed. After a colloquy, the trial court explained its ruling that the dead-docketing issue was irrelevant by explaining to the jury how the dead-docketing came about: appellant did not appear for trial and the same trial judge issued a bench warrant and put the case on the dead docket.

Considering the circumstances in which the trial court made its comment, we find this issue to be controlled by Goode v. State, 171 Ga. App. 901 (2) (321 SE2d 410) (1984): “It is reversible error for a judge in any criminal case ‘to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.’ OCGA § 17-8-5[7]. ‘However, remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.’ Johnson v. State, 246 Ga. 126 (5) (269 SE2d 18) (1980).” The trial court was explaining its ruling; we find no error.

3. Finally, appellant complains that he was prejudiced by improper remarks of the prosecuting attorney during closing argument. The remarks to which appellant takes exception were that defense counsel is paid to argue for appellant and that part of appellant’s defense, that the State had to prove that there was no person with the name that was signed to the check, was a “smokescreen.”

The trial court directed the jury to disregard the first remark, but appellant contends that it was so egregious that its effect cannot be cured. This court has ruled otherwise in Miles v. State, 183 Ga. App. 346 (2) (358 SE2d 904) (1987), where such a remark was held not to be “so invidious as to deny appellant a fair trial or render the guilty verdict suspect.” Id. at 349.

Decided April 20, 1988.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

The second remark was not the subject of an objection, so no issue is raised on appeal concerning it. Hudson v. State, 250 Ga. 479 (4) (299 SE2d 531) (1983). Even Hall v. State, 180 Ga. App. 881 (3) (350 SE2d 801) (1986), on which appellant relies, does not dispense with the requirement that an objection be made in the trial court. We hold, therefore, that appellant has shown no harmful error arising from the trial court’s actions during closing argument.

Judgment affirmed.

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


author: Pope, Judge.

text:
    75902.
    THURSTON v. THE STATE.
    (368 SE2d 822)
   Pope, Judge.

Defendant appeals his conviction for burglary and theft of a motor vehicle. We affirm.

1. Defendant’s accomplice pled guilty and testified against defendant at trial. None of the other witnesses could positively identify the defendant as one of the two individuals who burglarized a house under construction or as the individual who ran from the stolen vehicle when it wrecked after a high-speed chase from the scene of the burglary. Therefore, defendant argues there was insufficient evidence to convict him of the crimes.

The burglary victim testified the two burglars jumped in a stolen vehicle and drove away from the scene of the crime. He could not see the driver, but the passenger had on a red shirt. Defendant’s accomplice was injured in the subsequent wreck of the stolen vehicle and was found inside the vehicle wearing a red shirt. Defendant admitted he was not wearing a red shirt on the evening in question. One of the investigating officers testified he saw the driver of the stolen vehicle climb over the passenger to exit the wrecked vehicle and run away. A pair of tennis shoes was found near the wreck. Defendant was picked up hours later walking down a nearby highway in his bare feet. After arrest, he complained of injuries which could be consistent with one involved in an automobile accident.

A defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. “However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. [Cit.] Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. [Cit.]” Reaves v. State, 242 Ga. 542 (250 SE2d 376) (1978). The testimony of the accomplice and the evidence corroborating the accomplice’s testimony in this case was sufficient to justify a rational trier of fact to find defendant guilty beyond a reasonable doubt, in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 20, 1988.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Sonja K. Cooper, Assistant District Attorneys, for appellee.

2. Defendant takes exception to the judge’s charge to the jury “that voluntary intoxication is not an excuse for any criminal act or omission,” because no evidence was presented to the jury concerning defendant’s intoxication or consumption of alcohol. “Although there is no evidence that [defendant] was intoxicated, an erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. Davis v. State, 167 Ga. App. 701, 702 (1) (307 SE2d 272) (1983). We do not find the charge harmful or prejudicial under the evidence presented, and this enumeration of error is without merit.” Wilcox v. State, 174 Ga. App. 21, 23 (329 SE2d 244) (1985).

We reject defendant’s argument that the erroneous charge was prejudicial as an expression of the judge’s opinion concerning the accused, in violation of OCGA § 17-8-57. Defendant failed to preserve the issue for appeal by failing to make an objection or to move for mistrial at the time the instruction was given. See Barber v. State, 176 Ga. App. 103 (3) (335 SE2d 594) (1985); McDaniel v. State, 169 Ga. App. 254 (1) (312 SE2d 363) (1983). Moreover, we have examined the record and find the extraneous instruction was harmless.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76043.
    CLARK v. THE STATE.
    (369 SE2d 282)
   Benham, Judge.

Appellant was convicted of rape, aggravated sodomy, and burglary. In his enumerations of error on appeal he questions the sufficiency of the evidence presented against him.

Decided April 20, 1988.

Phillips D. Hamilton, W. D. Simpkins III, for appellant.

J. Lane Johnston, District Attorney, for appellee.

The victim positively identified appellant as the man who entered her home without her permission and forced her to have both vaginal and anal intercourse with him. She recognized appellant’s voice immediately, due to her prior employment of him and his mother. Appellant’s palmprint was found on the clothes dryer in the victim’s utility room, under a window broken to gain entry into the home. A fingerprint of appellant’s right middle finger was found on the window’s screen. Pubic hair found in the victim’s clothing and bed linens was miscroscopically similar to that of appellant, and pubic hair found in appellant’s underclothing was microscopically similar to that of the victim. Clothing matching the description given by the victim was found in appellant’s bedroom. Plaster casts of footprints leading to the broken utility room window were found to be similar in size, tread, and wear to shoes of appellant seized at the time of his arrest. The evidence was sufficient to authorize a rational trier of fact to convict appellant of rape, aggravated sodomy, and burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA §§ 16-6-1 (a); 16-6-2 (a); 16-7-11 (a); Palmer v. State, 174 Ga. App. 720 (331 SE2d 77) (1985).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    76159.
    HUDGINS v. THE STATE.
    (369 SE2d 54)
   McMurray, Presiding Judge.

Defendant appeals her conviction for simple battery. Held:

1. Defendant first contends the trial court erred “in allowing a tape recording into evidence without the proper foundation having been laid.”

“Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. Barkley v. State, 190 Ga. 641 (3) (10 SE2d 32) (1940); Freeman v. Young, 147 Ga. 699 (95 SE 236) (1918); Dillard v. State, 128 Ga. App. 747 (197 SE2d 924) (1973).” Newman v. State, 239 Ga. 329, 330 (236 SE2d 673). In the case sub judice, defendant failed to explain upon objection what additional facts were necessary to establish a proper foundation for introducing the tape recording into evidence. Consequently, there is nothing for this court to review.

Decided April 20, 1988.

Edward F. Hurley, for appellant.

David L. Lomenick, Jr., District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.

2. Defendant next asserts the trial court erred in admitting into evidence statements she made to police officers on the ground that the State failed to provide her with copies of the statements in compliance with her OCGA § 17-7-210 request.

Officer Dan Young of the Chattooga County Sheriffs Department testified as follows: “[Defendant] was sitting on the porch when I got out of the vehicle [to arrest her], and she says well, I reckon you are looking for me. And I said if your name is Janice Hudgins, I am. She said well, that’s me, I said well okay. And Officer Hill was with me, and [defendant] had her purse with her, and [Officer Hill] says looks like you are ready to go, and she said yeah.”

OCGA § 17-7-210 “relates only to those statements made by defendant while in police custody. Yeargin v. State, 164 Ga. App. 835, 838 (6) (298 SE2d 606) (1982).” Webb v. State, 179 Ga. App. 101, 103 (2) (345 SE2d 648). In the case sub judice, although the object of Officer Young’s visit to defendant’s residence was for her arrest, defendant was not under arrest at the time of her spontaneous statements to the police officers. Consequently, defendant’s statements were not custodial and therefore were not subject to discovery pursuant to OCGA § 17-7-210. Under these circumstances, the trial court did not err in admitting defendant’s statements into evidence. See Mitchell v. State, 174 Ga. App. 594, 596 (2) (330 SE2d 798). However, assuming the contrary, a review of the evidence presented at trial reveals that introduction of the above statements into evidence was not harmful error as it is highly probable the statements did not contribute to the jury’s verdict. See Wallin v. State, 248 Ga. 29, 31 (279 SE2d 687), and Dickey v. State, 179 Ga. App. 383, 384 (1) (346 SE2d 864). In this regard, the evidence revealed that defendant unmercifully beat the victim about the head and face with her fists. This was more than sufficient evidence to authorize defendant’s conviction for simple battery under the standard of proof required in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See OCGA § 16-5-23.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76268.
    In the Interest of R. W.
    (368 SE2d 824)
    Decided April 20, 1988.

      Timothy N. Shepherd, for appellant.

      E. Byron Smith, District Attorney, Thomas R. McBerry, Tommy

      K. Floyd, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

On October 28, 1987, R. W., who was then 16 years of age, appeared in the Juvenile Court of Henry County, Georgia and admitted the delinquent act of driving a motor vehicle 75 mph in a 55 mph zone. After adjudication, R. W. moved that the case be transferred for disposition to the juvenile court of the county of his residence, Spalding County. The Juvenile Court of Henry County denied this motion and “proceeded to make a disposition of the case at that point.” A fine was imposed upon R. W. and R. W.’s notice of appeal was filed on November 25, 1987. On January 25, 1988, the Juvenile Court of Henry County rescinded its order of disposition of October 28, 1987, and ordered that the matter be transferred to the Juvenile Court of Spalding County (county of R. W.’s residence) for final disposition. Held:

1. “The filing of a notice of appeal serves to supersede a judgment, and while on appeal, the trial court is without authority to modify, supplement, or vacate its judgment. Aetna Cas. &c. Co. v. Buttington, 227 Ga. 485 (1) (181 SE2d 495); Sumbry v. Land, 127 Ga. App. 786 (1) (195 SE2d 228), and cits.” D. P. v. State of Ga., 129 Ga. App. 680, 681 (1) (200 SE2d 499). Accordingly, the Juvenile Court of Henry County’s order, entered after the filing of the notice of appeal in the case sub judice, rescinding its order of disposition and transferring the matter to the Juvenile Court of Spalding County for final disposition, was a nullity and does nbt render moot the appeal from the prior judgment.

2. OCGA § 15-11-16 (b) provides, in pertinent part, that “if the adjudicating court finds that a nonresident child has committed an unruly or delinquent act, the adjudicating court shall after adjudication of delinquency or unruliness transfer the proceeding to the county of the child’s residence for disposition.” (Emphasis supplied.) It is undisputed that R. W. was a “nonresident child” as defined in OCGA § 15-11-16 (a) (2) at the time of the delinquent act and at the time of the adjudication of delinquency in that he then resided in Spalding County, Georgia. Consequently, the juvenile court erred in failing to transfer the case to the county of R. W.’s residence for disposition prior to the filing of R. W.’s notice of appeal. See In the Interest of L. J. V., 180 Ga. App. 400 (349 SE2d 37).

Judgment reversed.

Pope and Benham, JJ., concur.


author: Beasley, Judge.

text:
    75473.
    SIMMONS v. THE STATE.
    (369 SE2d 36)
   Beasley, Judge.

Defendant, caught in the home he had broken into by passing friends of the owners, appeals his burglary conviction. OCGA § 16-7-1 (a).

1. Defendant was appointed counsel for his trial and separate counsel for his appeal. Counsel has enumerated errors and has briefed those. In addition, she appended defendant’s pro se arguments concerning several issues, some of which are covered by counsel and some of which are not enumerated or argued by counsel. Defendant is apparently under the mistaken impression that he is entitled to have counsel and also to represent himself. He is entitled to either, not both. Ga. Const. 1983, Art. I, Sec. I, Par. XII & Par. XIV; Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986); Jones v. State, 171 Ga. App. 184, 185 (2) (319 SE2d 18) (1984). Therefore, we will consider the enumerations and arguments presented by counsel, whose representation of appellant has not been rejected.

2. After a jury panel had been called into the courtroom for voir dire and striking, defendant’s counsel orally moved to empanel another array on the ground that the panel was all white and defendant was black. The only authority cited was Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Defendant was given an opportunity to pursue the matter after he presented his Batson argument, but stated that he had nothing further.

Pretermitting whether defendant properly challenged the array, having filed no written motion as required by OCGA § 15-12-162, the issue presented has been decided adversely to defendant. In Campbell v. State, 185 Ga. App. 3 (363 SE2d 293) (1988), a timely challenge to the array was made, and the error similarly urged was that the trial court erred in refusing to inquire into the selection procedures of the all-white jury venire.

Campbell did not offer any evidence to support his challenge, instead relying upon “the mere observation that there were no blacks included among the forty-two potential jurors.” Campbell held that such a challenge is legally insufficient and that defendant’s reliance on Batson for it is misplaced. Batson targets the State’s discriminatory use of peremptory challenges, not the racial composition of the array.

3. Defendant challenges the admission of evidence of another incident on the basis that there was no criminal conviction. Although not in the record, it appears there was a pretrial hearing on the subject. The objection then and at trial was that it was insufficient evidence of another burglary.

The evidence of the incident on trial was that defendant was seen at approximately 2:30 p.m. on April 15 going into the Roberts residence by two friends of the Robertses’ son. They investigated and found the back door broken into. They encountered defendant rummaging through their friend’s bedroom. Defendant offered to get them high and to give them $50 each and a handful of gold jewelry which he displayed, if they would not turn him in to the police. He then attempted to run, dropping some of the jewelry and they apprehended him. The police arrived to take defendant into custody and, upon searching defendant, found additional jewelry.

Part of it belonged to Ms. Griffin, who lived within two blocks of the Robertses. She had been home that day for lunch from 1:00 to 2:00 p.m. and had left her house locked. Upon returning at 4:30, she found it broken into and her jewelry missing.

The State tendered this evidence as part of the res gestae, not as a “like act” introduced to show the purposes enumerated in State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). “[W]here . . . evidence of other transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof, such evidence is admissible as an exception to [the general rule excluding such evidence].” Spurlin v. State, 228 Ga. 2, 5 (4) (183 SE2d 765) (1971); Graham v. State, 171 Ga. App. 242, 254 (14) (319 SE2d 484) (1984).

Defendant used the fruits of an earlier incident in an effort to deter his captors from reporting the burglary on trial. Such evidence is within the rule of Spurlin. There need not be a charge or conviction relating to it for a criminal act to be introduced. High v. State, 153 Ga. App. 729, 731 (2) (266 SE2d 364) (1980). Nor need it be proven beyond a reasonable doubt. Kilgore v. State, 251 Ga. 291, 297 (3) (c) (305 SE2d 82) (1983). Recent possession of stolen goods raises an inference that the possessor stole them and is sufficient for admission under the present circumstances. Byrd v. Hopper, 234 Ga. 248, 250 (215 SE2d 251) (1975); Napier v. State, 184 Ga. App. 770, 773 (4) (362 SE2d 501) (1987).

4. Finally, defendant complains of the introduction of his mug shot, taken in connection with a 1978 Indiana charge.

Defendant here pleaded not guilty by reason of insanity, based on his cocaine addiction. His wife testified that from February to April 1986 he had become severely addicted to cocaine and had become disheveled in appearance. Prior to that time, she said, he had been neat in appearance.

Decided March 16, 1988

Rehearing denied April 21, 1988

Linda B. Borsky, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

In rebuttal, the State offered the 1978 photo to show what it contended was the unkempt appearance of defendant in 1978, thus negating this recent addiction/insanity defense. All markings indicating that the photo was a mug shot were removed and no reference was made to it as a mug shot in the jury’s presence. The case relied on by defendant, Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982) involved not only use of and reference to “mug shots” in the jury’s presence, but also the definition of them as “pictures of individuals that we have had previous cases on.” This was held to have placed defendant’s character in issue by identifying him as having a prior record of criminal offenses.

Admission of a mug shot, even with the identifying numbers left on it, does not indicate that an accused has been convicted of any previous crime and is not error. Dorsey v. State, 183 Ga. App. 409 (1) (359 SE2d 195) (1987).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur in the judgment only.


author: Carley, Judge.

text:
    75830.
    THE STATE v. RICHARDSON.
    (368 SE2d 825)
   Carley, Judge.

An accusation was filed which charged appellee with two counts of driving under the influence and one count of stopping unlawfully on a roadway. Appellee filed a pre-trial motion to suppress the results of an intoximeter test which had been made of his breath. In his motion, appellee asserted that, under applicable administrative rules, the results of his intoximeter test were invalid because the test had been administered less than twenty minutes after his arrest. At the hearing on the motion, a witness for appellee testified as to the existence of an “unwritten” twenty-minute rule, the purpose of which was the prevention of obtaining intoximeter test results which reflected the amount of alcohol residue in the mouth of the arrestee rather than the alcohol level of his blood. The trial court found that the intoximeter examination of appellee’s breath had not been administered in accordance with the “twenty-minute rule” and, on that basis, granted appellee’s motion to suppress the results. The State appeals from the trial court’s order granting appellee’s motion to suppress. See OCGA § 5-7-1 (4); State v. Strickman, 253 Ga. 287 (319 SE2d 864) (1984).

1. The statutory provision applicable to the chemical analysis of an individual’s breath provides, in relevant part, as follows: “Upon the trial of any . . . criminal action . . . arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol... in a person’s blood at the alleged time, as determined by a chemical analysis of the person’s . . . breath . . . shall be admissible. Where such a chemical test is made, the following provisions shall apply: (1) Chemical analysis of the person’s . . . breath, ... to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation. . . .” (Emphasis supplied.) OCGA § 40-6-392 (a) (1).

Thus, from the terms of the applicable statute, it is clear that the chemical test of an arrestee’s breath is intended to reflect his blood alcohol level at the “alleged time” that he was driving under the influence, not at some later time. The statute also makes clear that the test is to be conducted in accordance with methods which have been administratively approved, not in accordance with any other “approved” methods. If the Division of Forensic Sciences of the Georgia Bureau of Investigation had deemed adherence to a “twenty-minute rule” to be necessary to the obtaining of an accurate intoximeter analysis of a testee’s blood alcohol level at the “alleged time,” that administrative body would presumably have officially promulgated such a rule. There is no evidence that such a “twenty-minute” rule has ever been administratively approved. The witness who testified in the case as to the existence of an unwritten “twenty-minute rule” was qualified as an expert. His expert opinion as to how an intoximeter test should be conducted is not, however, the equivalent of a statement of objective methods which, in accordance with the applicable statute, have been administratively promulgated.

Accordingly, the trial court erred in predicating its suppression of the results of the intoximeter test of appellee’s breath upon the so called “twenty-minute rule.” If appellee was not willing to have the determination of his blood alcohol level “at the alleged time” rest exclusively upon the results of the State’s intoximeter examination, he was free to have a qualified person of his own choosing administer an additional test. See OCGA § 40-6-392 (a) (3). He is not entitled, however, to have suppressed from evidence the results of an intoximeter test which was shown to have been conducted within twenty minutes of the “alleged time” and in accordance with all administratively approved methods.

2. The State’s remaining enumeration of error is moot as a result of our holding in Division 1.

Decided April 21, 1988.

Patrick H. Head, Solicitor, Melodie H. Clayton, Janet L. Weitz, Assistant Solicitors, for appellant.

Charles V. Gandy, Jr., for appellee.

Judgment reversed.

Deen, P. J., and Sognier, J., concur


text:
    76073.
    SARGENT et al. v. BROWN.
    (368 SE2d 826)
   Pope, Judge.

Claimant in this workers’ compensation case was injured on August 24, 1984 when he cut his left wrist and arm while using a chainsaw to cut timber. Claimant’s employer accepted the accident as compensable and began paying workers’ compensation benefits. Benefits continued to be paid until August 1986 when, at the behest of the employer, an interlocutory order was issued suspending the payment of benefits based upon claimant’s refusal to cooperate with medical treatment.

At the hearing subsequent to the issuance of the order, claimant testified that he had failed to keep appointments with his treating physician because he had been incarcerated during the period in question. Further testimony revealed that claimant was incarcerated because he allegedly violated his probation by committing another crime; however, it was subsequently determined that claimant had been falsely accused of committing this crime and all charges against him were dismissed and he was released from custody. Pursuant to this testimony, the Administrative Law Judge (ALJ) “found that the claimant did not keep an appointment with [his treating physician] due to his incarceration on a criminal charge which has not been prosecuted, [and hence found] that the claimant’s refusal to cooperate was not unreasonable . . . ,” and ordered that claimant be paid benefits for the time he was incarcerated. The State Board of Workers’ Compensation and Superior Court of Dooly County affirmed the ALJ’s award.

The only issue for resolution on appeal is whether the ALJ erred in holding that the claimant was entitled to receive benefits during the period of his incarceration based on the holding in Howard v. Scott Housing Systems, 180 Ga. App. 690 (2) (350 SE2d 27) (1986). In Howard, we considered a similar issue and found that the claimant in that case was justified in refusing suitable employment which was offered to him while he was incarcerated but before he was adjudicated guilty. On certiorari, the Supreme Court agreed and held that “[i]n workers’ compensation cases where the employee is charged with a crime while receiving benefits, . . . the proper time for termination of benefits is the date of adjudication of guilt.” Scott Housing Systems v. Howard, 256 Ga. 675 (353 SE2d 2) (1987).

Decided April 21, 1988.

E. Harold Stone, for appellants.

Steven E. Marcus, Thomas M. Butler, for appellee.

The employer urges that Howard is not controlling in the present case because claimant’s incarceration related to a probation violation for a previous conviction and as such was punishment for a crime for which he had already been convicted. We disagree that the reasoning in Howard is inapplicable here. Before a decision to revoke probation is made, the probationer must be accorded due process, including notice and an opportunity to be heard. State v. Brinson, 248 Ga. 380 (1) (283 SE2d 463) (1981), and cits. Hence, just as an adjudication of guilt is necessary before benefits may be properly terminated when a claimant is charged with a crime, a probation revocation hearing must be held and a determination made that a probation violation has in fact occurred before a claimant’s benefits may be terminated. In the case at bar, the record evidence, consisting primarily of claimant’s testimony, indicates that such a hearing was never held, and that the claimant was simply held on the probation violation until it was determined that the charges against him were false, and the basis for revoking his probation evaporated. Under these facts, we agree that claimant was entitled to receive benefits for the entire period of his incarceration.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    75872.
    JOHNSON v. THE STATE.
    (369 SE2d 48)
   McMurray, Presiding Judge.

Defendant was convicted of rape and sentenced to serve 20 years in the penitentiary. Following the denial of his motion for new trial, he appeals. Held:

1. During closing argument, defense counsel stated that rape is a capital offense. The trial court interrupted and informed the jury that that was not the case: “[T]hat is a misstatement of the law, and I wouldn’t want the jury mislead. This case does not involve a capital offense.” Thereupon, following a bench conference, defendant moved for a mistrial. The motion was overruled.

Decided April 11, 1988

Rehearing denied April 25, 1988

Randall M. Clark, for appellant.

Glenn Thomas, Jr., District Attorney, Robert L. Crowe, Assistant District Attorney, for appellee.

In his first enumeration of error, defendant contends the trial court erred in interrupting his closing argument and overruling his motion for mistrial. Citing Hicks v. State, 256 Ga. 715 (352 SE2d 762), he argues that rape is a capital felony and the trial court was in error when it stated otherwise. We disagree.

In Hicks v. State, 256 Ga. 715, 727 (19) (b), supra, the Supreme Court pointed out that rape is a capital offense for purposes of determining statutory aggravating circumstances under the death penalty statute (OCGA § 17-10-30). This is because rape was a capital offense when the death penalty statute was enacted. See Crawford v. State, 254 Ga. 435, 440 (5) (330 SE2d 567). Thus, in the context of OCGA § 17-10-30 (b), rape is a capital felony. Hicks v. State, 256 Ga. 715, 727 (19) (b), supra. Rape is not, however, a capital offense in the context of this case. See OCGA § 16-6-1. It cannot be said, therefore, that the trial court erred in interrupting defense counsel’s closing argument and denying defendant’s motion for mistrial. See Hill v. State, 239 Ga. 799 (1) (239 SE2d 15).

2. The trial court did not abuse its discretion by sustaining the State’s objection to defense counsel’s mention of another rape case during closing argument. Maynard v. State, 171 Ga. App. 605, 607 (3) (320 SE2d 806). Defendant’s second enumeration of error lacks merit.

3. The trial court did not err in charging the jury that sexual intercourse with a woman who is temporarily without will, due to unconsciousness arising from sleep, is rape. Paul v. State, 144 Ga. App. 106 (2) (240 SE2d 600). The charge was adjusted to the evidence.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    75956.
    PALMER v. THE STATE.
    (369 SE2d 38)
   Birdsong, Chief Judge.

Appellant was convicted of theft of more than $500 from the Barrow County Probate Court between the period of April 1, 1985, and April 28, 1986. She appeals her conviction asserting six errors.

The probate court books were subjected to a general audit periodically. During this audit, the amount of money deposited in the bank by the office was balanced against the amount of money taken in by the office as documented in the office’s cash receipt journal. Random checks were made of other files in the probate court to be sure that the amount of money associated with actual tickets received had been duly recorded in the cash receipt journal. The general audits revealed no discrepancies.

In April 1986, Judge Cape noticed that the ticket files appeared to contain a large number of tickets compared to the number of entries for the month contained in the cash receipt journal. Judge Cape made a cursory comparison between the amount of fines that should have been collected (based on the number of tickets actually received) and the amount of cash that should have been available for deposit in the bank (based on the receipts issued from and entries recorded in the cash receipt journal). The result of this comparison revealed a suspected $800 shortage. Judge Cape suspended the appellant from office duties. The day she was suspended, the appellant made two large cash deposits in the bank which reduced the shortage level to $92. The following Monday an envelope, which had not been in the cash drawer before, was found which contained the missing $92.

Subsequent investigative audit resulted in the detection of cash shortages in the total amount of $16,201.50. This audit also revealed that while the shortages had occurred over a period of approximately one year, at all times the case receipt journal and the bank deposits balanced, so that the shortages were only detected when the actual tickets and bond forfeitures received were examined and the actual amount of money due from these sources was calculated. Thus, the certified public accountant concluded that a person could not commit this particular type of taking merely by grabbing handfuls of money indiscriminately from the cash drawer. Rather, it can be inferred, that the person taking the money must have had access to the cash receipt journal and known exactly how much money had not been duly receipted therein, otherwise the amount of money deposited from and contained in the cash drawer would not have balanced with the amount recorded in the cash receipt journal. The audit further determined that during the period in question certain checks had been deposited in the bank but the transaction had not been recorded in the cash receipt journal. As the cash deposits still balanced with the cash receipt book, it can be inferred that an amount of cash equal to the amount of unreceipted checks had been removed from the cash drawer. Handwriting analysis revealed that of the over 270 unreceipted tickets processed during the period in question, all but one had been processed by appellant. Judge Cape had processed one unreceipted ticket. Only the appellant and Judge Cape were working in the probate court office throughout the entire time period during which shortages of funds were occurring. Two other women performed clerical duties in the office, but neither of them was employed the entire time that losses occurred. The last unreceipted ticket was found on April 22, 1986, the appellant departed the office between 11:00 a.m. and noon that day, after being advised of a pending disciplinary action due to a minor matter unrelated to the missing funds. It was shortly thereafter that the loss initially was discovered.

The appellant denied committing the theft, and asserted that she was merely an innocent victim who had processed tickets received by someone else in the office without checking to see if the transaction had been duly recorded in the cash receipt journal. Appellant testified that Judge Cape would cash her personal checks from the cash drawer, and that sometimes her checks would be held for a prolonged period of time. The jury, however, found the appellant guilty as charged. Held:

1. Appellant’s first three enumerations of error are that: the court erred in accepting a verdict that is contrary to law, is contrary to the evidence, and is strongly against the weight of the evidence. These assignments of error are without merit.

Appellant asserts, in part, that the State’s evidence was circumstantial and failed to meet the statutory requirements of OCGA § 24-4-6. Appellant further asserts that “[t]here was no tangible evidence of the guilt of the accused, only circumstantial evidence which was purposefully slanted against the appellant.”

To support appellant’s conviction, the “[circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.” Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence in the case at bar in a light most favorable to the verdict, we conclude that the jury could have found that it excluded every reasonable hypothesis except that of the appellant’s guilt. Moreover, our review of the transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant’s fourth enumerated error is that the trial court erred in its admission, over timely objection, of inflammatory and prejudicial evidence.

Appellant asserts that the court “allowed into evidence matters which bore no relationship” to the appellant’s guilt, and allowed the appellee to present “grossly enlarged charts and diagrams selected from part of the evidence . . . with contrived and partial data made by the appellee to be placed on the charts and diagrams, and the conclusions ... in red to bias the jury.” However, appellant in his brief fails to identify adequately which charts were “grossly enlarged,” which data thereon was contrived and partial, which specific matters bore no relationship to appellant’s guilt, and which specific charts and

which specific portions thereof were printed in red. We find that Rule 15 (c) (3), as to specific reference to support enumerated errors, has been violated. Accordingly, this portion of appellant’s fourth enumeration of error is deemed to be waived and those assertions of error abandoned. See Winget v. State, 138 Ga. App. 433 (11) (226 SE2d 608); see also Smith v. State, 202 Ga. 851 (12) (45 SE2d 267) (no cause for reversal shown where “no attempt is made to describe or show the contents of the photographs in order that it might be determined whether they were . . . prejudicial and hurtful to the defendant”), citing Clare V. Drexler, 152 Ga. 420 (8) (110 SE 176). However, to comply with the spirit of OCGA § 5-6-48, and to insure that no fundamental unfairness has resulted, which would deprive this appellant of her right to fair trial (cf. Haywood v. Wooden Peg, 174 Ga. App. 806, 807 (331 SE2d 109)), we have sua sponte examined each chart and diagram, which was introduced in evidence and contained in the trial record before us. We find that none of these exhibits is inflammatory on its face, and that each admitted chart merely was cumulative of other admissible evidence of record. Further, each admitted chart and diagram does not lack relevancy on its face and thus in the trial judge’s discretion could be admitted “for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case.” Smith v. State, supra at 866. We also note that the trial judge was most selective in determining which exhibits could accompany the jury into the jury room. Most charts and diagrams were not allowed to accompany the jury. We find the trial judge’s ruling entirely compatible with the use of such exhibits solely for the legitimate purpose above discussed.

In this same broad assertion of error, appellant argues that prejudicial error occurred when, over timely defense objection, the State was allowed to provide the jury with “blazen orange markers to highlight the work product” of the certified public accountant. The accountant’s “work product” apparently had been reproduced onto copies of summaries that had been distributed to the jurors. The record discloses that at trial appellant made a specific objection, which was overruled, to the use of the highlighters on the grounds that the color of the highlighters was improper because “[i]t tends to inflame the jury.” This objection was overruled. The trial judge has inherent power to supervise the course of the trial (Johnson v. State, 254 Ga. 591 (11) (331 SE2d 578)), and to prescribe the manner in which court business will be conducted. Jackson v. State, 154 Ga. App. 367 (2) 268 SE2d 418); OCGA §§ 15-6-9 (8); 15-1-3 (4). The appellant has failed to establish that the trial judge abused his discretion in allowing the jurors to use colored highlighters.

We find appellant’s fourth enumerated error to be without merit.

3. Appellant’s fifth enumerated error is that the trial court erred in not allowing appellant’s sole defense. Appellant appears to have asserted two specific errors in support of this one assignment of error.

First, the appellant alleges without further discussion that the trial court erred in refusing to admit the bank statements and tax returns of the appellant and her husband, as they related to the defense that she did not take the money by establishing that her lifestyle had not changed during the period when the thefts of funds were occurring at the probate court. While the appellant may have meant only to address the court’s refusal to admit certain financial documents pertaining to Judge Cape and her husband in this particular enumerated error, we find the above issue also worthy of discussion.

In Walker v. State, 156 Ga. App. 842 (1) (b) (275 SE2d 755), cited by appellant at trial, this court held that in embezzlement cases, “it has been held permissible to prove acts of extravagance on the part of the accused, the amount and sources of his income, the amount reasonably necessary to maintain himself and family in the manner in which they were maintained during the period in controversy . . . and other like matters, not only on the question of intent, but also to show his bent of mind for the commission of the particular offense charged. . . .” Thus, the appellant argues, she should be able to show no change in lifestyle in her defense.

In refusing to admit evidence of certain financial records of appellant and other evidence not here in issue, the trial judge apparently concluded that the evidence was not relevant, at least partially on the ground that it was self-serving and that the State had offered no evidence to show that appellant’s lifestyle had changed. In Harris v. State, 183 Ga. App. 219 (2) (358 SE2d 634), we held that “ ‘evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. (Cit.) Even where the evidence is of questionable relevancy or competency, it is the rule in this state that it should be admitted, leaving its weight for the determination of the jury.’ ” We believe that the evidence of an unchanging lifestyle, at a minimum, would constitute evidence tending to throw light upon appellant’s intent, motive and bent of mind. Further, we are not satisfied that relevant evidence in the form of documentary evidence can be excluded merely because it is labeled as self-serving. If such were the case, a criminal defendant would be prevented from introducing any meaningful relevant evidence in his own behalf, as he would be virtually limited to the presentation of neutral or adverse information.

Any error resulting from the trial judge’s failure to admit this particular lifestyle evidence, however, will not result in reversal of judgment unless prejudice is shown. Riceman v. State, 166 Ga. App. 825, 828 (305 SE2d 595). In this case, the appellant introduced substantial amounts of evidence in the record regarding her unchanging lifestyle. The appellant’s husband testified regarding his Civil Service pension; that he owned three motor vehicles, the newest being a 1979 van; that there has been no major changes in his home since at least April of 1985; that he pays the bills; that the appellant has no “responsibilities” for which she must spend her salary; that appellant has no bank account because she apparently does not need one; that appellant’s lifestyle has not changed in the last year and a half to two years regarding expenditures; and, that he has seen no signs of appellant having $16,000 in her possession. The appellant testified that she did not take the money; that she and her husband pay $100 a month for house rent; that she did not have or need a bank account; and, that she took home about $600 per month from her job at the probate court. Appellant also testified that she had bought no new furniture, refrigerator, stove or couch. Although a delayed objection to this latter testimony was sustained, the trial judge did not order it to be stricken from the record. Thus, we are satisfied that the trial judge did not prevent or exclude evidence of appellant’s unchanging lifestyle, rather the court curtailed and limited the amount and type of information that it would allow to be presented to the jury. Compare these facts to the facts in Wright v. State 169 Ga. App. 181 (3) (312 SE2d 181).

Assuming without deciding that the trial judge abused his discretion in failing to admit certain evidence of appellant’s unchanging lifestyle and that such error raises a due process issue, we find any such error harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt. See Smith v. State, 182 Ga. App. 623 (1) (356 SE2d 702); LaRue v. State, 137 Ga. App. 762 (2) (224 SE2d 837).

Secondly, appellant asserts, citing Henderson v. State, 255 Ga. 687 (341 SE2d 439), that the trial court erred in refusing to allow certain financial information pertaining to Judge Cape and her husband to be given to the jury for their consideration during deliberation. The excluded evidence primarily pertains to certain bank statements and tax returns of Judge Cape and her husband.

The trial transcript reflects a certain amount of confusion existing in the resolution of this issue by the trial court. We are satisfied, however, that the following events are reflected in the trial transcript. Appellant filed a subpoena for certain financial records of Judge Cape and her husband, Judge Cape complied with the subpoena, and appellant was allowed to examine but not obtain copies of the documents. These records were admitted in evidence conditionally, but were not to be given to the jury pending further ruling of the trial court. Subsequently, when the appellant attempted to testify regarding certain lists containing information about Judge Cape’s monthly income and expenses, the trial judge refused to allow appellant to do so, stating “until such time as you can show some participation by the Probate Judge in some criminal activity that is the subject matter of this case, I’m not going to let you go into the Probate Judge’s personal finances.” Subsequently, appellant was again precluded from testifying regarding seeing certain personal lists of Judge Cape, which allegedly showed that her expenses exceeded her income on a monthly basis. Appellant then attempted to introduce Judge Cape and her husband’s bank records and 1984 and 1985 state and federal tax returns. The income tax records were for periods from January 1 through December 31 of each year in question, but the bank statements were for a period of April to April. Subsequently, the trial judge stated that he was “going to allow” the bank statements and tax returns in evidence. However, the trial judge ultimately declined to allow the documents to go to the jury without objection by the appellant.

At trial, appellant testified that Judge Cape frequently cashed checks for herself and others at the office using cash drawer funds, and that she frequently observed checks of Judge Cape in the amounts of $350 and $240, respectively, being held in the cash drawer. Appellant denied that she had taken the money. However, she stated that she never suspected anyone else in the office of stealing the money, and that she had never accused anyone else of committing the crime. Appellant did believe and speculate that the actions of Judge Cape in repeatedly keeping two checks of $350 and $240 in the cash drawer “could have” something to do with the missing money, because it was not “normal to keep that amount of — checks written for that amount in our cash drawer.”

The facts of this case are distinguishable from those in Henderson v. State, supra. In Henderson, it was held to be prejudicial error to exclude evidence, which was relevant to prove the existence of a criminal motive of another person who had been expressly accused by the defendant of committing the crimes with which the defendant had been charged, when the defendant’s sole defense was that the other person was the real perpetrator of the crimes. In the case at bar, the appellant, although given every opportunity to do so, declined to accuse another specific person of committing the theft or to offer other evidence tending to establish that fact. The trial judge properly concluded that Henderson was not dispositive of the issue concerning ‘ the admissibility of Judge Cape’s financial records, and repeatedly informed the appellant that the relevance of these records would have to be satisfactorily established.

The question of relevancy of the financial records of the probate judge was a question for the court, “and in the absence of an abuse of judicial discretion, this court will not interfere” with the trial court’s ruling. MacNerland v. Johnson, 137 Ga. App. 541 (1) (224 SE2d 431). The appellant has failed to establish that the trial court abused its discretion in declining to release these financial records to the jury. Further, while the object of all legal investigation is the discovery of the truth (OCGA § 24-1-2), this objective is not well served by allowing a criminal defendant to engage in a time-consuming and confusing “witch-hunt.” It is well established that “ ‘relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” ’ ” Carter v. State, 257 Ga. 510 (1) (361 SE2d 175). We are satisfied that both waste of time and confusion of the issues would have occurred had these financial records been presented to the jury and the appellant had attempted to cross-examine the probate judge over the many deposits and withdrawals reflected in the bank statements. In view of the questionable probative value of the financial records, especially in light of the evidence showing unreceipted tickets appearing on days when the probate judge was not in the office, we are satisfied that the danger of issue confusion and time waste substantially outweighed any probative value of the financial records. Finally, assuming error occurred in this instance we would not hesitate to apply the doctrine of harmless error using the standard set forth in Smith v. State and LaRue v. State, supra. Appellant’s fifth assignment of error is without merit.

4. Appellant’s sixth enumerated error is that the trial court erred in allowing appellee’s expert witness to invade the province of the jury.

Appellant has failed to follow our codal requirements that enumerations “shall set out separately each error relied upon.” OCGA § 5-6-40; Hester v. Baker, 180 Ga. App. 627 (1) (349 SE2d 834). However, each allegation of error in the sixth enumeration, deemed worthy of discussion, will be discussed separately. Any issue raised in the sixth enumeration that is not separately addressed is without merit.

In Smith v. State, 247 Ga. 612, 619 (277 SE2d 678), the Supreme Court held that “[e] xpert . . . testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Thus, “an expert may not testify as to his opinion as to the existence vel non of a fact. . . unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves.” Allison v. State, 256 Ga. 851, 853 (353 SE2d 805). While it is true that investigative auditing is a complex and demanding discipline, certified public accountants, like other experts cannot be allowed to invade those factfinding areas which are by law within the jury’s province.

During trial, appellee introduced in evidence over timely objection, both testimony of and, a chart (see appendix) prepared by the certified public accountant who performed the investigative audit of the probate court. The conclusions presented to the jury by the testimony and chart purport to be based upon the expert witness’ “experience as a Certified Public Accountant.” The expert previously had testified that among other discrepancies certain tickets had been received, the disposition portion on the back of the tickets had been filled-in by the appellant, no receipt had been written in the cash receipt journal for the funds accompanying the tickets, that checks pertaining to some of the tickets had been found to have been deposited in the bank, that the bank deposits should therefore have been greater than the amount reflected in the cash receipt journal but the two items still balanced, and thus a certain stated sum of money was missing. The expert’s chart and testimony basically reached a conclusion as to how this type of transaction could be accomplished. Specifically, the accountant concluded that if a check accompanied an unreceipted ticket, it could be held and not deposited until another ticket came in with cash in the same amount as the retained check, then the check from the first unreceipted ticket could be substituted for the cash in the second ticket, the second ticket could then be receipted and the check from the first ticket deposited causing the cash receipt journal to continue to balance with the deposits being made in the bank.

Appellee cites a series of cases in an attempt to establish that the province of the jury was not invaded by the chart and testimony. Of these cases the most persuasive is Lowe v. State, 179 Ga. App. 377, 378 (346 SE2d 845). However, this case is distinguishable from the situation before us. Unlike the expert testimony admitted in Lowe, which discussed the unlikeliness for certain physical evidence to accumulate on items belonging to the defendant and the meaning of such an unusual accumulation, the scenario testified to by the expert in this case involves nothing requiring expert knowledge or even the application of complex logic. Moreover, this type of inference, based on evidence of record, could be presented adequately to the jury in closing argument.

We find that it would not be “beyond the ken of the average layman” to conclude that these unreceipted checks found their way into the bank when the books still balanced because they had been substituted for a like amount of receipted cash. Having found that error occurred in the admission of this evidence, we must now test for prejudice. Riceman v. State, supra.

Having carefully examined the trial transcript, we are satisfied that the accused has not been prejudiced by the introduction into evidence of the chart and expert testimony discussed above, or by the introduction of any other testimony given by the expert witness. In this regard, we note that the trial judge carefully required the State’s expert witness not to give his conclusion that it was the appellant who retained any of the missing funds. Further, the trial court charged the jury regarding the presumption of innocence, burden of proof, reasonable doubt, expert witness testimony, and that the jury was “not bound or concluded by the testimony of any witness, expert or otherwise.” The trial court also charged the jury that, “opinion evidence is not conclusive or controlling. It is submitted to you, the jury, merely for whatever you may think it is worth. You may, upon review of the facts in the case, disregard entirely the opinion of any witness, whether he be an expert or non-expert.” Thus, we find that “it is ‘highly probable that the error did not contribute to the judgment,’ ” and accordingly that the error was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Appellant further asserts that “a travesty of justice” occurred which denied appellant “the right of fundamental fairness,” when the trial court only allowed him $400 “to controvert the appellee’s expert witness ... a Certified Public Accountant” who received in excess of $4,000 to conduct his investigative audit and to testify for the State. The Supreme Court has held that “the general rule is that the grant or denial of a motion for assistance of expert witnesses and other investigative services lies within the sound discretion of the trial court.” Castell v. State, 250 Ga. 776, 783 (301 SE2d 234). It is likewise within the sound discretion of the trial court to determine the amount of funds, if any, that shall be allocated for the preparation of the defense. Appellant has failed to demonstrate any abuse of discretion by the trial judge. Incidentally, we note that in a pretrial proceeding the appellant initially requested an amount calculated at a rate of $3.35 per hour for a period of 79 hours, and was awarded $400 by the trial judge. Further, considering the trial record in its entirety, we are satisfied that the appellant has been afforded both a “fair opportunity to present her defense” and “meaningful access to justice.” See generally Ake v. Oklahoma, 470 U. S. 68, 76-77 (105 SC 1087, 84 LE2d 531) (providing psychiatrist to an indigent defendant).

Appellant also argues that the testimony of the Certified Public Accountant was tainted for various reasons including conflict of interest and failure to follow accepted auditing standards. Appellant supports this argument with reference to an affidavit obtained from another Certified Public Accountant whose affidavit is attached to appellant’s amended motion for new trial. We have considered these allegations in light of the enumerated error that appellee’s expert was erroneously allowed repeatedly to invade the province of the jury and find that it adds nothing to our disposition of this issue. Further, we have carefully examined the affidavit in question and find that it does not meet the six-prong standard for new trial set forth in Rogers v. State, 257 Ga. 590 (2) (a) (361 SE2d 814) and Timberlake v. State, 246 Ga. 488 (271 SE2d 792). Further, we find nothing contained in the affidavit that would render the testimony of appellant’s expert inadmissible per se. See generally OCGA § 24-9-67.

5. In the part of appellant’s brief labeled “CONCLUSION,” it is asserted that “[t]he apellant [sic] was denied the right of proper cross examination of apellee’s [sic] expert witness.” The constitutional right of cross-examination has been statutorily recognized in this state. OCGA § 24-9-64. But, this right is not unlimited, and “[t]he right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.” Johnson v. State, 158 Ga. App. 333, 334 (280 SE2d 379). The specific question which appellant was prevented from asking was irrelevant and thus the answer thereto was properly excluded. OCGA § 24-2-1. However, the trial record reveals the following colloquy between the trial judge and appellant’s counsel: “THE COURT: Well, are you hunting other ways that embezzlement can take place? Is that what you’re after? MR. RHYMER: Yes, sir, and as to. . . . THE COURT: I’m going to sustain the objection. Go ahead. MR. RHYMER: ... as to his experience, Your Honor, and what he bases it on. And you say I can’t ask that anymore? THE COURT: No, sir.”

Reviewing the trial transcript from the point when the initial objection was made to the irrelevant question to the conclusion of appellant’s cross-examination of the State’s expert, we are satisfied that the negative response of the trial judge to counsel’s question was limited in scope to precluding the asking of a specific line of questions similar to that irrelevant question to which the objection had been filed; and, the ruling was not meant to be and did not have the legal effect of precluding subsequent proper cross-examination by counsel regarding the basis on which the expert’s opinion was fixed. Thus, we are satisfied that appellant was neither denied his right of cross-examination nor was he deprived of a fundamentally fair trial by the trial court’s ruling. Thus, we find that this assertion of error, contained in appellant’s brief but not properly enumerated as a specific error, is without merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

Decided April 6, 1988

Rehearing denied April 25, 1988

William Rhymer, Ellen Gettinger, for appellant.

Timothy G. Madison, District Attorney, T. David Motes, Deborah Wilbanks, Assistant District Attorneys, for appellee.


text:
    76345.
    DIVERSIFIED ASSEMBLY, INC. et al. v. RA-LIN & ASSOCIATES.
    (368 SE2d 786)
   Banke, Presiding Judge.

The appellants contracted with the appellee for the construction of a building. A dispute later arose between the parties, which was submitted to arbitration in accordance with the terms of the contract. Ten days after the initial arbitration hearing, the appellee requested that the arbitrator reopen the hearing pursuant to the “Construction Industry Arbitration Rules” in order to conduct an on-site inspection of the facility. The inspection was carried out; and within 30 days thereafter, an award was issued in favor of the appellee.

The appellants petitioned the superior court to vacate the award based on the fact that it had not been issued within 30 days of the initial hearing. The appellee, in turn, sought confirmation of the award. Relying on OCGA § 9-9-93, the trial court entered an order confirming the award, concluding that the appellants had made “no contention or showing that the inspection and the resulting delay in the entry of the award prejudiced their rights.” This appeal followed. Held:

OCGA § 9-9-93 (b) provides that an arbitrator’s award shall be vacated if the court finds that the rights of a party were prejudiced by inter alia, “(4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection.” Although OCGA § 9-9-90 (b) specifies that “[u]nless otherwise provided by the agreement, the award shall be made within 30 days following the close of the hearing or within such time as the court orders,” it further specifies that “[a] party waives the objection that an award was not made within the required time unless he notifies the arbitrators of his objection prior to the delivery of the award to him.”

The record in this case contains no showing that the appellants objected to the timeliness of the award prior to its issuance and delivery to them. Therefore, the appellants’ contention that the trial court erred in confirming the award is without merit.

Judgment affirmed.

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

Decided April 8, 1988

Rehearing dismissed April 25, 1988.

Charles V. Choyce, Jr., for appellants.

G. Michael Hartley, for appellee.


text:
    75897.
    TARVER v. THE STATE.
    (368 SE2d 828)
   Beasley, Judge.

Defendant appeals his convictions of armed robbery, OCGA § 16-8-41, and kidnapping, OCGA § 16-5-40.

1. Defendant contends the verdict was contrary to law because the evidence established that he lacked the necessary mens rea to be guilty of the offenses charged since at the time of their commission he was legally insane. OCGA § 16-3-2 provides: “A person shall not be found guilty of a crime if, at the time of the act. . . constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act.” OCGA § 17-7-131 specifies the procedure to be followed upon a plea of insanity “at the time of the crime.”

Defendant urges that the evidence shows he was schizophrenic with self-destructive tendencies, which mental illness precluded the jury’s finding anything other than he was insane or mentally incompetent at the time of the acts charged. His expert witness, a clinical forensic psychologist, stated that defendant suffered from schizophrenia and was unable to distinguish right from wrong. The State’s expert witness, also a forensic psychologist, testified that defendant did know the difference between right and wrong despite his history of mental illness.

“Schizophrenia is a psychosis, but a psychosis is not the equivalent of insanity. . . . It is a mental illness. ... [A] mere showing of a medical psychosis does not establish legal insanity.” Dennis v. State, 170 Ga. App. 630 (2) (317 SE2d 874) (1984). This was approved in Nelson v. State, 254 Ga. 611, 613 (1) (331 SE2d 554) (1985), and Wilson v. State, 257 Ga. 444, 449 (11) (359 SE2d 891) (1987). The proper standard for appellate review of the sufficiency of evidence regarding a jury finding of sanity in a criminal case is “whether after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime.” Brown v. State, 250 Ga. 66, 71 (295 SE2d 727) (1982); Nelms v. State, 255 Ga. 473, 475 (2) (340 SE2d 1) (1986).

Decided April 25, 1988.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

The expert testimony was conflicting on the issue of defendant’s mental capacity, but several non-expert witnesses who were at the scene stated defendant acted in a manner indicating he could indeed distinguish between right and wrong. The primary function of the jury was to determine the weight of the evidence and credibility of the witnesses. A finding of sanity may be overturned only if the evidence of insanity is clear and overwhelming. Brown, supra. The proof in this case would not require a verdict of not guilty by reason of insanity under the applicable evidentiary test. Salter v. State, 257 Ga. 88, 89 (1) (356 SE2d 196) (1987).

2. Defendant contends a new trial should be granted because the State’s expert witness gratuitously placed his character into evidence. During direct examination the witness was asked: “What about his [defendant’s] past history, Doctor Lower? Did you consider that when you concluded what you did?” The witness responded: “Yes, we did. As I have mentioned, he’s been with us at Central State Hospital on a number of occasions, most recently in 1980 and 1983. And he came to us from the prison system on both occasions. He was already in prison for something or other, and I did not —” At this point objection was interposed and motion for mistrial made. After argument outside the presence of the jury, the trial court overruled the motion. The jury returned and were instructed to disregard the testimony “as to defendant coming from prison twice.” No further objection was made nor was the motion for mistrial renewed.

We do not reach the merits of the unsolicited interjection by the witness as to defendant’s history of criminal behavior. The issue was not preserved for appellate review because following the curative instruction by the trial court, defendant failed to renew the motion for mistrial. Fears v. State, 174 Ga. App. 639, 640 (331 SE2d 49) (1985); Fambro v. State, 165 Ga. App. 445, 447 (4) (299 SE2d 114) (1983). See Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981).

Judgment affirmed.

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


author: Sognier, Judge.

text:
    75987.
    SPARKS v. HOFF.
    (368 SE2d 830)
   Sognier, Judge.

Melanie Sparks brought suit against Dr. Robert Hoff for dental malpractice in the performance of a tooth bonding procedure that allegedly resulted in the destruction of gum tissue above the bonded teeth. The trial court granted summary judgment in favor of Hoff and Sparks appeals.

We note initially that this cause of action arose prior to the effective date of OCGA § 9-11-9.1. In support of his motion for summary judgment, appellee submitted his own affidavit in which he averred the dental services he rendered appellant were performed with the degree of care and skill exercised by dentists generally under like or similar circumstances. In rebuttal, appellant submitted the affidavit of Dr. Stanley Halpern, the periodontal specialist she had consulted when she began to experience pain in the gum area above the bonded teeth. Dr. Halpern stated in his affidavit that he examined appellant and that the tissue destruction experienced by appellant “would not have occurred with the exercise of the degree of care exercised by dentists generally under like or similar circumstances.” Included in the record for consideration on appellee’s motion was Dr. Halpern’s deposition. In his deposition, Dr. Halpern emphasized that the tissue destruction experienced by appellant would not occur under normal circumstances. However, Dr. Halpern agreed that the fact that the tissue destruction did occur did not indicate that appellee failed to exercise the appropriate degree of care, that he had no criticism of appellee at all from a professional point of view, and that, upon reflection, reviewing his affidavit, he did not intend to convey to anyone or to indicate that it was his opinion appellee failed to exercise that degree of care that is exercised generally by dentists under like or similar circumstances. While Dr. Halpern did discuss the possible causes of the tissue destruction and hypothesized several situations demonstrating how the damage could have occurred, appellant’s counsel failed to elicit any responsive answer from Dr. Halpern to questions regarding whether appellee had failed to exercise the degree of skill and care required by dentists generally under those hypothesized situations. Dr. Halpern did agree with the statement that he did not intend “to exclude any possibility or the possibility of error on the part of the original treating dentist, that being [appellee], in the tissue destruction that occurred to [appellant],” responding: “I agree you can’t exclude it. I wasn’t there. I don’t know and I don’t think you could exclude that.”

We affirm the trial court’s grant of summary judgment in favor of appellee. In Loving v. Nash, 182 Ga. App. 253 (355 SE2d 448) (1987), this court noted that where a professional defendant in a medical malpractice case has defended himself by averring in his expert capacity that he complied with the specific standard of care in the profession in his treatment of the plaintiff, “then in order to prevail the plaintiff at the minimum must counter that expert opinion with a contrary expert opinion in her behalf, so as to create an issue of fact for a jury. [Cit.] To be sufficient to controvert the defendant’s expert opinion and create an issue of fact, the plaintiff’s expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state ‘the particulars in which the defendant’s treatment of the plaintiff was negligent.’ [Cits.]” Id. at 255 (1). Since the record clearly reveals that Dr. Halpern’s expert opinion was based upon his personal knowledge, it is necessary to address only the second aspect presented in Loving, namely, that “the plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [Cit.] She must state the particulars. She must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. [Cits.]” Id.

Decided April 25, 1988.

Harry P. Baskin, Jr., for appellant.

Palmer H. Ansley, David A. Sapp, for appellee.

The record sub judice is devoid of any evidence establishing the “parameters of the acceptable professional conduct” in that it contains no medical testimony to inform the jury of the proper method for treating a case such as appellant’s, i.e., what should have been done, and comparing that to what was actually done, so as to illustrate the professional malfeasance involved. See Beauchamp v. Wallace, 180 Ga. App. 554, 555 (349 SE2d 791) (1986). Compare Greene v. Fulton-DeKalb Hosp. Auth., 177 Ga. App. 499 (1) (339 SE2d 770) (1986). Upon a motion for summary judgment made by a professional in a medical malpractice suit, we have stated that “every defendant has the right to be advised what harm he has done, and in every case a plaintiff must show prima facie that a negligent act has been committed.” Loving, supra at 256 (1). In view of appellant’s failure to carry her burden on motion for summary judgment, the trial court’s judgment in favor of appellee must be affirmed.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76103.
    HOWELL MILL/COLLIER ASSOCIATES v. GONZALES.
    (368 SE2d 831)
   Sognier, Judge.

Howell Mill/Collier Associates (HM/CA) brought an action against Fernando Gonzales, Larry Lee, and Jim Marett, based on their personal guaranty of the lease of Sarita’s, Inc., a former corporate tenant of HM/CA. All three defendants filed answers raising affirmative defenses and counterclaims. HM/CA filed a motion for summary judgment against all three defendants, but Lee and Marett thereafter were voluntarily dismissed from the lawsuit by HM/CA. Gonzales opposed the motion for summary judgment, alleging that HM/CA was collaterally estopped from bringing this action because of the judgment in a prior lawsuit it had initiated against Tropikitchen, Inc., the successor in interest to Sarita’s, Inc. The trial court denied HM/CA’s motion for summary judgment, and dismissed the action based on its finding of collateral estoppel. HM/CA appeals.

The record reveals that HM/CA leased space in a shopping center it was developing to Sarita’s, Inc., and that Gonzales, Lee, and Marett signed a personal guaranty covering Sarita’s obligations under the lease. When Sarita’s experienced financial difficulties, the lease was renegotiated in several respects, including the substitution of Tropikitchen as tenant in place of Sarita’s. When, after a period of time, the restaurant was still unable to meet its obligations under the lease, HM/CA brought suit against Tropikitchen. Our analysis of the issues in this appeal necessarily involves a review of the salient facts in the suit against Tropikitchen, Inc. (“the Tropikitchen suit”), although no portion of that action is before this court. The only parties to that action were HM/CA, as plaintiff, which is also the appellant in the case at bar, and Tropikitchen, Inc., as defendant. Neither Sarita’s Inc., nor Gonzales, Lee, or Marett was a party to the Tropikitchen suit. Tropikitchen obtained a dismissal of that suit (the “first Tropikitchen dismissal”) on the ground that the suit was brought by HM/CA, which did not denote a legal entity. The Tropikitchen suit having been dismissed, HM/CA then filed this action against appellee, Lee, and Marett, and moved for summary judgment. Several days before the hearing on HM/CA’s motion, the first Tropikitchen dismissal in the other suit was vacated by consent order agreed to by the parties in that suit, HM/CA and Tropikitchen, Inc. On the day before the summary judgment hearing on HM/CA’s motion, the parties in the Tropikitchen suit (HM/CA and Tropikitchen, Inc.), having reinstated the Tropikitchen suit by means of the consent order vacating the first Tropikitchen dismissal, thereafter mutually dismissed without prejudice all claims against each other in that action (the “second Tropikitchen dismissal”).

1. Appellant contends the trial court erred by dismissing the action sub judice based on collateral estoppel. We agree and reverse. The record shows that no dismissal order in the Tropikitchen suit remained which could have estopped appellant. The record in this appeal affirmatively indicates that the first Tropikitchen dismissal had been vacated, and that the second Tropikitchen dismissal was without prejudice under OCGA § 9-11-41 (a). Even assuming, arguendo, that the first Tropikitchen dismissal was improperly vacated and set aside by means of the consent order, the present action is not a proper forum for addressing that issue. Rather, appellant must avail himself of the procedure set forth in OCGA § 9-11-60 (b) for setting aside a judgment. We have found no authority to support the trial court’s conclusion that the preclusive effect of the first Tropikitchen dismissal order survived simply because it was vacated by consent order, and we do not agree that this is a correct statement of the law. The consent order is not void on its face, and a judgment which is not void on its face is valid until it is set aside. Camera Shop v. G A F Corp., 130 Ga. App. 88, 90 (202 SE2d 241) (1973). Since it was not set aside, it operated to vacate the first Tropikitchen dismissal order, and placed the parties to that suit in the status they held before the first Tropikitchen dismissal order was entered, which allowed the voluntary mutual (second Tropikitchen) dismissals without prejudice. Accordingly, no order existed which estopped appellant, and the trial court erred by dismissing this action based on collateral estoppel. That dismissal must, therefore, be reversed.

2. Appellant also maintains the trial court erred by denying its motion for summary judgment, because appellee relied exclusively on his collateral estoppel defense and did not file the documents supporting its other arguments in opposition to appellant’s motion until after the hearing, making appellant’s motion uncontested. However, the trial court made no decision at the hearing but took the matter under advisement, and it is undisputed that appellee supplied the supporting affidavits before the trial court’s decision on the matter. “[E]ven though [OCGA § 9-11-6 (d)] and [OCGA § 9-11-56 (c)] require an opposing affidavit to be served at least one day prior to the summary judgment hearing, the trial court is vested with a discretion to consider affidavits not so served.” Liberty Nat. &c. Ins. Co. v. Houk, 248 Ga. 111, 112 (1) (281 SE2d 583) (1981). The trial court was thus authorized to consider the evidence submitted by appellee.

Further, in his answer appellee raised the defense of release. Although appellant asserted in its brief in support of the motion for summary judgment that it “ha[d] not released any defendant, either expressly or by operation of law,” nothing averred in the only evidence relied on by appellant, the affidavit of Suzanne Bunn, manager of appellant’s shopping center, served to pierce appellee’s allegations in this regard. However, Bunn did state in her affidavit that she was familiar with the documents kept in the regular course of appellant’s business which are under her supervision, and which were made at or within a reasonable time after the transaction to which the said records relate. Several such documents were attached to the affidavit, including the lease, the guaranty agreement, and the amendment substituting Tropikitchen, Inc. for Sarita’s, Inc., as the tenant. The testimony of Bunn provided a proper foundation for the admission of these documents into evidence as business records, and thus we must consider whether these documents pierced appellee’s allegation of release.

The guaranty, which was appended to the lease, recited that it was given “[i]n consideration of the letting of the Premises within mentioned to the within named Tenant,” i.e., Sarita’s, Inc., and provided that the guarantors agreed that the tenant and HM/CA, “its successors or assigns, may make such changes, as may be agreed upon between them with respect to any of the terms, covenants, conditions, agreements, or provisions of the lease without notice to or consent from the undersigned as guarantor.” The lease amendment substituting Tropikitchen as tenant is silent as to the guaranty. We cannot say, as a matter of law, based on this evidence alone, whether appellee agreed to guarantee Tropikitchen’s indebtedness as well as that of Sarita’s. However, even assuming appellee may be said to have consented in advance to any change in the lease agreement, it is undisputed that he did not consent to the dismissal of the other two guarantors. We agree with appellee that the dismissal of Lee and Marett was certainly without his consent, and if it operated as a release, would discharge him. See generally Overcash v. First Nat. Bank, 115 Ga. App. 499 (155 SE2d 32) (1967). See also OCGA §§ 10-7-20; 10-7-21. Although appellee states in his brief that at the hearing on appellant’s motion for summary judgment appellant admitted that he had settled with Lee and Marett, that fact has not been established by proper evidence in this record, since no transcript of that hearing is included in the record. “ ‘A brief cannot be used in lieu of the record or transcript for adding evidence to the record. [Cits.] We must take our evidence from the record and not from the brief of either party.’ [Cit.]” Johnson v. Medlin, 178 Ga. App. 650, 651 (344 SE2d 504) (1986). However, because appellant failed to carry its burden of piercing appellee’s defense of release, it was not necessary that appellee come forward with evidence sufficient to show the release. Appellant was not entitled to judgment as a matter of law, and the trial court did not err by denying its motion for summary judgment. See generally Beard v. McDowell, 174 Ga. App. 793, 794 (1) (331 SE2d 104) (1985).

Judgment affirmed in part and reversed in part.

Deen, P. J., concurs. Carley, J., concurs in the judgment only.

Decided April 25, 1988.

John G. Grubb, Jr., for appellant.

Frank P. Samford III, for appellee.