author: Smith, Judge.

text:
    A94A1209.
    ORKIN EXTERMINATING COMPANY, INC. v. McINTOSH et al.
    (452 SE2d 159)
   Smith, Judge.

Suzanne McIntosh and Jeanette Mobley brought suit against Orkin Exterminating Company, alleging Orkin misapplied pesticides to a home owned by Mobley and lived in by McIntosh. The trial court denied Orkin’s motion for summary judgment, and the case proceeded to trial. A pretrial motion in limine was granted by the trial court prohibiting the introduction of certain evidence by Orkin. At the close of plaintiffs’ evidence,.'Orkin’s motion for a directed verdict was denied. On the fourth day of trial, defendant’s second witness, a former employee, began to testify from documents which had not been produced by Orkin during discovery. These documents recorded Orkin’s inspections of the home after the application of the pesticides and its attempts at remedial action. Orkin previously had denied, both in discovery and at the pretrial conference, that any inspection reports existed. Upon voir dire, however, the witness testified he had simply walked into Orkin’s local office that morning and removed the documents from the case file. Orkin’s counsel could not explain why these documents were not produced, characterizing it as “an unsolved mystery.”

The trial court declared a recess and conducted an inquiry into the circumstances of the documents’ whereabouts and reappearance. The trial court declared a mistrial and ordered a hearing on the issue of fees and expenses necessitated by Orkin’s conduct. Plaintiffs’ counsel subsequently filed a formal motion for fees, expenses, and costs. After a hearing, the trial court found the documents were highly relevant to the issues being tried and determined plaintiffs had been irretrievably prejudiced by the failure to produce the documents, regardless of whether that failure was intentional or negligent. The court ordered Orkin to pay plaintiffs’ attorney fees necessitated by Orkin’s conduct in failing to comply with discovery and causing the mistrial. Thereafter, Orkin declined to obey the order on the basis that it was not a “final judgment.” The trial court found Orkin in wilful contempt of its earlier order and imposed a fine. Orkin appeals the order finding it in contempt. Orkin also appeals all previous rulings of the trial court pursuant to OCGA § 5-6-34 (d). See Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991).

1. Orkin’s contention that it may wait until final judgment in this action to pay attorney fees ordered by the trial court is unsupported by the Code, the case law, and indeed, by common sense. As the trial court observed, obedience to interlocutory orders, especially those governing discovery and trial management, is essential to the functioning of the judicial system. OCGA § 9-11-37 (b) (2) (D) specifically authorizes the trial court to treat as a contempt of court the failure to obey an order under that Code section.

Although an interlocutory order is not a judgment and therefore cannot be enforced by execution, the administration of justice requires that courts have the power to enforce their interlocutory orders and decrees by contempt proceedings. Warehouse Carpet Sales &c. v. S.C.J. Assoc., 170 Ga. App. 352, 353 (1) (317 SE2d 328) (1984). Orkin’s reliance on MARTA v. Federick, 187 Ga. App. 696 (371 SE2d 204) (1988), is misplaced because that case involves not the enforceability of an interlocutory order, but an attempt to make a bad faith claim under OCGA § 33-34-6 (b), (c) based upon a judgment entered as to fewer than all the parties and claims under OCGA § 9-11-54 (b).

Orkin’s argument that it might be unable to recover the money upon possible later reversal is disingenuous, given Orkin’s failure to use any of the procedural avenues open to it for protection of its interests, such as seeking a certificate of immediate review of the trial court’s order or paying the money into the registry of the court. Orkin was bound to obey the order, even if erroneous, and thus was properly held in contempt. Mathews v. City of Atlanta, 167 Ga. App. 168, 169 (306 SE2d 3) (1983).

2. We next address Orkin’s contention that the trial court erred in declaring a mistrial. The granting of a mistrial is within the sound discretion of the trial court. McEachern v. McEachern, 260 Ga. 320, 322 (2) (394 SE2d 92) (1990). “When a party proffers at trial evidence which should have been disclosed during discovery, exclusion of the proffered evidence is not an authorized sanction. The proper sanction is to order a postponement or a mistrial. [Cit.]” White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383) (1992). The trial court determined the withheld documents were crucial to the issues and would have significantly altered plaintiffs’ presentation of their case. Many of plaintiffs’ witnesses testified by deposition, and it was impossible to elicit their testimony regarding this newly available information. The trial court concluded Orkin’s conduct placed plaintiffs at a distinct disadvantage, no effective cure was available, and a mistrial was the only remedy. Orkin has not shown an abuse of discretion by the trial court, particularly in light of the unusual and extreme circumstances here.

3. A more complex issue is presented by the trial court’s award of attorney fees against Orkin. In addressing this question, we bear in mind that the trial court has the inherent power to “control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.” OCGA § 15-1-3 (4). The powers of the trial court to control the time, place, scope, and financing of discovery are to be construed broadly, Bicknell v. CBT Factors Corp., 171 Ga. App. 897, 899 (321 SE2d 383) (1984), and are not to be interfered with absent a clear abuse of discretion. Vaughn & Co. v. Saul, 143 Ga. App. 74, 80 (4) (237 SE2d 622) (1977).

In this action, the trial court imposed sanctions under OCGA § 9-11-37 (d). That Code section provides for immediate sanctions, without necessity of an order compelling discovery, for “[failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.” The imposition of penalties under 37 (d), however, is limited to an absolute failure to respond. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 439-440 (2) (254 SE2d 825) (1979). Here, there was no absolute failure to respond to the entire discovery request; there was a false response to a portion of a single interrogatory and its corresponding request for production. When an evasive or incomplete response to discovery is given, the proper remedy is a motion to compel resulting in a court order under OCGA § 9-11-37 (a). Id.

Some courts have interpreted a false response to an interrogatory as a “failure to respond” under Fed.R.Civ.P. 37 (d) or analogous state provisions and have imposed sanctions, including striking a party’s pleadings and imposing judgment. See, e.g., Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F2d 145, 155 (7th Cir. 1976); Bell v. Automobile Club of Michigan, 80 F.R.D. 228 (E.D. Mich. 1978), appeal dismissed, 601 F2d 587 (6th Cir.), cert. denied, 442 U. S. 918 (99 SC 2839, 61 LE2d 285) (1979); Sandoval v. Martinez, 780 P2d 1152, 1154-1159 (N.M. App. 1989). We need not reach that issue here, because we find a remedy for Orkin’s conduct within the scope of OCGA § 9-11-37 (a) (4) (A).

Orkin responded in verified interrogatory answers: “No written reports were provided.” This response did not appear to be evasive or incomplete; it was straightforward, complete — and, in hindsight, clearly false. As the trial court noted, plaintiffs understandably did not move to compel production of these items because a verified interrogatory response denied they existed. Plaintiffs again requested copies of inspection reports in the pretrial conference, and counsel for Orkin again assured both plaintiffs’ counsel and the trial court that those documents did not exist. He stated a witness had some recollection of preparing notes, but that counsel had searched for those notes, was unable to locate them, and did not intend to introduce them. The trial court gave counsel specific instructions regarding the use of such documents if they were produced by the witness.

The verified interrogatory answer and the assurances given by counsel to opposing counsel and to the court forestalled a motion to compel or an order compelling discovery under OCGA § 9-11-37 (a) before trial. However, the request by counsel and directions by the trial court made during the pretrial conference, together with the later post-trial hearing and rulings by the trial court, were delayed efforts to fulfill the intended function of OCGA § 9-11-37 (a). The delay in bringing this discovery matter on for hearing was due entirely to the conduct of Orkin, and the requests and rulings on the part of counsel and the trial court accordingly will be construed as the equivalent of a motion to compel and order compelling discovery under OCGA § 9-11-37 (a).

OCGA § 9-11-37 (a) (4) provides: “AWARD OF EXPENSES OF MOTION. (A) If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.”

A ruling of the trial court will be affirmed if it is right for any reason. Rowell v. Parker, 192 Ga. App. 215, 216 (2) (384 SE2d 396) (1989). We conclude the trial court had the power under OCGA § 9-11-37 (a) (4) (A) to award the attorney fees incurred by plaintiffs as a result of Orkin’s erroneous denial of the existence of relevant documents, as though awarding attorney fees in connection with a successful motion to compel. This fulfills the trial court’s stated purpose not to impose sanctions but to recompense plaintiffs for the expenses they incurred as a result of Or kin’s conduct. We note that Or kin’s conduct not only necessitated substantial expense to plaintiffs; it caused a mistrial and the waste of substantial time, money, and judicial resources.

A litigant will not be heard to contend that its own conduct has removed it beyond the reach of sanctions, when it has frustrated the orderly process prescribed in OCGA § 9-11-37 by false or erroneous responses to interrogatories. To condone such conduct would force parties to assume the falsity of every sworn interrogatory response and file endless motions preserving their right to relief. Such a rule would allow the unscrupulous to conceal documents from opposing parties by the simple expedient of denying their existence, without fear of penalty if the deception were by some chance discovered. It would discourage diligence in seeking out relevant documents even on the part of those not actively dishonest. Lack of diligence or negligence would not only be unpunished, it would be rewarded.

Orkin belatedly asserted a claim of privilege with regard to the inspection reports, relying on a general, nonspecific claim of privilege made in its response to a request for production. However, Orkin never moved for a protective order and never sought interlocutory review on that or any other basis, and the supposed claim of privilege was not asserted in the pretrial conference where similar notes were discussed. A general claim of privilege in a discovery response is insufficient to preserve a claim as to a document which has been falsely declared not to exist. As the trial court correctly observed: “Not only is such a process disruptive to the trial and a serious inconvenience to the jurors, it erodes public confidence in the judicial process. If defendant was allowed to succeed with its argument, the message to be conveyed is unmistakable — it is permissible to hide documents during discovery and then gamble on whether the deception will be uncovered, and if so, rely on the court to approve the misconduct by granting an out-of-time protective order.”

4. Orkin contends the trial court erred in denying its motions for summary judgment and for directed verdict, asserting there is no proof of negligent treatment of plaintiffs’ home and no proof of personal injury to McIntosh.

A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the non-movant, demands a particular verdict. OCGA § 9-11-50 (a). Where there is “any evidence” or “some evidence” to support the non-movant’s claims, a jury issue is created and a directed verdict is improper. Jones v. Abel, 209 Ga. App. 889, 890 (2) (434 SE2d 822) (1993). The evidentiary standard on summary judgment is analogous to that on directed verdict. Piggly Wiggly Southern v. Thigpen, 188 Ga. App. 839, 841 (374 SE2d 773) (1988).

As the trial court observed in its order, plaintiffs presented expert testimony that pesticide was improperly applied in plaintiffs’ home in violation of the Georgia Pest Control Rules. Orkin presented testimony that its treatment of the home was proper. This conflict in testimony is clearly inappropriate for resolution on motion for summary judgment or directed verdict. McIntosh presented medical testimony and other evidence of immediate physical symptoms, and two physicians testified her symptoms were due to long-term effects of pesticide exposure, specifically exposure to the pesticide used by Orkin. Orkin contends McIntosh’s physicians disagreed as to the cause and extent of her symptoms, but this dispute likewise is for the jury to decide. Orkin’s reliance on Boyd v. Orkin Exterminating Co., 191 Ga. App. 38 (381 SE2d 295) (1989), overruled on other grounds, Hanna v. McWilliams, 213 Ga. App. 648, 651 (446 SE2d 741) (1994), is misplaced. In that case, there was no evidence presented of any symptom or illness that could be attributed to pesticide exposure.

Orkin, however, contends the expert testimony relied upon by McIntosh is “outside the mainstream of scientific thought,” citing Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. _ (113 SC 2786, 125 LE2d 469) (1993). We first note that Daubert involves the application of Federal Rule of Evidence 702, which has not been adopted in Georgia. The applicable law in Georgia is OCGA § 24-9-67, which provides:, “[t]he opinions of experts on any question of science, skill, trade or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” Provided an expert witness is properly qualified in the field in which he offers testimony, Chandler Exterminators v. Morris, 262 Ga. 257 (416 SE2d 277) (1992), and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility. King v. Browning, 246 Ga. 46, 47 (1) (268 SE2d 653) (1980); Jones v. Ray, 159 Ga. App. 734, 736 (4) (285 SE2d 42) (1981).

Decided November 30, 1994

Reconsiderations denied December 13, 1994

Decker & Hallman, Richard P. Decker, W. Winston Briggs, for appellant.

Eugene C. Brooks IV, Adam P. Cerbone, Weiner, Shearouse, Weitz, Greenberg & Shawe, N. Harvey Weitz, for appellees.

With respect to a particular scientific procedure or technique, the trial court makes a determination “whether the procedure or technique in question has reached a scientific stage of verifiable certainty,” based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions. Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d 389) (1982) (rejecting use of “truth serum” to elicit testimony from criminal defendant); compare Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990) (accepting use of DNA testing). However, Orkin does not challenge a particular scientific test or technique employed by plaintiffs’ experts; Orkin challenges the conclusions drawn by those experts from testimony and evidence in the record. This determination is for the jury, and the trial court did not err in denying Orkin’s motions for summary judgment and directed verdict.

5. We conclude, however, that the trial court erred in granting plaintiffs’ motion in limine with respect to evidence of the relationship between McIntosh and a female witness on her behalf, with whom she lives and has had a sexual relationship “for many years.” While the trial court determined disclosure of this relationship would be prejudicial, concerns regarding prejudice in this instance must yield to the statutory mandate of OCGA § 24-9-68: “The state of a witness’s feelings towards the parties and his relationship to them may always be proved for the consideration of the jury.” (Emphasis supplied.) Even where the evidence already shows close friendship and cohabitation, a lesbian relationship between a party and a witness on her behalf may be proved to show their intimate relations and the witness’s potential bias. Watkins v. State, 206 Ga. App. 701, 706 (7) (426 SE2d 238) (1992).

Judgment affirmed in part and reversed in part.

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

       The trial court found that Orkin’s failure to produce the inspection notes was not wilful or intentional. However, failure to produce need not be wilful to be sanctioned; wilfulness affects only the choice of sanction to be imposed. See Mayer, supra, 243 Ga. at 437 (1).

       Those notes were prepared by another witness, have not reappeared at trial or elsewhere, and are unrelated to those at issue here.

       We further note that Orkin in this appeal sought permission to file a brief in excess of the page limitations under Rule 11 of this court, but when that motion was denied, Orkin filed a brief using a typeface some 50 percent smaller than the customary scale that produces approximately 65 characters per line. The typeface used in the brief is also significantly smaller than the typeface previously used by Orkin in other pleadings filed in this case in the trial court. This produced a brief with an actual, “uncompressed” length of approximately 45 pages, rather than the 30 pages routinely permitted by Rule 11. While present Rule 11 does not directly address reduction of typeface size, this practice is an obvious effort to circumvent that rule and, regrettably, demonstrates the need for amendment of the rule.

       We note that the documents not produced by Orkin, as discussed in Division 3, above, contain numerous notations regarding the treatment and remedial efforts by Orkin at the home and the physical symptoms complained of by McIntosh.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A94A1229.
    PAVAMANI, P. C. v. COLE et al.
    (451 SE2d 795)
   Pope, Chief Judge.

Plaintiffs/appellees Lloyd and Beverly Cole brought this medical malpractice and loss of consortium action against defendant E. Victor Pavamani, M. D., P. C., the professional corporation of Dr. E. Victor Pavamani, alleging Dr. Pavamani severed Lloyd Cole’s spinal accessory nerve while removing an epidermal cyst from Cole’s neck. The case was tried before a jury who returned a verdict in favor of Lloyd Cole on his medical malpractice claim and for defendant on plaintiffs’ claims for loss of consortium, punitive damages and expenses of litigation. Defendant appeals following the denial of its motion for new trial.

1. Defendant argues that the trial court erred in denying its motion in limine, which would have prevented plaintiffs from cross-examining an expert witness for the defense concerning his affiliation with MAG Mutual Insurance Company (MAG Mutual), a major medical malpractice insurer operating in this state. Defendant urges that the trial court’s ruling forced it to forego calling the witness at trial in order to avoid interjecting insurance into the trial of the case. We find no merit to that contention. Plaintiffs argue, and we agree, that the fact that the witness served on the Board of Directors and various committees of MAG Mutual was a proper subject of inquiry in order to show possible bias of the witness against malpractice claims. While it is true that plaintiffs’ right to a thorough and sifting cross-examination must be balanced by the need to avoid the introduction of improper and prejudicial evidence, the record in this case shows that defendant was insured by a rival carrier, not MAG Mutual; thus, evidence of defendant’s medical malpractice insurance coverage would not have been put before the jury by virtue of cross-examination of the witness about the witness’ affiliation with a rival carrier. Although defendant argues that the jury might have inferred that defendant was insured by MAG Mutual, that is mere supposition on defendant’s part; and in any case, this danger could have been easily avoided if the parties had stipulated that the jury be informed prior to the witness’ testimony that defendant was not insured by MAG Mutual. This case is thus distinguishable from those cases in which we have ruled that plaintiffs could not inquire into an expert witness’ relationship with defendant’s insurer. Cf. Conley v. Gallup, 213 Ga. App. 487 (445 SE2d 275) (1994); Thomas v. Newnan Hosp., 185 Ga. App. 764, 766 (1) (365 SE2d 859) (1988). The trial court did not err in denying the motion in limine under the facts of this case.

2. Defendant next contends the trial court erred in granting plaintiffs’ motion in limine, prohibiting defendant from cross-examining plaintiffs’ expert witnesses concerning whether the witnesses had ever been named as defendants in a complaint alleging medical malpractice. Having examined the record as to this issue, we find it to be without merit. The fact that plaintiffs’ experts may have been named as defendants in unrelated malpractice actions is not relevant to the issues being tried in the case at hand. This is especially true where, as here, the record shows that the doctors had only been sued; it fails to establish that either witness had ever been found to have committed an act of professional negligence. The record further shows that neither doctor had ever had a complaint filed against him alleging the negligent severance of a spinal accessory nerve during the removal of an epidermal cyst, as was alleged against the defendant in the case at bar. Under these circumstances, “[w]e cannot say that the trial court’s decision to prohibit the line of questioning at issue was an abuse of the discretion it may exercise concerning the scope of cross-examination and the relevancy of evidence.” Johnson v. Wills Mem. Hosp. &c., 178 Ga. App. 459, 461 (3) (343 SE2d 700) (1986) (physical precedent only).

3. Having examined the trial court’s charge to the jury in its entirety, we find no basis for reversal in any of the reasons urged by defendant. See, e.g., Packer v. Gill, 193 Ga. App. 388 (1, 2) (388 SE2d 338) (1989).

4. Because the jury awarded plaintiffs nothing on their claims for punitive damages, costs and attorney fees, error, if any, in submitting these items to the jury for their consideration resulted in no harm to the defendant. Fuller v. Smith, 245 Ga. 751 (2) (267 SE2d 23) (1980). Cf. Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 772-773 (1) (403 SE2d 235) (1991) (new trial was required because the damages were not itemized, making it impossible to tell if the award included impermissible items).

5. Defendant contends in its final enumeration that the trial court erred in refusing to strike a juror who indicated that her impartiality might be affected by a previous bad experience with a medical doctor. Although the juror indicated initially that because of her prior experience she could not guarantee that she would be impartial, upon subsequent questioning by the trial court she affirmatively responded that she could render a fair and impartial decision based on the evidence presented at trial. “[T]he trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the . trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. Given [the juror’s] responses to the trial court’s questioning and [her] eventual agreement that [she] could decide the case based solely on the evidence presented, we do not find such manifest abuse here. The trial court did not err by denying [defendant’s] request to excuse this juror for cause.” (Citations and punctuation omitted.) Green v. Wilcox, 206 Ga. App. 192, 193 (424 SE2d 801) (1992). Cf. Meintzer v. Weinberg, 212 Ga. App. 307 (1) (441 SE2d 774) (1994).

Decided November 21, 1994

Reconsideration denied December 13, 1994

Whitehurst & Riexinger, Elaine W. Whitehurst, Stephen P. Riexinger, for appellant.

Walbert & Hermann, Paul D. Hermann, William K. Day, Charles R. Bridgers, for appellees.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Blackburn, Judge. Ruffin, Judge,

text:
    A94A1318.
    CHAPPELL v. THE STATE.
    (451 SE2d 491)
   Blackburn, Judge.

Defendant Marvin Chappell appeals his conviction by a jury on one count of a violation of the Georgia Controlled Substances Act involving the sale of cocaine.

The evidence, viewed in a light most favorable to upholding the jury verdict, shows that on February 11, 1993, an undercover police agent accompanied by an informant approached Chappell in Quit-man, Georgia, and asked him for a “forty” (a $40 piece of crack cocaine). Chappell told the undercover agent and informant that he had nothing and that he did not mess with that stuff anymore. The informant again told defendant he needed a “forty.” The tape of the conversation shows defendant told them, “[c]ome back in a, come back in a minute he just went to the back, he’ll be through in a minute, go down the (inaudible) and come back here and come back, turn around and come back.” The officer and the informant did as instructed and when they returned Joe Samuel approached their car and without any conversation between the parties, gave them a “forty” and received $40 from them. This fact clearly indicates that defendant told Samuel what to do and supports Samuel’s pre-trial statement. How else would he have known what to deliver and what to collect? In Samuel’s statement, which was admitted into evidence, he said that he heard the original conversation between defendant and the police agents. He further stated that after the agents pulled off as instructed, defendant approached and gave him the crack cocaine and told him to give it to the people in the truck. The drug transaction was thereafter completed by Samuel as instructed. Defendant watched the delivery and had an unrelated conversation with the informant thereafter.

1. Chappell argues the trial court erred by admitting into evidence, over objection, parol and documentary evidence of his seven-year-old prior conviction for possession of cocaine with intent to distribute in violation of OCGA § 16-13-30 as a similar transaction or occurrence for the purpose of showing course of conduct, modus operands and identity. The prior transaction involved a guilty plea to possession of 15 grams of crack cocaine with intent to distribute. The cocaine was seized from the kitchen sink in defendant’s residence during the execution of a search warrant. The deputy involved testified that the cocaine was found in plastic bags prepared for distribution and identified Chappell as the perpetrator.

Evidence of a prior offense or act is highly and inherently prejudicial, raising an inference that an accused is likely to act in the same or in a similar manner on another occasion, thereby putting the accused’s character in issue. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). In Williams, the Supreme Court held that before evidence of prior transactions may be admitted, the court must determine that they are sufficiently similar to the present charge and meet certain other requirements. The trial court determined that the evidence of the independent crime, which involved the intent to distribute cocaine, was sufficiently similar to the present cocaine sale case to show defendant’s course of conduct, modus operandi and identity. “There is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” Gonzalez v. State, 213 Ga. App. 667 (445 SE2d 769) (1994). The incidents are sufficiently similar where the defendant pled guilty to possession with intent to distribute in the prior case and was convicted of the sale of cocaine in the present case. Collins v. State, 205 Ga. App. 341, 343 (422 SE2d 56) (1992).

The deputy’s identification testimony of Chappell as the perpetrator of the prior incident satisfied the identification requirements of Williams. While the trial court failed to apply the “balancing test” requirement of Williams, it is clear in this case that based upon defendant’s denial of the commission of the subject crime (sale of cocaine), a past conviction involving the intent to commercially distribute cocaine would be most helpful to the jury, and therefore the State’s need would have outweighed the prejudice to the defendant. Any error by the trial court in failing to apply the balancing test was harmless under the facts of this case. The trial court did not commit harmful error in allowing the State to introduce the similar transaction evidence.

2. Defendant contends that the evidence was insufficient to sustain the conviction. The record contains the testimony of the agent involved, the confidential informant, and the written statement of Joe Samuel who completed the drug delivery on behalf of defendant. While Samuel offered contradictory live testimony, his written statement was properly admitted as substantive evidence. “[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

In any event, Samuel’s statement was introduced with the consent of defendant, and he cannot now complain. It is also noted that while defense counsel contended Samuel could not read or write, the following colloquy occurred: The Court: “Speak up whether or not you can read and write. Samuel: [Referring to the written statement] “This ain’t my handwriting”; a strange answer from one who cannot write. The credibility of the witnesses and conflicts in evidence are for the jury to resolve, as they did to defendant’s detriment. This court does not examine the weight, but rather the sufficiency of the evidence. Alexander v. State, 199 Ga. App. 228 (404 SE2d 616) (1991). The evidence was sufficient for a reasonable trier of fact to find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781) (61 LE2d 560) (1979).

3. Defendant enumerates as error the trial court’s exclusion of hearsay evidence concerning conversations between defendant’s attorney and witness Samuel at arraignment. Defendant sought to have witness Austin testify to confirm certain such conversations as to which witness Samuel had already testified and acknowledged. The trial court did not err in excluding this evidence. See Goodwin v. State, 208 Ga. App. 707, 709 (431 SE2d 473) (1993).

4. Defendant enumerates as error the failure of the State to properly notify defendant of its intention to seek life imprisonment pursuant to OCGA § 16-13-30 (d). Contrary to defendant’s contentions, notice was properly given pursuant to OCGA § 17-10-2 (a) and is contained in the record. See Mays v. State, 262 Ga. 90 (414 SE2d 481) (1992).

5. Defendant enumerates as error the failure of the trial court to exclude the testimony of a State witness who remained in the courtroom subsequent to the court’s granting of the “sequestration rule” at defendant’s request. Witness Dorsey, a prior transaction witness, inadvertently remained in the courtroom in violation of the sequestration order during the pre-trial hearing. Such a violation affects only the weight and credibility and not the admissibility of the witness testimony. Blanchard v. State, 247 Ga. 415, 416, 417 (276 SE2d 593) (1981). The trial court did not err in exercising its discretion in allowing the witness to testify at the pre-trial hearing.

6. Defendant enumerates as error the admission of the audiotape of the drug transaction and the transcript thereof for jury consideration solely on the basis that such was hearsay evidence. Defendant cites no authority for his position. The tape contains the actual voice of the defendant and was properly authenticated. See Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207 (88 SE2d 167) (1955). The court did not err in allowing the jury to read along with a properly authenticated transcript while the tape was being played in the courtroom. See Brooks v. State, 141 Ga. App. 725, 736 (234 SE2d 541) (1977).

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

I concur in the affirmance of the judgment of conviction only because the evidence was overwhelming; thus, the trial court’s erroneous admission of Chappell’s prior conviction was harmless. See Watkins v. State, 206 Ga. App. 701, 704 (1) (426 SE2d 238) (1992). However, I write separately because I do not agree that we can ignore the test set forth in Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991) on the admissibility of prior transactions in any case, and substitute in lieu thereof a test which turns on the degree to which evidence of prior transactions would be helpful to the jury, and whether the State’s need outweighs prejudice to the defendant.

The third prong of the Williams test requires “a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.]” Id. at 642. While the prior offense need not be identical, “the evidence must be relevant for some purpose other than to show the probability that [Chappell] committed the crime for which he is on trial because he is a person of criminal character. [Cit.]” Morris v. State, 212 Ga. App. 779, 780 (1) (442 SE2d 792) (1994).

The trial court admitted the prior conviction to show course of conduct and modus operandi. However, Chappell’s prior conviction “did not tend to establish . . . the purposes to which the court confined it.” Burney v. State, 201 Ga. App. 64, 65 (1) (410 SE2d 172) (1991). Instead the evidence demonstrates that the prior crime was significantly different. As a consequence, there was “no logical connection so that proof of the independent [crime] tended to establish the crime charged, except by raising an inference that appellant, who had [violated the Georgia Controlled Substances Act with cocaine] on [a] prior [occasion], was likely to have committed the [crime] being tried. The three affirmative showings required by Williams were not and could not have been made.” Radford v. State, 202 Ga. App. 532, 535 (2) (415 SE2d 34) (1992); Lumpkin v. State, 205 Ga. App. 68 (3) (421 SE2d 100) (1992). Accordingly, the trial court erred in admitting the prior conviction.

Decided November 29, 1994

Reconsideration denied December 13, 1994.

Edith M. Edwards, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.


author: Ruffin, Judge.

text:
    A94A1698.
    MCINTYRE et al. v. POPE et al.
    (451 SE2d 110)
   Ruffin, Judge.

Appellants, Christine and Wayne Mcintyre, brought this medical malpractice action against appellees, Pope and Geltz. Pursuant to Uniform Superior Court Rule 13.1, the trial court limited closing argument at trial to one hour per side. The jury returned a verdict in favor of Pope and Geltz.

In their sole enumeration of error, the Mcintyres contend the trial court erred in limiting closing arguments to one hour because OCGA § 9-10-180 provides each side shall have two hours for closing argument. Specifically, they argue Uniform Superior Court Rule 13.1 (“the Rule”) conflicts with OCGA § 9-10-180, and the Rule must therefore yield to the statute. See preamble to the Uniform Superior Court Rules and Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (1) (374 SE2d 785) (1988).

We do not agree that the Rule and statute conflict in this case for the reasons which follow. OCGA § 9-10-180 limits the amount of time for argument in civil cases to two hours per side. Uniform Superior Court Rule 13.1 (D) also limits argument, but the limitation prescribed in the Rule is one hour per side. However, Uniform Superior Court Rule 13.2 allows a party to extend this time period if, prior to argument, counsel applies to the court for an extension of time.

In Carter v. State, 263 Ga. 401 (435 SE2d 42) (1993), our Supreme Court examined a variation on this issue and upheld the Uniform Superior Court Rule. In Carter, the appellant in a criminal case objected to the trial court allowing the State’s closing argument to extend beyond the one-hour time limit prescribed in Rule 13.1. The State had not requested additional time under Rule 13.2. In its opinion, the Court specifically referred to OCGA § 17-8-73 which allows two hours for argument in capital cases. Id. at 402. Despite its cognizance of the statute, the Court upheld Rule 13.1. “Here, counsel for the State made no pre-argument request for additional time. Thus, the trial court would have been authorized to deny counsel for the State the opportunity to finish his closing argument.” Id. Hence, the Supreme Court must have found no conflict between the Rule and the statute. See also Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 736-737 (350 SE2d 265) (1986), aff’d 256 Ga. 739 (354 SE2d 160) (1987) (the Georgia Supreme Court was aware of the Georgia Code when it issued the Uniform Rules and must have found no inconsistency between the rule in question and the statute).

Decided November 23, 1994

Reconsideration denied December 13, 1994

Wayne B. Kendall, for appellants.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, for appellees.

We similarly find no conflict between Rule 13.1 and OCGA § 9-10-180 in this case. Here, the Mcintyres’ counsel made no request for additional time. We are unable to say that had counsel requested extra time prior to argument, the court would not have granted the request, thereby eliminating any potential conflict between the Rule and the' statute.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge. McMurray, Presiding Judge,

text:
    A94A1781.
    SCOGGINS v. BROWN et al.
    (451 SE2d 478)
   Pope, Chief Judge.

Plaintiff, a five-year-old boy who was injured when he stepped on a nail in defendants’ yard, appeals from the trial court’s grant of summary judgment for defendants.

Defendants (Mr. and Mrs. Brown) and plaintiff’s parents (Mr. and Mrs. Scoggins) were good friends, and plaintiff’s family frequently visited defendants. When Mr. Brown was working on a project around the house, Mr. Scoggins often gave him a hand, and that was what he was doing on the afternoon of plaintiff’s accident: Mr. Scoggins was helping Mr. Brown work on his deck, while Mrs. Scoggins and Mrs. Brown were sitting in the yard with the Scoggins’ daughter, and plaintiff was playing in the yard. The men were using wood from a woodpile near the back of the yard. All the adults knew the wood in the pile had nails in it, and both Mr. Brown and Mr. Scoggins warned plaintiff not to go near the woodpile because of the nails. Nonetheless, plaintiff followed his father to the woodpile and stepped on a board with a nail sticking out of it. Although plaintiff has now fully recovered, his wound became infected and surgery was required, resulting in medical bills in excess of $20,000.

1. Plaintiff first argues that the trial court erred in concluding he was a licensee rather than an invitee as a matter of law, and we agree. There is some evidence tending to show the Scoggins were social guests, in which case they were licensees; but there was other evidence that Mr. Brown invited the Scoggins for the purpose of obtaining Mr. Scoggins’ help with the deck, in which case they might be invitees. See Phillips v. Lindsey, 184 Ga. App. 728 (362 SE2d 491) (1987). Accordingly, a genuine issue of fact existed regarding the Scoggins’ status, and summary judgment should not have been based on this ground.

2. Nonetheless, summary judgment was properly granted for defendants because regardless of the Scoggins’ status, defendants met their duty of care by warning their guests of the dangerous nails in the wood. Where parents are watching their child play on someone else’s land and the parents are aware of a dangerous condition, it is the parents’ duty, not that of the landowner, to ensure that the child avoids the danger. See Wren v. Harrison, 165 Ga. App. 847 (303 SE2d 67) (1983). In this case, all the adults had equal knowledge of the dangerous nails in the woodpile, and plaintiff was within an arm’s reach of his father and within eyesight of his mother when the accident occurred. Moreover, plaintiff himself was warned several times not to go near the woodpile. Under these circumstances, the trial court did not err in concluding that plaintiff’s injury was not proximately caused by any negligence on the part of defendants as a matter of law.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

While the majority has faithfully followed the decision in Wren v. Harrison, 165 Ga. App. 847 (303 SE2d 67), it is my view that this earlier case announces an incorrect rule of law. While parents have a duty to exercise due care for the safety of their children, I see no basis for holding that the parents’ duty somehow releases a landowner or occupier of land from their duties to children who come upon the land. In accordance with the first division of the majority opinion, the injured child in the case sub judice must be viewed as an invitee so that the applicable duty of the landowner is to exercise reasonable care in keeping the premises safe. OCGA § 51-3-1. Once the landowner’s duty of care is acknowledged, a jury may resolve the questions of whether parent or landowner or both were negligent, and where lies the proximate cause of the child’s injury.

The present case is not entirely dissimilar from an automobile collision wherein an injured child is a passenger in one of the vehicles. The child may pursue a claim against the non-parent driver subject to proof of the elements of any tort claim, including negligence and proximate cause. Taylor v. McClendon, 205 Ga. App. 390 (2) (422 SE2d 440).

Decided November 21, 1994

Reconsideration denied December 13, 1994

Fitzpatrick & Camp, Thomas A. Camp, for appellants.

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Kim T. Stephens, for appellees.

The holding in Wren which would absolve the landowner of any duty of care towards the child is entirely unsupported by the preceding chain of authority, is contrary to our statutory law, and should now be corrected. Therefore, I respectfully dissent since I would overrule Wren, supra, reverse the grant of summary judgment in favor of defendants, and return the case sub judice to the superior court for trial. See also Haliburton v. Cole, 193 Ga. App. 795, 796 (2) (389 SE2d 13).

The concept for which the majority cites Wren was stated without analysis or explanation as being predicated upon George R. Lane & Assoc. v. Thomasson, 156 Ga. App. 313 (274 SE2d 708), and the case cited therein. However, this earlier root case does not state the rule announced in Wren and was decided under alternative theories of law easily distinguishable from the rule stated in Wren, that is, that liability was barred under an indemnity clause in a lease, or because the child who died was a trespasser, or at best licensee, so that there was no liability in the absence of wilful and wanton conduct by that defendant. In the root case of George R. Lane & Assoc. v. Thomasson, supra, the only references to an absence of duties on the part of landowners to those who came upon their land was with reference to the lesser standards of care provided trespassers and licensees. The authority cited there is also limited to cases discussing these lesser standards of care. Also, while a reference is made to the parents’ duty to provide for the safety of a child, no connection between that reference and the holding of the root case was stated or explained.


text:
    A94A1870.
    RASKIN v. WALLACE.
    (451 SE2d 485)
   Ruffin, Judge.

Appellant, Fred Raskin, is an inmate who was convicted of murdering his wife. Prior to the murder, Raskin was a psychiatric patient of appellee, Dr. James Wallace. Raskin filed an action for medical malpractice against Wallace alleging that Wallace was unprofessional and erred in his care of Mr. and Mrs. Raskin, resulting in Mrs. Raskin’s death and Mr. Raskin’s imprisonment. Contemporaneously with the complaint, Raskin filed his own affidavit entitled “The Affidavit of Fred Raskin as to the Expert Witness Harold Clifford Morgan and his testimony.” Dr. Morgan is a Board certified psychiatrist who evaluated Raskin and testified at Raskin’s criminal trial that Raskin’s physician should have hospitalized him immediately after Raskin began threatening to kill his wife. Raskin attached to his affidavit certain portions of the transcript from Dr. Morgan’s trial testimony and averred the transcript should be incorporated into the affidavit, thereby satisfying the expert affidavit requirement under OCGA § 9-11-9.1.

Wallace moved to dismiss the complaint and the trial court granted the motion, holding that Raskin’s affidavit was based on hearsay, not based upon proper expert testimony and otherwise insufficient to constitute a proper affidavit under OCGA § 9-11-9.1.

1. Raskin contends the trial court erred in ruling that his affidavit was insufficient because he is an indigent inmate who cannot afford an expert witness as required by OCGA § 9-11-9.1 and, accordingly, he has been denied access to the courts and equal protection of the law. “ ‘A constitutional question is within (the Supreme) (C)ourt’s jurisdiction if it involves ... an attack upon the constitutionality of some law of this state. . . . (Cit.)’ Zepp v. Mayor & Council of Athens, 255 Ga. 449, 451 (2) (339 SE2d 576) (1986). However, ‘(i)t clearly is the law of this state that the Supreme Court is not required to and “will [not] pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was . . . distinctly passed on by the trial judge. (Cits.)” ’ ” Archie v. Scott, 190 Ga. App. 145, 146 (1) (378 SE2d 182) (1989). Thus, only if the constitutionality of OCGA § 9-11-9.1 had been raised and ruled upon below, would it be proper to transfer this case to the Supreme Court. Although Raskin raised his equal protection argument below, the trial judge did not “distinctly pass” or rule on it. Accordingly, Raskin’s equal protection enumeration presents nothing for review by any appellate court. Id.

2. Raskin also contends the trial court erred because Dr. Morgan is an expert in psychiatry competent to testify and Raskin’s affidavit, which recited and attached parts of Dr. Morgan’s trial testimony, was sufficient to satisfy OCGA § 9-11-9.1. “We [have construed] OCGA § 9-11-9.1 as establishing an ‘exception to the general liberality of pleading permitted under (the Civil Practice Act, . . .),’ [cit.], by requiring when a malpractice suit is instituted ... an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant. . . . The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed. . . .” 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989). Our Supreme Court has held that the “ ‘affidavit should be construed most favorably to the plaintiff and all doubts . . . resolved in plaintiff’s favor . . .’so long as such construction does not detract from the purpose of . . . reducing the number of frivolous malpractice suits. Gadd v. Wilson &c., 262 Ga. 234, 235 (416 SE2d 285) (1992).” Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233) (1994).

Decided November 22, 1994

Reconsideration denied December 13, 1994

Fred Raskin, pro se.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., David G. Goodchild, for appellee.

Raskin correctly argues that we have allowed an expert’s deposition from an original malpractice action to be incorporated into the complaint of the renewed action because this “complied with the spirit, if not the letter, of OCGA § 9-11-9.1.” Hosp. Auth. of Fulton County v. McDaniel, 192 Ga. App. 398 (385 SE2d 8) (1989). Here, Raskin has clearly attempted such compliance. Moreover, given Dr. Morgan’s testimony that Raskin’s doctor should have immediately hospitalized him when he made the death threats against his wife and warned Mrs. Raskin as well as the fact that Dr. Morgan gave the factual basis for this opinion, it is likely Raskin’s complaint against Wallace is not frivolous.

Nonetheless, the statute imposes an initial pleading requirement that the affidavit filed with the complaint be that of an “expert competent to testify.” Moore and Kalish, supra. While.the portions of the criminal transcript Raskin filed clearly show that Dr. Morgan was a Board certified, highly trained psychiatrist who was competent to testify, Raskin was not. Nor can we say that attempting to incorporate isolated pages of an uncertified trial transcript from a separate action in which the defendant’s psychological state, not the physician’s alleged negligence, was at issue is sufficient to constitute an affidavit as was the deposition in McDaniel, supra. Therefore, the trial court did not err in dismissing Raskin’s complaint.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A94A2016.
    ABBOTT v. THE STATE.
    (451 SE2d 500)
    Decided November 29, 1994
    Reconsideration denied December 13, 1994.

      Bates, Kelehear, Starr & Toland, James Toland, Jr., for appellant.

      Jack O. Partain III, District Attorney, Susan Franklin, Assistant District Attorney, for appellee.
   Blackburn, Judge.

Following a trial by jury, the appellant, Eric Labronz Abbott, was found guilty of one count of robbery by taking money from the person of another. On appeal, Abbott asserts that the trial court erred by failing to grant his motion for a directed verdict and new trial in that the evidence was insufficient to support the verdict. We disagree.

The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

The victim, a pedestrian, testified that he was surrounded by four men who had initially come to his attention as they taunted him from a passing car. The men closed in on him, striking him and eventually knocking him to the ground, dislodging his wallet as he went down. One of the assailants picked up the wallet and left with two of the others counting the money. An eyewitness testified that all four men participated in the attack while yelling “Get his money[;] get his money.” Further, in a custodial statement received in evidence without objection, Abbott admitted that he was with the three other men when the attack and robbery occurred and that he fled with them.

We have reviewed all evidence of record and conclude that the trial court was authorized under the standard of Jackson, supra, to find Abbott guilty beyond a reasonable doubt of the offense charged.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2220, A94A2221.
    DUTTON et al. v. GEORGIA ASSOCIATED GENERAL CONTRACTOR SELF-INSURERS TRUST FUND; and vice versa.
    (451 SE2d 504)
   Blackburn, Judge.

Plaintiffs Dutton, husband and wife, appeal the trial court’s dismissal of their conspiratorial tort action against defendants/appellees (employer, workers’ compensation insurers and claims agents) for their outrageous, wilful and wanton acts in carrying out their scheme to deprive Dutton of medical treatment and benefits arising out of the handling of a workers’ compensation claim, and in dismissing Dutton’s wife’s loss of consortium claim. Defendant/cross-appellant Georgia General Contractor Self-Insurers Trust Fund (Fund) appeals the trial court’s dismissal of its subrogation counterclaim.

On May 29, 1990, Dutton was injured during the course of his employment with Frontier Contracting Company, Inc. (Frontier). The record reflects that the injury occurred when an employee of Chambers of Georgia, Inc. (Chambers), acting within the scope of his employment, caused a dumpster to slide into Dutton, pinning him against a wall.

Shortly after the accident, the Fund, acting as the workers’ compensation insurer for Frontier, began providing workers’ compensation benefits to Dutton, including payments for medical care. The Fund paid all workers’ compensation benefits which were owed Dutton through November 1991; however, beginning on or about December 1, 1991, the Fund, questioning its obligation to pay certain medical bills and bills for an automatic transmission rental car, discontinued payment thereon.

The Duttons filed a tort action against the tortfeasor which was settled on September 12, 1992. They also brought the subject action in the State Court of Fulton County for damages, including workers’ compensation benefits which the Fund had elected not to pay, damages for further injuries Dutton sustained as a result of the non-payment of such bills, punitive damages and damages to Dutton’s wife for loss of consortium.

The Fund pled the “exclusive remedy” defense pursuant to OCGA § 34-9-1 et seq., and asserted a subrogation lien counterclaim equivalent to workers’ compensation benefits paid to Dutton for which he had otherwise been compensated pursuant to OCGA § 34-9-11.1.

Case No. A94A2220

The Duttons first contend that the court erred in granting appellees’ motions to dismiss the complaint or alternatively for judgment on the pleadings. The Duttons argue that they are entitled to a common-law cause of action in tort citing Jim Walter Homes v. Roberts, 196 Ga. App. 618, 621 (396 SE2d 787) (1990).

In Jim Walter Homes, we held that “an intentional physical injury resulting from . . . refusal to authorize necessary treatment, rather than an intentional financial injury resulting from a delay in paying workers’ compensation benefits . . . sets forth a common law cause of action which the trial court had jurisdiction to decide.” (Citations and punctuation omitted; emphasis supplied.) Id. Jim Walter Homes involved a default judgment where the allegations of the complaint were established as fact, including the fact that refusal to authorize necessary medical treatment and efforts to discourage the claimant from determining the full scope of her injuries, caused physical injury beyond that which had been the basis of her original workers’ compensation claim. Id. at 620. Because of defendant’s default, these facts were established as a matter of law.

OCGA § 34-9-11 (a) pertinently provides that “[t]he rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death.” Where the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against the employer. See Aetna Cas. &c. Co. v. Davis, 253 Ga. 376, 377 (320 SE2d 368) (1984); Bright v. Nimmo, 253 Ga. 378, 381 (320 SE2d 365) (1984). Further, “the intentional delay of workers’ compensation benefits does not give rise to an independent cause of action against the employer or its insurer where penalties for such delay are provided by the act.” Id. All refusals to pay are intentional acts and the wrongful refusal to pay and remedy therefore are provided for by the Georgia Workers’ Compensation Act. This case is controlled by Bright v. Nimmo, id. The trial court properly granted the motions to dismiss the complaint or alternatively for judgment on the pleadings.

Case No. A94A2221

In this case, the Fund appeals the trial court’s order granting the Duttons’ motion to dismiss its counterclaim. In its counterclaim, the Fund sought subrogation of the money Dutton received as a result of the settlement of his action against the tortfeasors.

In Maryland Cas. Ins. Co. v. Glomski, 210 Ga. App. 759, 761 (437 SE2d 616) (1993), this court determined that OCGA § 34-9-11.1 did not apply retroactively. Employers and their insurers have a right to be subrogated to rights of workers’ compensation claimants only for injuries occurring on or after OCGA § 34-9-11.1’s effective date, July 1, 1992. Id. Dutton’s injury predated the effective date of OCGA § 34-9-11.1 and no subordination was authorized. We affirm the trial court’s holding.

Decided November 30, 1994

Reconsideration denied December 13, 1994

Charles E. Moore, Jr., Kenneth L. Shigley, for appellants.

Rogers & Hardin, Ben A. Stone, Dan F. Laney III, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2634.
    GWINNETT COUNTY BOARD OF TAX ASSESSORS v. APAC-GEORGIA, INC.
    (451 SE2d 798)
   Blackburn, Judge.

This appeal is from the trial court’s order entered against the appellant Gwinnett County Board of Tax Assessors (Board of Tax Assessors). The trial court affirmed the decision of the Gwinnett County Board of Equalization granting the appellee, APAC-GEORGIA, Inc. (APAC-GEORGIA), an exemption on its 1993 personal property tax return pursuant to OCGA § 50-17-29 (e).

APAC-GEORGIA is a highway construction contractor with corporate offices in Cobb and Fulton counties. In 1988, it moved certain machinery and equipment to a company property in Gwinnett County known as the Norcross Asphalt Facility in order to facilitate the delivery of asphalt to its regional state road construction projects. In tax year 1993, 37.55 percent of the asphalt produced at the property was used on APAC-GEORGIA state road projects. As a result, APACGEORGIA claimed entitlement to an exemption from the Gwinnett County ad valorem property tax in the amount of 37.55 percent of the assessed value of its asphalt production machinery and equipment.

OCGA § 50-17-29 (e) pertinently provides: “No city, county, municipality, or other political subdivision of this state shall impose any tax, assessment, levy, license fee, or other fee upon any contractors or subcontractors as a condition to or as a result of the performance of a contract, work, or services by such contractors or subcontractors in connection with any project being constructed, repaired, remodeled, enlarged, serviced, or destroyed for, or on behalf of, the state or any of its agencies, boards, bureaus, commissions, and authorities.” We

have held that “[t]here is no lack of clarity or ambiguity in this language. It plainly prohibits the imposition of ‘any tax, assessment, levy, license fee, or other fee’ upon contractors ‘as a . . . result of the performance of a contract, work, or services ... in connection with any project being constructed (etc.) for, or on behalf of, the state or any of its agencies.’ ” Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106, 107 (410 SE2d 446) (1991). See also Collins v. Lunda Constr. Co., 214 Ga. App. 512, 513 (448 SE2d 236) (1994). Moreover, in Lunda Constr. Co. v. Clayton County, we recognized that a tax, not inclusive of the contract price of a state construction project, might be imposed upon property in a county to the extent that it was not present “ ‘as a condition to or the result of the performance’ [OCGA § 50-17-29 (e)] of a state construction project.” Id. at 108.

The Board of Tax Assessors contends that the trial court erred in exempting APAC-GEORGIA from Gwinnett County’s ad valorem property tax because APAC-GEORGIA failed to establish that its property was directly and exclusively used in the performance of State road construction projects. In this regard, the Board argues that our decision in Gainesville Asphalt v. Hall County, 214 Ga. App. 679 (448 SE2d 721) (1994), mandates that the taxpayer establish that its property was exclusively used in the performance of state contracts to qualify for the exemption. The Board also argues the religious and charitable exemption statute, OCGA § 48-5-41 and precedent interpreting it, for the proposition that the property tax exemption should be disallowed unless the property was exclusively used in state projects. Finally, it argues that the exemption cannot be apportioned pro rata because of the “exclusive use” requirement.

In Lunda Constr. Co. v. Clayton County, we specifically contemplated potential tax liability for property uses not associated with the performance of state contracts. Id. at 108. In doing so, we rejected a requirement for exclusive or primary use and recognized a tax exemption for contractor property used “as a condition to or the result of the performance of” state projects to the degree so used. Id. Authority to apportion tax liability pro rata in consonance therewith was implied. Lastly, in deciding Gainesville Asphalt, we distinguished Lunda Constr. Co. v. Clayton County in that the contractor’s property would not have been in Clayton County “but for the state project” and the contractor was a non-resident. Gainesville Asphalt, supra. The instant case is distinguishable from Gainesville Asphalt in the same sense.

The extent to which APAC-GEORGIA’s machinery and equipment were used in state projects in tax year 1993 is undisputed in the record. Likewise, it is undisputed below that APAC-GEORGIA was not a resident of Gwinnett County, and that it would not have located its property in Gwinnett County, nor continued to locate it there, but for state projects. Accordingly, the ad valorem tax exemption pursuant to OCGA § 50-17-29 (e) was properly granted below.

Decided November 28, 1994

Reconsideration denied December 13, 1994

Caryl B. Sumner, John E. Underwood, Sr., Frederick D. Burkey, Karen G. Thomas, for appellant.

Scoggins, Ivy & Goodman, Charles H. Ivy, William R. Buzo, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       The trial court denied the County Board of Tax Assessors’ cross-motion for summary judgment and granted APAC-GEORGIA’s motion for summary judgment.

       In granting APAC-GEORGIA the exemption, the Board of Equalization overruled the Gwinnett County Board of Tax Assessors’ decision denying it.


text:
    A94A2662.
    SEWELL v. DIXIE REGION SPORTS CAR CLUB OF AMERICA, INC.
    (451 SE2d 489)
   Blackburn, Judge.

Charlene P. Sewell, individually and as personal representative of the estate of Cecil L. Sewell, deceased, appeals the trial court’s order granting Dixie Region Sports Car Club of America, Inc.’s (Dixie Region) motion for summary judgment. Sewell brought the underlying wrongful death and loss of consortium action to recover damages incurred as a result of the death of her husband.

The undisputed facts show that Sewell and her husband were at a Dixie Region Solo II event at Bainbridge Industrial Airport to watch their son drive in the event. As the decedent was videotaping his son’s performance, he was struck by a vehicle whose driver had lost control while participating in the event. Prior to the event, the decedent was told not to park in the area where he was eventually struck and killed. As the decedent attempted to park his car in that area, Michael Wright, told him, “We don’t want anybody in this area.” Furthermore, the decedent signed a release and waiver in which he assumed full responsibility for risk of bodily injury or death “while in or upon the RESTRICTED AREA, and/or while . . . observing ... or for any purpose participating in such event.” The restricted area was defined as “the area to which admission for the general public is prohibited, including but not limited to the PIT AREAS and racing surface, including walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place.” The decedent acknowledged “that the activities of the event [were] very dangerous and involve [d] the risk of serious injury and/or death and/or property damage.”

1. Sewell alleged Dixie Region was grossly negligent and reckless in the maintenance and operation of its race track, thereby causing her husband’s death. Specifically, Sewell contends that Dixie Region was grossly negligent in that there was wet grass and mud adjacent to the course, there was considerable amounts of loose gravel on or adjacent to the course, there were no barriers between the course and the areas where spectators could view the event, there was nothing designating viewing areas or off-limit areas, there was insufficient crowd control, there were no warning signs posted, and two cars were allowed to negotiate the course at the same time.

Dixie Region asserts that the decedent assumed the risk of his actions. “The elements of assumption of risk are: (1) a hazard or danger which is inconsistent with the safety of the invitee, (2) the invitee must know and appreciate the danger, and (3) there must be an acquiescence or willingness on the part of the invitees to proceed in spite of the danger. [Cits.]” Fagan v. Atnalta, Inc., 189 Ga. App. 460, 461 (376 SE2d 204) (1988). “[Plaintiff’s assumption of the risk will bar his action even though there was wilful and wanton misconduct on defendant’s part. [Cit.]” Newman v. Collins, 186 Ga. App. 595, 596 (367 SE2d 866) (1988).

Sewell argues that the doctrine of assumption of the risk does not apply herein because Sewell neither expressly nor impliedly assumed the risk of his injuries. However, “[i]n the absence of anything to the contrary, every adult is presumed to possess such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious danger.” (Citation and punctuation omitted.) Fagan, supra at 461. The decedent had attended approximately twelve Solo II events, and one of those events was also located at the Bainbridge Industrial Airport. Sewell deposed that while attending one such previous event with her husband she witnessed her son’s car spin out momentarily while trying to negotiate a slalom or turn. The decedent also acknowledged on the release that the activities of the event were dangerous. Furthermore, despite being told to leave the area and directed toward the area for spectators by another driver, the decedent returned to the area where he was struck.

“That which a plaintiff may not do without barring himself from recovery is to accept a risk so obvious that taking it amounts to failure to exercise ordinary care for his own safety, or recklessly to test an observed and clearly obvious peril. A person cannot undertake to do an obviously dangerous thing without himself being guilty of such lack of due care for his own safety as to bar him from recovery if he is injured.” (Citations and punctuation omitted.) Id. at 461. See also Tatum v. Clemones, 105 Ga. App. 221, 225 (124 SE2d 425) (1962).

Decided November 29, 1994

Reconsideration denied December 13, 1994.

Porter, Lehman & Chason, Thomas L. Lehman, for appellant.

Lord, Bissell & Brook, J. Robert Persons, Corliss L. Worford, for appellee.

2. Sewell’s loss of consortium claim is dependent on her husband’s right to recover against Dixie Region, and because her husband assumed the risk of his actions, he cannot recover, and, therefore, the loss of consortium claim must also fail. See Lovelace v. Figure Salon, 179 Ga. App. 51 (345 SE2d 139) (1986).

3. Our holding in Division 1 renders Sewell’s additional enumeration of error moot.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       A Solo II event is a non-speed driving skill contest in which an amateur driver navigates a course delineated by cones or pylons. They are run on short courses that emphasize car handling and agility rather than speed or power.

       Both parties agree that under Georgia law, a release does not bar a claim for gross negligence. See Wade v. Watson, 527 FSupp. 1049 (N.D. Ga. 1981).


text:
    A94A2742.
    In re ESTATE OF ERNEST LAMAR ADAMSON, JR.
    (451 SE2d 501)
   Blackburn, Judge.

Ida Stanley Adamson, decedent’s widow, appeals the probate court’s order, dated July 12, 1994, finding her in contempt for failing to give possession of certain personal property to the executor of the Estate of Ernest Lamar Adamson, Jr., in compliance with the court’s order dated February 21, 1994.

1. Adamson contends the personal property referenced in the probate court’s February order was not property of the estate because she had an ownership interest therein. Adamson argues that as the probate court’s February order was void because the probate court is without jurisdiction to decide matters of title to personal or real property, the court erred in finding her in contempt of such void order. We agree.

In Georgia, it is well-settled that probate courts do not have jurisdiction to adjudicate conflicting claims of title to real or personal property. Ga. Const. 1983, Art. VI, Sec. III, Par. I; OCGA § 15-9-30 et seq.; Dix v. Dix, 132 Ga. 630 (64 SE 790) (1909); Johnson v. Johnson, 199 Ga. App. 549 (1) (405 SE2d 544) (1991). The executor maintains that the trial court did not decide matters of title, but merely provided him with possession of the property as allowed by OCGA § 53-4-10. The executor’s position begs the question. OCGA § 53-4-10 allows an executor to “recover possession of any part of the estate from the heirs at law.” Only property owned by the decedent becomes property of the estate which the executor or administrator has a right to possess. OCGA § 53-4-8. Therefore, the probate court was without authority to give the executor possession of property unless such property was owned by the decedent.

Decided November 30, 1994

Reconsideration denied December 13, 1994

John L. Watson, Jr., for appellant.

Wm. Mark Amos, Ted N. Echols, for appellee.

In the present case, Adamson has asserted an ownership interest in the property sought by the executor. The two vehicles sought by the executor are titled in the name of the decedent. However, “[b]y being only prima facie evidence of [title], it can be contradicted by other evidence.” (Citation and punctuation omitted.) Wielgorecki v. White, 133 Ga. App. 834, 838 (212 SE2d 480) (1975). See generally State of Ga. v. Sewell, 155 Ga. App. 734 (2) (272 SE2d 514) (1980).

As the probate court is without jurisdiction to determine matters respecting title to personal property, this issue must be decided in the proper forum in order to confer authority upon the probate court to determine whether such property belongs in the estate, and therefore, in the executor’s possession.

2. An order of contempt cannot be based on noncompliance with a void order. “Where the pleadings show on their face that the court is without jurisdiction of the subject-matter . . . any preliminary order or final judgment rendered therein is void; and disobedience of a void mandate, order, or judgment, ... is not contempt of court.” John Hancock &c. Ins. Co. v. Baskin, 179 Ga. 86 (3) (175 SE 251) (1934). See also Tillotson v. Tillotson, 227 Ga. 593 (4) (182 SE2d 114) (1971).

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2800.
    EASON v. THE STATE.
    (451 SE2d 820)
   Blackburn, Judge.

James Eason appeals his conviction by a jury of one count of child molestation and one count of sodomy.

1. Eason contends the trial court erred in refusing to allow him to introduce testimony regarding the victim’s accusations of molestation performed by another individual on a prior occasion. Eason sought to introduce such testimony to impeach the victim’s credibility by showing that there was a reasonable probability that the prior accusation was false.

“In Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), the Supreme Court held that the rape-shield law [did] not prohibit evidence of prior false allegations of sexual misconduct made by the victim against men other than the defendant. However, before such evidence may be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.” Allen v. State, 210 Ga. App. 447, 448 (436 SE2d 559) (1993). See also Strickland v. State, 205 Ga. App. 473 (422 SE2d 312) (1992).

In the present case, during the hearing on the admissibility of the victim’s prior accusations, the victim testified that a neighbor boy about 15 or 16 years of age touched her vaginal area through her clothes. Eason also introduced the testimony of the victim’s mother and the investigating police officer in an attempt to show a reasonable probability that the prior allegations were false. However, the falsity of the report was supported only by a lack of physical evidence that the molestation occurred. Eason did not produce the alleged molester to testify as to his involvement with the victim; therefore, the victim’s unrecanted accusation was not rebutted. The trial court determined that Eason failed to make a sufficient showing of falsity. We find that this determination was supported by evidence and, therefore, will not be overturned on appeal.

2. Eason enumerates as error the trial court’s refusal to allow him an in-camera hearing to determine whether proffered testimony concerning the victim’s past sexual behavior was admissible for the purpose of impeaching the victim’s credibility. However, the trial court did allow Eason’s counsel to state in his place the substance of the testimony Eason sought to introduce. Furthermore, “[i]n a child molestation case evidence as to the victim’s reputation for nonchastity is not admissible. Nor may evidence be admitted to discredit the victim by showing her preoccupation with sex.” (Citations and punctuation omitted.) Woods v. State, 187 Ga. App. 105 (1) (369 SE2d 353) (1988).

3. During the pre-sentencing hearing, the State requested that the trial court consider Eason’s 1983 conviction for a drug offense and 1985 conviction for driving under the influence. OCGA § 17-10-2 (a) allows the trial court to consider “only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial.” On appeal, Eason contends that the State failed to provide him with the required notice prior to introducing his record of criminal convictions. The State argues Eason waived any error by his failure to object at trial.

The Georgia Supreme Court has previously held that the failure to follow the mandates of OCGA § 17-10-2 (a) cannot be waived by the failure of the parties to object. Sinkfield v. State, 262 Ga. 239 (1) (416 SE2d 288) (1992). “All the statute requires is clear notice to an accused of all previous convictions that the state intends to introduce at trial, so as to allow a defendant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” (Citations and punctuation omitted.) Bass v. State, 208 Ga. App. 859, 860 (432 SE2d 602) (1993).

The State’s failure to provide Eason with notice requires that Ea-son’s sentence be vacated and that the case be remanded for resentencing in compliance with OCGA § 17-10-2 (d). Sinkfield, supra at 240.

4. The trial court improperly considered evidence of any convictions for which Eason was not provided with notice prior to trial pursuant to OCGA § 17-10-2 (a). See Division 3. Therefore, we need not address whether the trial court properly considered Eason’s first offender record in aggravation of punishment as this prior conviction was improperly considered.

5. Eason contends the trial court erred by imposing a $5,000 fine as a condition of probation in addition to incarceration. OCGA § 17-10-8 allows the judge to impose a fine in any case where probation is authorized and the fine is imposed as a condition of an actual sentence of probation. In the present case, Eason was sentenced to twenty years on each count, was required to serve eight years in prison with the remainder to be served on probation, and required to pay $5,000. As the trial court did award probation, a fine was authorized. See Eason v. State, 194 Ga. App. 678 (4) (391 SE2d 427) reversed on other grounds, 260 Ga. 445 (396 SE2d 492) (1990). Eason’s citations are distinguishable in that probation was not awarded therein. See Wood v. State, 204 Ga. App. 467 (419 SE2d 534) (1992); Hendrix v. State, 199 Ga. App. 599 (405 SE2d 576) (1991); Young v. State, 163 Ga. App. 507 (295 SE2d 175) (1982).

6. Eason contends the trial court erred in imposing the fine without first determining his ability to pay. We agree. See Eason, supra. Upon remand, the trial court is instructed to conduct a hearing in accordance with Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983). See Gaither v. Inman, 253 Ga. 484 (322 SE2d 242) (1984).

7. In his seventh enumeration of error, Eason contends the trial court erred in allowing the State to introduce a victim impact statement without providing him with a copy within a reasonable amount of time prior to sentencing as required by OCGA § 17-10-1.1 (e). However, subsection (g) of OCGA § 17-10-1.1 provides that “[n]o sentence shall be invalidated because of failure to comply with the provisions of this Code section.” Furthermore, this enumeration is rendered moot in light of our disposition above.

Decided December 2, 1994

Reconsideration denied December 13, 1994

Burkhalter & Stephens, Terri B. Stephens, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

8. In his last enumeration of error, Eason contends the evidence was insufficient to support his conviction. The victim testified that Eason fondled her breasts, exposed his sex organ, and performed an act of oral sex on her. Eason testified in his own defense and denied that he performed the acts alleged.

“It is also well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.” (Citation and punctuation omitted.) Clay v. State 214 Ga. App. 160, 161 (447 SE2d 156) (1994). Having viewed the evidence in the light most favorable to the jury verdict, we find it sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment of conviction affirmed. Sentence reversed and remanded with direction.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2139.
    SHUTT v. THE STATE.
    (451 SE2d 530)
   Blackburn, Judge.

Mark Anthony Shutt was indicted on charges of armed robbery and kidnapping with bodily injury. He was convicted by a jury of armed robbery, and found not guilty of kidnapping with bodily injury. On appeal, he asserts several enumerations of error.

1. In his first enumeration of error, Shutt contends that the trial court erred in failing to charge the jury on circumstantial evidence. Shutt maintains that the State’s evidence was partially circumstantial, and that he requested such a charge. We agree with Shutt that upon a proper request, the trial court should have given a circumstantial evidence charge. See Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994). However, we find that Shutt did not present a request for a circumstantial evidence charge (see OCGA § 24-4-6), but did request a “two theories” charge which has been disapproved by this court. See Matthews v. State, 214 Ga. App. 104 (2) (446 SE2d 790) (1994); Johnson v. State, 210 Ga. App. 99 (2) (435 SE2d 458) (1993) (circumstantial evidence charge and two theories charge discussed under separate enumerations). Therefore, as Shutt failed to make a proper request for the circumstantial evidence charge, the trial court did not err in failing to charge OCGA § 24-4-6.

2. Shutt contends the trial court erred in its charge on burden of proof. However, the charge given does not constitute reversible error. See Kidwell v. State, 264 Ga. 427 (12) (444 SE2d 789) (1994).

3. In his third enumeration of error, Shutt contends that the trial court erred in allowing the State to present evidence of an out-of-state similar transaction in that it violated the full faith and credit clause of the United States Constitution. Shutt’s failure to raise this argument below is fatal to his contention on appeal. “In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.” (Citations, punctuation and emphasis omitted.) Hunter v. State, 202 Ga. App. 195, 197 (413 SE2d 526) (1991).

4. Shutt contends the trial court erred in allowing the introduction of evidence regarding his alcohol and drug use and inconsistencies in his statement to a Tennessee detective regarding the similar transaction. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Yelverton v. State, 199 Ga. App. 41, 43-44 (403 SE2d 816) (1991). Shutt’s failure to raise this argument below precludes us from reaching it on appeal.

5. Shutt asserts the trial court erred by failing to limit its charge on similar transactions to the specific purpose for which it was admitted. The trial court charged the jury that “[t]he defendant is on trial for the particular offenses charged in the bill of indictment that you will have out with you for your consideration and on no other charge or charges. He is not on trial on account of any other alleged offense or offenses, and any evidence in this case with reference to any other alleged offense or offenses, if any, is admitted for the purpose of your consideration, solely and only under the provision of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, and course of conduct, identity or other matters dependent upon a person’s state of mind are involved as material elements in the offense for which he is on trial. Evidence of the defendant’s conduct with reference to similar transactions about the same time is admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved, if you think it does so illustrate it, and for that purpose alone. You are not to consider it for any other purpose.” (Emphasis supplied.)

Shutt relies on dicta contained in Stephan v. State, 205 Ga. App. 241, 244 (422 SE2d 25) (1992), to support his enumeration of error. Although the court in Stephan, did disapprove of the charge given herein, that case was reversed due to allowance of similar transaction evidence without the required ten-day notice. Id. at 244. However, we must view the trial court’s charge as a whole, and in Hilliard v. State, 211 Ga. App. 842, 843 (440 SE2d 729) (1994), we specifically approved of such a charge where the trial court limited the use of the similar transaction evidence to the stated purpose. Accordingly, we find no error in the trial court’s charge herein.

6. Shutt enumerates as error the State’s closing argument in which it misled the jury on the deal that the State had offered the co-defendant, Thomas Weber, to testify. During its closing argument, the State argued, “And this lenient treatment that we’ve given Mr. Weber is another thing I don’t understand. He’s allowed to plead guilty, and if he testifies truthfully, he receives a life sentence. Do you think there’s a fine anywhere in the state to do a life sentence in the Georgia Prison System? There’s nothing more stringent — I mean, the maximum sentence for these crimes that he has pled guilty and received a sentence on is life. The maximum sentence is life, and that’s what he received when he pled. . . . Now, I guess if he had two lifes, (sic) it would make a big difference if he had a consecutive life. I guess that would make a big difference. But he’s only got one, and he pled guilty to life.” Shutt’s counsel objected on the ground that Weber could have received more than one life sentence, and that the State was misleading the jury as to the deal given Weber. In Shutt’s closing argument, his counsel argued that Weber could have been convicted of consecutive life sentences, but that the State’s deal allowed him to get less.

A concealed promise of leniency may require a new trial. See Allen v. State, 128 Ga. App. 361, 364 (196 SE2d 660) (1973). However, in the present case, the deal was not concealed as Shutt’s counsel argued it to impeach Weber’s credibility as a witness. Furthermore, Shutt was found not guilty of the kidnapping with bodily injury charge, of which Weber’s testimony implicated Shutt.

7. Shutt contends the trial court erred in failing to find that the State committed a Brady violation. Shutt argues that the State failed to provide him with all exculpatory information prior to trial. Specifically, Shutt asserts that he was entitled to evidence of the co-defendant’s mental condition and information regarding a line-up in the similar transaction where the witness did not positively identify him.

“Brady is not violated when the Brady material is available to defendants during trial. Nor is there a Brady violation where information sought becomes available to the accused at trial. Appellant must show that earlier disclosure would have benefited the defense and that the delayed disclosure deprived him of a fair trial.” (Citations and punctuation omitted.) Dennard v. State, 263 Ga. 453, 454 (435 SE2d 26) (1993).

Decided December 13, 1994.

David Markus, for appellant.

Thomas J. Charron, District Attorney, Donald T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Pretermitting whether the information sought by Shutt was exculpatory, he has failed to show that his case was prejudiced by the disclosure of the information during trial. Therefore, the trial court did not err in finding no Brady violation. See Wallin v. State, 248 Ga. 29 (6) (279 SE2d 687) (1981).

8. We need not address Shutt’s eighth enumeration of error as it was expressly abandoned.

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.


text:
    A94A2249.
    DIAL v. BENT TREE NATIONAL BANK.
    (451 SE2d 533)
   Smith, Judge.

Bent Tree National Bank obtained a judgment in the State of Texas against Thomas O’Connell, the father of appellant Pattilyn Dial. Believing that O’Connell had concealed assets by transfer to his daughter, Bent Tree obtained a commission to take Dial’s deposition and served her with a subpoena duces tecum in Fulton County, Georgia. At the deposition, Dial refused to answer any questions on the grounds of Fifth Amendment privilege, other than giving her name and address. Bent Tree’s counsel recessed the deposition and moved to compel Dial’s testimony.

The trial court ordered Dial to appear at a rescheduled deposition and give full and complete answers to specific questions enumerated in the order. The order stated that failure on Dial’s part to answer the enumerated questions would constitute contempt of court, and imposed sanctions in connection with the motion to compel. Dial filed a notice of appeal from that order, but did not obtain a certificate of immediate review or file an application for interlocutory appeal.

Decided December 13, 1994.

Garland, Samuel & Loeb, Edward T. M. Garland, Patrick J. Geheren, for appellant.

Branch, Pike & Ganz, Barry G. Roberts, James H. Rollins, Michael S. Welsh, for appellee.

This case is controlled by Cornelius v. Finley, 204 Ga. App. 299 (418 SE2d 815) (1992), which also involved post-judgment discovery. Cornelius refused to answer post-judgment interrogatories, the trial court ordered a response within ten days, and Cornelius filed a notice of appeal from that order. This court applied to post-judgment discovery the general rule that orders regarding discovery during the pendency of litigation must be appealed under the application procedures outlined in OCGA § 5-6-34 (b). 204 Ga. App. at 300-301. This is true regardless of the imposition of sanctions below. American Express Co. v. Yondorf, 169 Ga. App. 498 (313 SE2d 756) (1984).

Dial is likewise bound by the interlocutory appeal procedures of OCGA § 5-6-34 (b). As in Cornelius, the trial court did not find Dial in contempt and simply ordered her to respond to discovery. This is not a final order for purposes of OCGA § 5-6-34 (a). Depending on Dial’s response, “the order may, or may not, be the last order entered in the case. . . . From the record before us, it appears that the disputed discovery remains unanswered, and therefore, matters remain pending in the case.” 204 Ga. App. at 300-301. This appeal must be dismissed.

Appeal dismissed.

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


text:
    A94A2381.
    AMERICAN CAR RENTALS, INC. v. WALDEN LEASING, INC.
    (451 SE2d 537)
   Blackburn, Judge.

Appellant American Car Rentals, Inc. (American) appeals the order of the trial court granting appellee Walden Leasing, Inc.’s (Walden) motion to dismiss counterclaim, or in the alternative, motion in limine, and ordering that Walden’s suit against American be submitted to and determined by arbitration.

On January 15, 1993, Walden brought suit against American for failure to make timely payments for vehicles American leased from Walden pursuant to a motor vehicle lease agreement the two companies entered into two years earlier. Walden’s complaint sought all unpaid amounts under the lease agreement and the vehicle lease orders executed thereunder as well as reasonable costs and attorney fees. In its answer, American did not dispute Walden’s allegation that it failed to make timely payments for the vehicles it had leased. Rather, by counterclaim and the consolidated pre-trial order, American sought damages for lost profits, past and future, pertinently asserting that Walden breached certain oral contracts entered into between the parties after the formation of the lease agreement and the vehicle lease orders. Walden, in turn, moved to dismiss the counterclaim because it was exclusively for lost profits, damages expressly disallowed by the lease agreement.

American asserts that the trial court erred (1) by granting Walden’s motion to dismiss counterclaim, or, in the alternative, motion in limine, erroneously denying it damages for lost profits, and (2) by ordering binding arbitration under the lease agreement notwithstanding the election of the parties to pursue their claims at law before a jury.

Inasmuch as the trial court considered matters outside the pleadings in deciding Walden’s motion to dismiss, specifically the pre-trial order and attachment A thereto (consisting of the lease agreement and pertinent vehicle lease orders), the trial court was obligated to treat the motion as a motion for summary judgment. OCGA § 9-11-12 (b), (c). Where a motion to dismiss is thus converted to a motion for summary judgment, there must be compliance with OCGA § 9-11-56, requiring an opportunity for a hearing upon 30 days notice to the non-moving party. Charming Shoppes v. Black, 252 Ga. 207 (312 SE2d 604) (1984). In light of the foregoing, the trial court’s order, insofar as it purports to dispose of American’s counterclaim, is not presently amenable to direct appeal as a final judgment under the provisions of OCGA §§ 9-11-56 (h) and 5-6-34 (a) (1). Further, there being no certification for immediate review by the trial court of the stay order below as provided by OCGA § 5-6-34 (b), this court lacks jurisdiction to determine the validity of the trial court’s order directing the parties to submit their claims to binding arbitration under the arbitration clause of the lease agreement. See Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538) (1983); OCGA § 5-6-34 (d).

Accordingly, we vacate the trial court’s order granting the motion to dismiss the counterclaim and directing submission of the case to arbitration with stay of the judicial proceedings pending the result thereof. The case is hereby remanded to the trial court for disposition of the motion in accordance with applicable procedure, and the trial court is authorized to reenter its earlier orders and certify them, as appropriate, for immediate appeal.

Judgment vacated and remanded with direction.

Birdsong, P. J., and Ruffin, J., concur.

Decided December 13, 1994.

Evert & Weathersby, Michael N. Weathersby, for appellant.

Lamberth, Bonapfel, Cifelli, Willson & Stokes, Gary D. Stokes, Stuart F. Clayton, Jr., for appellee.


text:
    A94A2442.
    FOUNTAIN v. THE STATE.
    (451 SE2d 536)
   Blackburn, Judge.

Wesley A. Fountain appeals the trial court’s order denying his motion to set aside his conviction of driving under the influence.

The evidence in the record indicates that on March 23, 1987, a traffic citation was issued to Fountain for driving under the influence of alcohol by a Franklin County Sheriff’s officer. The citation ordered Fountain to appear in court on April 27, 1987. The disposition and sentence portion of the citation indicates that on October 13, 1989, Probate Judge Nelson Casey found Fountain guilty by court adjudication, fined Fountain $300, and suspended his driver’s license for two years as part of probation.

In his motion to set aside his conviction, Fountain asserted that he contacted the probate court which informed him that the case could be resolved by paying a $300 fine. Fountain maintained that he paid the fine and thought the matter was settled; however, after the probate court recorded the conviction for driving under the influence on October 13, 1989, Fountain was informed that his driver’s license was suspended. Fountain’s contentions are neither supported nor contradicted by the record. However, “[assertions of fact made in briefs of counsel but not supported by the trial record or transcript, as appropriate, do not constitute evidence which this court can consider on appeal.” Jones v. State, 185 Ga. App. 595 (1) (365 SE2d 153) (1988).

The record contains no transcript of any proceedings in the probate court or the superior court. Fountain argues that the record contains no evidence establishing that a guilty plea was entered, that he understood his constitutional rights, that he waived his right to a jury trial, or that an inquiry was made to determine if there was a factual basis for a guilty plea. See Smith v. State, 213 Ga. App. 536 (445 SE2d 341) (1994) (Judge Andrews concurring in judgment only). Although the superior court found the record to show that Fountain pleaded guilty, such finding is not supported by any evidence in the record. The record clearly indicates that Fountain was “court adjudicated guilty.” The record contains no evidence to dispute this finding.

“The mandate of the superior courts is to review asserted errors of law in the proceedings below under general appellate principles. [Fountain] did not show error from the record. The lack of a transcript does not result in a reversal of the conviction.” (Citation and punctuation omitted.) Gilbert v. City of Manchester, 204 Ga. App. 422, 423 (419 SE2d 487) (1992). Fountain failed to fulfill his burden to ensure the record included competent evidence to support the error he alleges on appeal. See id.

Decided December 13, 1994.

Crecelius & Crecelius, Bill W. Crecelius, Jr., for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.