author: Banke, Presiding Judge. Beasley, Judge, Birdsong, Chief Judge,

text:
    76998.
    SEATON v. AETNA CASUALTY & SURETY COMPANY.
    (376 SE2d 712)
   Banke, Presiding Judge.

The appellant sued the appellee insurer to recover no-fault benefits allegedly due her under a policy of motor vehicle accident insurance issued to a third party by the appellee. See generally OCGA § 33-34-1 et seq. In addition, she sought to recover a bad-faith penalty, punitive damages and attorney fees pursuant to OCGA § 33-34-6.

Prior to trial, the appellee sought a protective order relieving it of any obligation to produce certain discovery materials sought by the appellant. These materials evidently related to a personal injury action the appellant had filed seeking to recover damages from the driver of the insured vehicle based on the same injuries for which she sought no-fault benefits in the present case. According to the appellant, these discovery materials were relevant to her claim for a bad-faith penalty, punitive damages and attorney fees in the present case in that they would have established how long the appellee had been in possession of evidence supporting her claim for no-fault benefits.

On April 8, 1986, the trial court entered an order granting the appellee’s request for a protective order with respect to any “communications between the [appellee] and its counsel or work product of [appellee’s] attorney.” On June 10, 1986, the trial court entered a related order directing the appellee to deliver to the court for in-camera inspection all materials which it continued to withhold from the appellant on the basis of the attorney-client or work product privilege. On November 11, 1986, the court entered a third order stating that it had completed its in-camera inspection of the materials in question and had determined that, with the exception of one document which had already been served on the appellant as an attachment to a summary judgment motion, all of the materials were privileged and were not required to be produced.

The case ultimately proceeded to trial and to a resulting verdict in favor of the appellee. Judgment was entered on the verdict on November 23, 1987. On December 21, 1987, the appellant filed a notice of appeal which specified, in pertinent part, as follows: “Notice is hereby given that the plaintiff hereby appeals to the Court of Appeals from the orders of the trial court entered in the case on 4/8/86, 6/10/ 86, and 11/10/86. Final judgment was entered in the case on 11/23/ 87. ” The appellee has moved this court to dismiss the appeal on the grounds that the rulings appealed from were interlocutory in nature and were rendered moot by the subsequent verdict and judgment in its favor. Held:

1. The motion to dismiss is denied. OCGA § 5-6-48 (b) specifies three grounds upon which an appellate court may dismiss an appeal, as follows: “(1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot.” The asserted defect in the notice of appeal in this case does not cause the appeal to fall into any of these categories. Moreover, dismissal of the appeal would contravene both the letter and the spirit of OCGA § 5-6-48 (f), which provides as follows: “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” Accord Sanders v. Looney, 247 Ga. 379 (1) (276 SE2d 569) (1981); Brackett v. Allison, 119 Ga. App. 632 (1) (168 SE2d 611) (1969); Horton v. Allstate Ins. Co., 171 Ga. App. 707 (1) (320 SE2d 761) (1984).

The appellee’s reliance on Martin v. Farrington, 179 Ga. App. 227 (346 SE2d 5) (1986), as authority for a contrary conclusion is misplaced. There, we held that “[wjhere the notice of appeal specifies that the appeal is taken from an order which is not appealable and where the appeal is in fact taken from such an order, the appeal is subject to dismissal.” Id. (Emphasis supplied.) It is readily apparent that although the appeal in the present case was directed to the interlocutory orders entered in 1986, it was in fact taken from the final judgment entered on November 23, 1987, for that is the only reasonable explanation both for the appellant’s having waited until December 21, 1987, to file the appeal and for the inclusion of the statement in her notice of appeal that “the final judgment had been entered on November 23, 1987.” To take what is at most a technical inartfulness in the wording of the notice of appeal and to treat it as a jurisdictional defect requiring dismissal would be wholly incompatible with the letter and spirit of the Appellate Practice Act. Accord Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984).

We must also reject the appellee’s contention that the present appeal is subject to dismissal for mootness. The test of mootness is whether the appellant, in case of a reversal, could claim or enforce the rights insisted upon. Haley v. Bailey, 199 Ga. 486, 488 (34 SE2d 685) (1945). If the judgment in the present case were reversed on the ground that the appellant was improperly denied access to relevant discovery materials, then the appellant would be in a position to insist on those materials prior to the re-trial of the case. Therefore, the issues raised by the appeal are not moot.

2. The court’s refusal to grant access to the requested materials was, however, harmless under the circumstances of the present case. The appellant does not contend that the materials would have provided additional support for her claim for no-fault benefits. Rather, she contends that they would have supported her claim for a bad-faith penalty, attorney fees, and punitive damages by showing at what point the appellee was in possession of reasonable proof establishing her entitlement to no-fault benefits. However, the jury determined, that the appellee was not entitled to any no-fault benefits whatever. Since an insurer clearly cannot incur additional liability under OCGA § 33-34-6 for refusing to pay no-fault benefits which it does not in fact owe, it follows that if the court erred in granting the motion for protective order, that error could not have contributed to the jury’s verdict.

Judgment affirmed.

Deen, P. J., Carley and Benham, JJ., concur. Beasley, J., concurs specially. Birdsong, C. J., McMurray, P. J., Sognier and Pope, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur in the majority opinion and, with respect to Division 1, do so upon the following analysis.

Appeal may be sought from interlocutory rulings if the proper procedure is followed and the appellate court deems it wise to consider the matters raised at that interim stage rather than waiting until the case is finally concluded. OCGA § 5-6-34 (b). The complaining party may choose whether to seek such interlocutory review or abide until final judgment and then appeal of right under OCGA §§ 5-6-33 (a) (1) and 5-6-34 (a), calling into question the adverse interlocutory rulings. OCGA § 5-6-34 (d). As provided in that subsection (d), by proceeding to final judgment he does not waive a review of the interlocutory rulings, even if he does not seek a certificate from the trial judge or file an application with the appellate court. The rulings are preserved for consideration on direct appeal from the final judgment. See Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980).

Here, plaintiff elected not to interrupt the litigation and request permission of the trial court and the appellate court to review the discovery orders. Instead of incurring additional expense and delay, she chose to proceed as best she could to trial in hopes that the adverse rulings would npt affect the final outcome. When it was reached unfavorably to her, she appealed. She has no quarrel with the trial itself or with the way in which the verdict and judgment were reached, except with respect to the discovery orders insofar as they kept documents from her perusal and use as evidence. Implicitly, the rulings if wrong arguably harmed her by restricting her proof at trial, so the rulings are not moot as contended by appellee.

The notice of appeal, filed within 30 days of the judgment as required by OCGA § 5-6-38 (a), contains as its first paragraph the following: “Notice is hereby given that the Plaintiff hereby appeals to the Court of Appeals from the Orders of the Trial Court entered in the case on 4/8/86, 6/10/86 and 11/10/86. Final judgment was entered in the case on 11/23/87.”

Applying OCGA § 5-6-48 (f), especially in the spirit of OCGA § 5-6-30 and the last sentence of OCGA § 5-6-48 (d), we are bound to consider the appeal. The notice itself, the timely filing of it as relates to the entry of the judgment, the portions of the record designated by appellant to be transmitted for our consideration, and the single enumeration of error, make sufficiently clear that the appeal is technically from the final judgment and that the alleged error is that it was infected by legally defective discovery rulings. The notice itself refers to the final judgment and identifies the date of the entry. It just does not state explicitly that this is what is appealed from, but that in-artfulness does not preclude review. The wording of the notice in this regard substantially complies with OCGA § 5-6-37 and the notice is complete and proper in all other respects. Thus it differs from the type found dismissible in Ballew v. State, 225 Ga. 547 (170 SE2d 242) (1969), and belongs in the category found adequate in Sanders v. Looney, 247 Ga. 379 (1) (276 SE2d 569) (1981), and in Johnson v. Daniel, 135 Ga. App. 926 (1) (219 SE2d 579) (1975).

The mistake in wording here is similar to that made by appellant in Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984). There the Supreme Court adhered to the more liberal treatment of notices of appeal which it had adopted in light of the language of the Appellate Practice Act. It eschewed the exactitude which had been required in earlier cases such as Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436 (150 SE2d 618) (1966), which had resulted in dismissals. Instead, it expressly chose to “follow the route . . . toward less technical and more expeditious handling of cases involving minor procedural errors.” Id. at 59.

In doing so, the Supreme Court was consistent with the realistic approach, derived in obedience to Code Ann. § 6-809 (d) [OCGA § 5-6-48 (f)], which was applied in Housing Auth. of Douglas v. Marbut Co., 229 Ga. 403 (191 SE2d 785) (1972), a case decided several years after Interstate.

The same more recently evolved application must be given here, and it leads to the same result. It is “apparent,” in the word used in Housing Auth., from what appellant has written and done, that she appeals from the final judgment. The notice of appeal was “sufficient to notify the opposing party,” in the words used in Steele, supra at 6°.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.

Birdsong, Chief Judge,

dissenting.

I respectfully dissent from Division 1 of the majority opinion. I cannot agree with the conclusion that “[t]he asserted defect in the notice of appeal in this case does not cause the appeal to fall into any of’ the three bases for dismissal of an appeal under OCGA § 5-6-48 (b). Specifically, I would find that the appeal is untimely.

1. The notice of appeal states: “Notice is hereby given that the Plaintiff hereby appeals to the Court of Appeals from the Orders of the Trial Court entered in the case on 4/8/86, 6/10/86 and 11/10/86.” I am of the opinion that this appeal is from those three orders — all of which are interlocutory in nature. The majority is of the opinion that this appeal is not from the listed interlocutory orders but from the final judgment of “11/12/86.”

The majority finds OCGA § 5-6-48 (b) prohibits dismissal of this appeal because we may dismiss only: “(1) For failure to file [a] notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot.” The first basis is applicable here. Appeal is taken specifically from the trial court’s decision on three interlocutory orders. Such appeal must be made within 10 days (OCGA § 5-6-34 (b)), or can be made in conjunction with an appeal from a final judgment. Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199). No appeal was taken from the final judgment, thus the direct appeal taken in this case was not within the statutory time and not in conjunction with an appeal from the final judgment — hence, was untimely.

2. Our Code requires that “[t]he notice [of appeal] shall set forth ... a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal. . . .” OCGA § 5-6-37. I would find that the appellant has “set forth ... a concise statement of the judgment, ruling, or order entitling [him] to take an appeal. . . .’’He specifically appealed from the trial court’s ruling on the listed interlocutory orders. I have no disagreement with the majority that “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal should be considered in accordance therewith. . . .” OCGA § 5-6-48 (f). I find that the appellant has stated very clearly what order is being appealed — the notice specified only the orders of “the Trial Court entered in the case on 4/8/86, 6/10/86 and 11/10/86.” Those rulings were on interlocutory matters — and were not final judgments. The enumeration of error is just as clear. Appellant alleged: “The Trial Court erred, and abused its discretion, by granting Defendant’s Motion for Protective Order (R-87, 88) [the order of “11/10/86”] refusing to permit discovery by the Plaintiff of all documents within Defendant’s possession regarding the claims of Plaintiff. ...” Thus, appellant abandoned its claim of error as the interlocutory orders of “4/8/86” and “6/10/86” and enumerated error only as to the interlocutory order of “11/10/86” denying discovery. Appellant’s brief is equally precise and clear. It summarizes its contentions: “The issue before this Honorable Court being whether the Trial Court erred in granting Defendant’s Motion for Protective Order and in refusing to grant Plaintiff/Appellant discovery of the Defendant/Appellant’s files.” In summary, because appellant specifically appealed only from decisions on three interlocutory orders, enumerated error as to only one interlocutory order, and in the brief argued only the ruling of one interlocutory order, I cannot agree with the majority that this appeal “was in fact taken from the final judgment entered on November 23, 1987. . . .”

3. Of course, “final judgment” was mentioned in the notice of appeal: “Final Judgment was entered in the case on 11/12/87.” This poses the question of whether this singular reference to a “final judgment” is sufficient t’o signify this appeal is from the final judgment. Does the mere mention of “final judgment” negate the otherwise definite statement of appellant that this appeal is from the three listed orders and infuse life into those otherwise dormant rulings on which time has expired to appeal? I would follow the case precedent of this Court and the Supreme Court in making this decision.

Similar references to final judgment in a notice of appeal have not sufficed to show compliance with appellate procedural statutes. In Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436 (150 SE2d 618), the Court of Appeals had certified a question to the Supreme Court on the sufficiency of a notice of appeal, and we were instructed: “Indeed, this court held in Gibson v. Hodges, 221 Ga. 779 (147 SE2d 329), that an appeal was fatally defective when it failed to designate ‘any appealable judgment or order as the ruling that entitled the appellant to take an appeal.’ The Court of Appeals can not know the appellant’s intent other than he expressed it when he said the appeal was from a verdict •. . . With all the court’s sympathy for lawyers and litigants, it can not constitutionally provide the procedure of appeals nor engage in the practice of law by directing the judgments or orders on appeal when the appellant has not chosen to appeal therefrom. Where there is only an appeal from a jury verdict, there is nothing to review, and the Court of Appeals has no jurisdiction. . . .”

The Supreme Court followed the above decision with Williams v. Keebler, 222 Ga. 437 (150 SE2d 674), in which an appeal was taken “from the verdict entered in said action on February 19, 1965. Motion to set aside the verdict and judgment was filed and overruled on November 6, 1965.” The facts in Williams are very similar to those in the instant appeal in which the appeal is taken “from” three listed interlocutory orders and the notice parenthetically cites that judgment was entered at a later date. In Williams, supra, the Supreme Court held that a verdict was not an appealable judgment and “the mere mention in the notice of appeal of the judgment overruling the motion to set aside the verdict and judgment does not constitute an appeal from a final judgment so as to satisfy the requirements of the Appellate Practice Act. The omission in the notice of appeal to designate any appealable judgment or order as the ruling that entitles the appellant to take the appeal is fatal.” Id. at 438. A later decision, Davis v. Davis, 224 Ga. 740 (164 SE2d 816) tracks Williams, supra, in which it was held: “Since the appeal was taken from the verdict and from a ruling which was not an appealable judgment, the mere mention in the notice of appeal of the judgment overruling the motion for new trial ‘does not constitute an appeal from a final judgment so as to satisfy the requirements of the Appellate Practice Act.” Id. at 741.

Rulings of this Court are consistent with those of the Supreme Court. In Ruth v. Kennedy, 117 Ga. App. 632 (161 SE2d 410), we held that where the “notice of appeal recites that the plaintiff ‘hereby appeals to the Court of Appeals from the order entered on her motion to purge the jury’ and that thereafter the case proceeded to verdict and final judgment” that “[t]he fact that an appealable judgment is shown to exist, or that the antecedent ruling on the motion to purge the jury would be reviewable when enumerated as error on the proper designation of an appealable judgment, does not cure the fatal defect in the notice of appeal arising from the failure to appeal from such a judgment.” We reached the same conclusion in Teppenpaw v. Blalock, 121 Ga. App. 320, 321 (2) (173 SE2d 442), aff’d 226 Ga. 619, in which the appeal was “ ‘from the verdict of the Clarke Superior Court . . . wherein the Judge . . . directed a verdict in favor of the defendant and against the plaintiff . . . [and] said directed verdict was made the judgment of the court on October 22, 1969.’ ” This Court held: “Since the appeal is ‘from the verdict,’ the mere recital that the directed verdict was made the judgment of the court ‘does not constitute an appeal from a final judgment so as to satisfy the requirements of the Appellate Practice Act.’ ”

Decided December 5, 1988.

Robert W. Raleigh, for appellant.

William L. Spearman, for appellee.

The instant notice of appeal is so similar to the cases cited above that they are controlling as to the result we should reach. As long as these controlling precedents are extant, then this Court should follow them, distinguish them, or overrule them. The bench and bar should not be forced to elect which line of conflicting cases they should follow. See also: Martin v. Farrington, 179 Ga. App. 227 (346 SE2d 5); Newman v. Steinberg, 133 Ga. App. 824 (212 SE2d 479).

Accordingly, since the notice of appeal, enumeration of errors, and brief of counsel, specifically, with certainty and with definiteness, designate an appeal only from interlocutory orders, and did not appeal from the final judgment, the appeal is untimely and we should follow the many precedents of this Court and the Supreme Court which require dismissal of the appeal. Therefore, I respectfully dissent to Division 1 of the majority opinion.

I am authorized to state that Presiding Judge McMurray, Judge Sognier and Judge Pope join in this dissent.

        Interstate was relied on as a basis for dismissal of appeal in Hurst v. Starr, 226 Ga. 42 (172 SE2d 604) (1970). Hurst in turn was the authority for requiring dismissal in Smith v. Sorrough, 226 Ga. 744 (177 SE2d 246) (1970). Both Hurst and Smith were overruled in Steele.


source: Caselaw Access Project

author: Carley, Judge. Beasley, Judge, Deen, Presiding Judge,

license: Public Domain

text:
    77095.
    HIGHTOWER v. THE STATE.
    (376 SE2d 717)
   Carley, Judge.

Appellant was tried before a jury and found guilty of one count of forcible rape and one count of statutory rape. Appellant appeals from the judgments of conviction and sentences entered on the jury’s guilty verdicts and from the denial of his motion for new trial.

1. The trial court’s asserted failure to consider and rule upon whether there was an intelligent waiver by appellant of his Miranda rights is enumerated as error.

The trial court conducted a Jackson-Denno hearing to determine the admissibility of appellant’s post-arrest statement. At the conclusion of the hearing, the trial court ruled that “the statement was voluntary and can be used in the trial of the case.” Appellant now urges on appeal that the ruling was limited to consideration of “voluntariness” under OCGA § 24-3-50, the trial court having failed to address explicitly the “voluntariness” of the statement pursuant to Miranda. However, at no point did appellant ask for a clarification of the trial court’s ruling following the Jackson-Denno hearing. The waiver-of-rights form which appellant signed at the time of his statement contained the required Miranda warnings. This signed waiver-of-rights form was introduced into evidence at the hearing. If appellant had doubts as to whether the trial court’s ruling on the admissibility of his custodial statement constituted a ruling on the satisfaction of the “voluntariness” requirement of Miranda as well as of OCGA § 24-3-50, he should have raised that issue in the trial court. “We will give no consideration to the merits of this enumeration. One cannot ignore what may be harmful error while hoping for a favorable result and then raise error when expectations prove false. [Cits.]” Bone v. State, 178 Ga. App. 802, 807 (4) (345 SE2d 46) (1986).

2. Appellant enumerates the general grounds as to his conviction on the statutory rape charge. He urges that there was insufficient evidence of penetration. However, there was evidence adduced at trial which would authorize a finding that penetration had, in fact, occurred. See Neal v. State, 152 Ga. App. 395, 396 (1) (263 SE2d 185) (1979). From the evidence produced at trial a rational trior of fact could reasonably have found appellant guilty beyond a reasonable doubt of the offense of statutory rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Runion v. State, 180 Ga. App. 440 (349 SE2d 288) (1986).

3. Although the alleged ineffective assistance of appellant’s trial counsel was not raised below, it is raised on appeal. The record shows the following: After the trial, appellant’s trial counsel filed a request to withdraw. Subsequent to the filing of his request to withdraw but prior to the trial court’s ruling thereon, appellant’s trial counsel filed a motion for new trial enumerating only the general grounds. Shortly before the scheduled hearing on appellant’s motion for new trial, the trial court granted the request of appellant’s trial counsel to withdraw and new counsel was appointed to represent appellant. No amendment to appellant’s motion for new trial was filed by appellant’s new counsel. The hearing on the unamended motion for new trial was held six days after the effective date of the withdrawal of appellant’s trial counsel. After the motion for new trial was denied, appellant’s new counsel filed a notice of appeal. Subsequent to the filing of the notice of appeal but prior to the filing of the enumerations of error, yet another counsel was appointed to represent appellant on this appeal and it is this counsel who now raises the issue of the effectiveness of appellant’s trial counsel. Appellant’s appellate counsel does express in his brief the opinion that there is no merit in the claim of ineffectiveness of trial counsel. However, regardless of his opinion as to the mer its of the claim, it is clear that the issue has been raised by appellate counsel and not merely by appellant himself. The ineffectiveness of appellant’s trial counsel is raised in the enumeration of errors filed and signed by appellant’s appellate counsel and not in a separate enumeration of errors filed and signed by appellant purporting to act pro se. Accordingly, it is appellate counsel who has raised the issue and, despite his professional opinion as to the lack of merit in the claim, it is incumbent upon this court to accept its constitutional responsibility and make its own independent determination as to the proper resolution of that issue.

In Smith v. State, 255 Ga. 654, 656 (341 SE2d 5) (1986), our Supreme Court “established the practice of remanding to the trial court the claim of ineffective assistance, when such claim was raised only on appeal. The advantage of this procedure is that the claim can be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.” Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1) (1988). However, the applicability of the rule announced in Smith was subsequently limited in Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987) and in Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). Accordingly, the issue for resolution is whether the disposition of appellant’s claim of ineffectiveness of his trial counsel is controlled by the holding in Smith or by the holdings in Thompson and Dawson.

In Thompson, the defendant obtained new counsel after his trial counsel had filed a motion for new trial. The new counsel then filed an amended motion for new trial which did not raise the issue of ineffective trial counsel. On direct appeal Thompson’s new counsel raised the issue of ineffective assistance of trial counsel for the first time. Our Supreme Court remanded the case to the trial court for consideration of the ineffective assistance claim but further held that “from the date this opinion is published in the Official Advance Sheets this court will no longer remand such cases. Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.” (Emphasis supplied.) Thompson u. State, supra at 388. It is clear that when the Supreme Court states in Thompson that it will no longer remand “such cases,” it is referring only to those cases in which new counsel has filed an amended motion for new trial which failed to raise the issue of ineffective counsel. Here, there may have been new counsel, but there was no amended motion for new trial. Accordingly, Thompson is inapplicable to the facts of the present case.

The actual relevant holding of the Supreme Court in Dawson is as follows: “Unlike Smith and Thompson, in this case the issue of ineffective assistance of trial counsel was raised in the trial court in an amended motion for new trial filed by appellate counsel. However, he did not request an evidentiary hearing on the issue, but he argued the motion by filing an extensive brief. Thus, Thompson does not control, and under the Smith rationale the case must be remanded for an evidentiary hearing. However, this Court will no longer remand such cases. . . . When appellate counsel raises the issue of ineffective assistance of counsel in an amended motion for new trial, appellate counsel must request a hearing on the issue. If no such request is made, the right to a hearing is waived. This rule will take effect the day this opinion is published in the Official Advance Sheets.” (Emphasis supplied.) Dawson v. State, supra at 381.

It is clear that when the Supreme Court states in Dawson that it will no longer remand “such cases,” it is referring to cases wherein appellate counsel has raised the issue of ineffective assistance of counsel in an amended motion for new trial and has failed to request an evidentiary hearing. In the instant case, however, the issue of ineffective assistance of counsel was first raised on appeal, and was not the subject of an amended motion for new trial. Therefore, Smith controls and this case must be remanded for an evidentiary hearing. See Lloyd v. State, supra, and Richardson v. State, 256 Ga. 746, 748 (8) (353 SE2d 342) (1987). Moreover, even if this case were within the ambit of Dawson, a remand would still be necessary because the rule announced in Dawson had not taken effect in that Dawson had not yet been published in the Official Advance Sheets at the time of the hearing on appellant’s motion for new trial. See Foote v. State, 184 Ga. App. 900 (1) (363 SE2d 180) (1987).

Accordingly, we remand the case to the trial court for a hearing on the ineffective assistance of counsel issue. See Abiff v. State, 258 Ga. 137, 139 (9) (365 SE2d 427) (1988); Richardson v. State, supra.

Judgments affirmed and case remanded with direction.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Sognier, Pope and Benham, JJ., concur. Deen, P. J, and Beasley, J., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 1 and 2 but respectfully dissent with respect to Division 3. A remand is not called for.

The majority opinion states that “it is this [current] counsel who now raises the issue of the effectiveness of appellant’s trial counsel.” In reality, counsel does not raise the issue but very carefully framed the enumeration: “Appellant urges ineffective assistance of trial counsel.” (Emphasis supplied.) This contrasts markedly from the wording of the two other enumerations, and distinction is explained.

Counsel states in the brief that he thoroughly reviewed the case and “is of the opinion that ineffective assistance of trial counsel is not a viable ground for appeal in this case.” He explains that appellant himself wants the issue raised despite counsel’s professional judgment, so he agreed to and did submit appellant’s own notes and written arguments as an incorporated attachment to the brief.

The Constitution of the State provides that: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause'in any of the courts of this state.” Ga. Const. 1983, Art. I, Sec. I, Par. XII. Where appellant has an attorney on appeal, he cannot also represent himself. See Lewis v. State, 186 Ga. App. 92 (366 SE2d 305) (1988). Where the appellant’s representative states that there is no basis for a claim of ineffective assistance of trial counsel, no issue is made for this Court to resolve.

Even if we were to recognize that such an issue was raised on appeal, remand is inappropriate. Trial counsel withdrew with the court’s permission on January 26, 1988, effective January 25. Since the motion for new trial was heard and denied on February 1, pursuant to a rule nisi for that date, defendant must have been represented at that hearing by new counsel. Such counsel did not seek to amend the motion by adding a claim of ineffective assistance of counsel, although the opportunity was presented. That was the “earliest practicable moment” it could have been raised, in the lodestar words of Smith v. State, 255 Ga. 654, 656 (341 SE2d 5) (1986).

Finally, what appellant himself complains about requires no hearing. The nature of his dissatisfaction relates mostly to trial tactics and strategy, which are not a basis for such a claim. Jones v. State, 243 Ga. 820, 830 (12) (256 SE2d 907) (1979). He also asserts that his counsel conspired through camaraderie with the prosecuting attorney to convict him, but the record shows that he was granted a fair trial. He faults the closing argument as siding with the State, but it is not recorded.

Even when an issue of effective assistance is properly raised, a' hearing is not always necessary. Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). If the trial court were to consider appellant’s pro se complaints in this case, it would have to conclude as a matter of law that appellant states no basis upon which a new trial would be required because of ineffective assistance of counsel at the first one.

The judgment should be affirmed.

I am authorized to state that Presiding Judge Deen joins in this opinion.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent.

The Supreme Court has declined to address a claim of ineffective assistance of counsel when it was not raised in the court below: “(a) when appellate counsel failed to file a motion for new trial, [Cit.]; (b) when appellate counsel filed a motion for new trial but failed to raise the ineffectiveness issue, [Cit.]; and (c) when appellate counsel was retained for the first time during the pendency of the appeal. [Cit.]” Smith v. State, 255 Ga. 654, 656 (341 SE2d 5) (1986). The court in Smith went on to note that in each instance “the trial court had not ruled on the issue, nor was there available any testimony from the lawyer who conducted the trial.” Id. at 656.

In Smith, trial counsel filed a motion for a new trial. The defendant then obtained a new lawyer who filed an amendment to the motion for a new trial, but did not raise the ineffective assistance issue. The court held that “[i]t is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment.” Id. at 656. The case was remanded for a hearing on the ineffective assistance claim.

In Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987), appellate counsel filed an amended motion for a new trial and did not raise the ineffective assistance issue until the direct appeal was filed. The case was remanded for a hearing in accordance with the holding in Smith, but the court went on to hold that henceforth “[a]ny ineffective counsel challenge will be deemed waived [and the case will not be remanded] if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.” Id. at 388.

In Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988), the issue of ineffective assistance was raised in an amended motion for new trial by appellate counsel. He did not, however, request an evidentiary hearing on the issue. Instead, he chose to argue the motion by an extensive brief. The court held that Thompson did not control and remanded the case for an evidentiary hearing under Smith. The court, however, added that it will no longer remand such cases as appellate counsel must request a hearing in the amended motion for a new trial or the right to a hearing is waived.

In the instant case, trial counsel filed a motion for a new trial asserting only the general grounds. Twenty-one days later counsel filed a motion seeking permission to withdraw as Hightower’s attorney. The motion was granted, and the motion for a new trial was denied. A second attorney filed a timely notice of appeal and filed motions asserting Hightower’s indigency and requesting that he be appointed counsel on appeal. These motions were granted. At some point prior to filing an enumeration of error and brief with this court Walter J. Lane, Jr., was appointed to represent the appellant. He has not filed any documents in the lower court and raises the issue of ineffective assistance of trial counsel for the first time on appeal.

Decided December 5, 1988.

Walter J. Lane, Jr., for appellant.

Willis B. Sparks III, District Attorney, Robin B. Odom, Thomas J. Matthews, Assistant District Attorneys, for appellee.

I believe that the decisions in Thompson and Dawson have modified the holding in Smith and that the issue of ineffective assistance of counsel must be presented to the trial court and an evidentiary hearing requested or the issue is not preserved for appellate review.


author: Deen, Presiding Judge.

text:
    77816.
    MIDURA et al. v. THE STATE.
    (377 SE2d 20)
   Deen, Presiding Judge.

In July 1987 this court affirmed the convictions of appellants Ed and Julie Midura on counts of possession of marijuana with intent to distribute and, with respect to Ed Midura, possession of firearms by a convicted felon. Midura v. State, 183 Ga. App. 523 (359 SE2d 416) (1987). One of the issues raised by both appellants on that appeal was ineffective assistance of counsel in the court below, and this court remanded the case to the trial court “for a hearing and appropriate findings.” Id. at 524. Ed Midura appeals from the judgment entered in April 1988 after a hearing pursuant to the remand; Julie Midura appeals both from that judgment and from the May 24, 1988, order making expressly applicable to her the April order denying Ed Midura’s motion to set aside the prior judgment. They enumerate as error the trial court’s finding that appellants had adequate counsel at trial and that the order making the prior judgment applicable to Julie Midura was proper. The Miduras are represented on appeal by a different attorney than the one who represented them at trial. Held:

According to the record, Ed Midura entered into a plea-bargaining agreement relative to one of the charges against him and in connection therewith provided certain information. The trial court did not accept the agreement and permitted Midura to withdraw his guilty plea. After Midura had been found guilty, the judge, in view of Midura’s status as a recidivist with four prior convictions, imposed a substantial sentence. Midura contends that his trial attorney demonstrated his ineffectiveness by failing to insist on specific performance of the plea-bargaining agreement, and he relies on Santobello v. New York, 404 U. S. 257 (92 SC 495, 30 LE2d 427) (1971), in support of his contention. Study of the record reveals that this was the case cited by the trial attorney as preventing him from insisting on specific performance and accepting, instead, the trial court’s offer to permit withdrawal of the guilty plea.

Decided November 28, 1988.

Billy L. Spruell, for appellants.

Rafe Banks III, District Attorney, T. Russell McClelland III, Assistant District Attorney, for appellee.

We agree with the trial attorney and with the trial court that this act and/or decision by the trial attorney did not prove ineffectiveness. It was rather, simply an intelligent reading of the law and a matter of trial strategy and therefore did not constitute error. Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). See Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). Compare Lloyd v. State, 258 Ga. 645 (373 SE2d 1) (1988); Weeks v. State, 258 Ga. 662 (373 SE2d 21) (1988); Hightower v. State, 189 Ga. App. 553 (376 SE2d 717) (1988) (dissenting opinion). Moreover, we agree with the court below that even if, arguendo, this were error, it is highly probable that it did not contribute to the conviction. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

Judgment affirmed.

Sognier and Carley, JJ., concur.


text:
    77230.
    GRAY et al. v. BROOKS.
    (376 SE2d 722)
   Deen, Presiding Judge.

Appellee, Sylvia Brooks, operated a convenience store which she sold to appellants, who made a cash down payment and executed a promissory note and a security agreement for the balance. When appellants defaulted on their monthly payments, Mrs. Brooks filed an action seeking a writ of possession, to foreclose on the security agreement and for $8,214.60, the unpaid balance on the note. After a bench trial, the court entered judgment in favor of the appellee. This appeal was filed after the denial of appellants’ “motion for a new trial, equitable motion to. set aside judgment and alternatively for a j.n.o.v.”

1. Appellants first contend that the trial court failed to give effect to the agreement of the parties concerning the loss and destruction of the inventory after its repossession.

The evidence showed that the appraiser who took the inventory after the repossession valued it at $14,988.54 retail. An auction was to be conducted, but when the auctioneer went to look at the store, he found evidence of a break-in, and the contents were strewn about. Very little inventory remained because of apparent pilfering and destruction of foodstuff by rats. The remaining inventory and equipment were sold at auction for $1,678.75. The trial court found that the equipment plus the inventory were valued at nearly $15,000 and that the sale price was reasonable.

The defendants introduced a letter into evidence, which was identified as a letter dictated by appellants’ attorney in the presence of appellee’s attorney, which states that “the parties agreed that the value of the inventory as set by the appraiser would control the matter as of the date that appellee took possession of the inventory. You are at liberty to dispose of this inventory at wholesale or retail or other fashion as you deem fit, and keep the proceeds in escrow available to us in case of judgment. We are nevertheless looking to you for the value of the inventory as of its date of valuation, whether you sell it for more or less than this price.” The letter was admitted without objection. It was stipulated that it was a true and correct copy of the original that was dictated by appellants’ attorney and that it constituted an agreement between the parties. Appellants argue that it was supported by consideration because it authorized appellee to sell the inventory at her other store for retail, and that the agreement provided the appraiser’s valuation of the inventory and equipment was conclusive as to value.

Appellee argues that the letter merely indicates that an appraisal would be done, and should the trial court determine that appellee was not liable to appellants under the terms of the installment note and security agreement, the stipulated amount would be binding and the value of that amount would be returned to appellants. Appellee further contends that it provided that should appellee prevail at trial and appellants be found liable to appellee under the note and security agreement, the amount would have no bearing because appellee intended to go after a commercially reasonable sale and credit appellants for what the merchandise brought at the sale.

The trial court did not interpret this alleged agreement or even mention it in its initial findings of fact and conclusions of law entered on June 30, 1987, following a non-jury trial. After a hearing on appellants’ post-judgment motions, the court entered an order on April 28, 1988, in which it considered the letter and rejected the assertion by appellants that it represented an agreement to set off “the retail value” of the merchandise against the balance due on the plaintiff’s note and security deed. Appellants argue in their brief that this ruling shows unexplained bias and prejudice on the part of the judge and should be grounds for a new trial. A scrutiny of the record reveals that there is evidence to support the findings of the trial judge. Weeter v. Holt, 143 Ga. App. 664 (239 SE2d 552) (1977), and we find no error.

2. As appellants did not raise the issue in the court below that appellee failed to file a bond pursuant to the provisions of OCGA § 44-14-263, it cannot be considered by this court for the first time on appeal. Bostic v. State, 184 Ga. App. 509 (361 SE2d 872) (1987).

Decided December 5, 1988.

S. Phillip Brown, for appellants.

Cook & Shaffer, William D. Gifford, E. Thomas Shaffer, Jr., for appellee.

3. Appellants’ remaining enumerations of error all pertain to the conclusions of law by the trial judge and the finding that appellants blindly relied upon “false” statements made by appellee to them when they purchased the store.

The trial court’s order shows that it made no such conclusions as to “false” statements. The court stated that the blind reliance of the appellants was not so much a product of fraud as it was of appellants’ own carelessness. The appellee provided sales tax figures for the business and offered to allow appellants to examine the daily cash register receipts. Mrs. Brooks informed them that she did not have a beer license for the store because it was revoked for illegal sale of beer on Sunday. They made no inquiry as to the volume of the illegal sales and did not ask for a guarantee of the store’s overall sales volume. Appellants claim they closed the store because it did not do the expected volume of sales and blamed Mrs. Brooks’ failure to disclose the amount of illegal Sunday beer sales for their problem. Mr. Gray, however, also admitted that another reason for closing the store was his discovery that the State of Georgia owned the land up to the front door of the building in which the store was located.

The trial court’s finding of a lack of fraud on the appellee’s part is amply supported by the evidence. Factual determinations made by the trial court sitting without a jury in a civil case will not be disturbed unless clearly erroneous. Theatre of the Stars v. Atlanta Woman’s Club, 184 Ga. App. 810, 814 (363 SE2d 6) (1987).

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Benham, Judge.

text:
    77256.
    SMITH v. THE STATE.
    (376 SE2d 725)
   Benham, Judge.

This is an appeal from a judgment of conviction for burglary. OCGA § 16-7-1. Appellant’s sole enumeration of error is that the evidence was insufficient for the jury to have found that he intended to commit a theft in the victim’s dwelling. We disagree with appellant’s assertion and affirm the judgment.

Decided December 5, 1988.

Charles G. Wright, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.

The evidence showed that the victim lived in a house with his mother, his brother, and his girl friend; that on the night in question, he was asleep in bed with his girl friend when she woke him up to tell him that she heard someone knocking on the door of the house and then thought she heard someone busting or kicking the door down. The victim got up, checked his brother’s room, and confronted appellant. When the victim asked him what he was doing, appellant identified himself with a false name and said he was looking for someone, but did not say for whom. The victim, who was brandishing a small knife, told appellant to get out; appellant called for his companion, and they left in a vehicle in which a third party was waiting. Someone in the vehicle fired shots at the house as the vehicle left the premises. It was further established that appellant, after knocking several times, had kicked in the locked door of the house to gain entry; that appellant had entered the house without permission; and that a pair of socks was missing from a room in which appellant had been. The evidence was sufficient to sustain the jury’s finding that appellant intended to commit burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lloyd v. State, 168 Ga. App. 5 (308 SE2d 25) (1983).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    77399.
    PIEDMONT HOSPITAL, INC. v. MILTON et al.
    (377 SE2d 198)
   McMurray, Presiding Judge.

Vivien Milton and his wife brought a two-count action against Piedmont Hospital, Inc., seeking damages for injuries Mr. Milton allegedly sustained in a fall while recovering from surgery at defendant’s hospital. In Count 1, the Miltons alleged medical malpractice in that defendant’s nursing staff was negligent in allowing Mr. Milton “to leave his bed and proceed to the bathroom,” disregarding the treating physician’s order that patient remain “supine.” In Count 2, the Miltons assert generally that their “damages were caused by the negligence of the Defendant . . .”

The Miltons filed with their complaint the affidavit of Dr. William M. Scaljon, who deposed that he performed surgery on Mr. Milton on December 15, 1986, and that after surgery he gave defendant’s nursing staff “instructions for the patient to remain [in the] ‘supine position today.’ ” Dr. Scaljon further deposed that “it was brought to his attention that in the early morning of December 16, 1986, that Mr. Milton fell and broke his hip while being assisted to the bathroom[;] that walking the patient to the bathroom by a nurse or a nursing assistant was contrary to [his] directions [and that he] did not anticipate that a nurse or nursing assistant would walk the patient to the bathroom under the instructions given.”

Decided December 5, 1988.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen H. Sparwath, for appellant.

Young & Murphy, Robert G. Young, for appellees.

Defendant filed a motion to dismiss the Miltons’ medical malpractice action, arguing that Dr. Scaljon’s affidavit did not satisfy OCGA § 9-11-9.1. The trial court denied defendant’s motion and this court granted defendant’s application for interlocutory appeal. Held: OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

Dr. Scaljon’s affidavit is insufficient to meet the requirements of this Code section in that it fails to show that the affiant is “an expert competent to testify” in the field of nursing. The affidavit is also deficient in that it does not indicate that defendant’s nursing staff breached the requisite degree of care and skill required of the nursing profession generally by deviating from the treating physician’s post operative instructions. See Pilgrim v. Landham, 63 Ga. App. 451 (3, 4) (11 SE2d 420). Consequently, the trial court erred in failing to dismiss Count 1 of the Miltons’ complaint for medical malpractice. However, the Miltons’ complaint may be construed to state a cause of action for simple negligence, i.e. negligence that can be determined without the resort to expert testimony. Accordingly, Count 2 of the complaint must be sustained as a genuine issue of material fact remains with regard to the proximate cause of Mr. Milton’s injuries.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.


author: Carley, Judge.

text:
    77443.
    ASHBURN BANK v. GORDAY.
    (377 SE2d 30)
    Decided December 5, 1988.

      Mills & Chasteen, Ben B. Mills, Jr., for appellant.
   Carley, Judge.

Appellee filed a motion to set aside a judgment which had been entered against her and in favor of appellant. The parties filed cross-motions for summary judgment and a hearing was held. Prior to the entry of an order on the motions, appellee died and appellant filed in the trial court a suggestion of the death. However, the record contains no motion that the proper party be substituted for the deceased party nor any order of the trial court for such substitution. The trial court denied the motions for summary judgment but certified its orders for immediate review. This court granted appellant’s application for interlocutory appeal from the denial of its motion for summary judgment.

“ ‘A deceased person cannot be a party to legal proceedings. While the death of a party does not abate a pending action where the cause of action survives ([cit.]), nevertheless the effect of the death is to suspend the action as to the decedent until someone is substituted for the decedent as a party to the proceedings. [Cits.] Until someone is properly substituted as a party after the action is thus suspended, further proceedings in the case are void as to the decedent. [Cits.] . . . Since it appears that there is no living [appellee] in this case and that none can be supplied by amendment or by order of this court, it follows that the appeal is a nullity. [Cit.] . . .’ [Cit.] . . . [T]he proceedings subsequent to [appellee’s] death, including the [denial] of summary judgment to [appellant], are void, not merely voidable. [Cit.] ‘ “On the death of a party . . . , the action is suspended and the suspension has the same temporary effect on the rights of the parties as though the suit actually abated. The action remains in abeyance and cannot proceed until someone is substituted for the decedent . . . , and the personal representative or heirs of the decedent are not required to take notice of the pendency or defend the action until they are made parties.” ’ [Cit.]” Allen v. Cloudburst Mfg. Co., 162 Ga. App. 188-189 (290 SE2d 529) (1982). See also Cornett v. Hampton Court, Ltd., 176 Ga. App. 662 (338 SE2d 72) (1985). “Accordingly, we [dismiss] the instant appeal with the ‘admonition’ that the proceedings occurring in the trial court after [appellant’s] death are, as to [her], void.” Allen v. Cloudburst Mfg. Co., supra at 189.

Appeal dismissed.

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

B. H. Baldwin, for appellee.


text:
    77744.
    EVANS v. CITY OF ATLANTA et al.
    (377 SE2d 31)
   McMurray, Presiding Judge.

Appellant, who is serving a 15-year sentence for aggravated assault, terroristic threat and possession of a firearm by a convicted felon, mailed from the Central Correctional Institution in Macon, Georgia an “Inmate Form for Civil Action,” a pauper’s affidavit and other papers to the Clerk of the Superior Court of Fulton County. The pleadings were presented to a superior court judge for review prior to filing and the court held that “the pleadings show on their face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court should grant any relief against any parties named in the pleadings and therefore deny the filing of the pleading.” This appeal followed. Held:

OCGÁ § 9-15-2 (d) provides in part as follows: “When a civil action is presented for filing under this Code section by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.”

“When examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover. It is not necessary that the complaint be perfect in form or set out all of the issues with particularity, it is necessary only to place the defendant on notice of the claim against him. OCGA § 9-11-8; Sheppard v. Yara Engineering Corp., 248 Ga. 147, 149, 150 (281 SE2d 586).” Walton v. James & Dean, Inc., 177 Ga. App. 77, 78 (1) (338 SE2d 516).

In the case sub judice, appellant attempted to file, pro se, a lawsuit against three law enforcement officers, the police officers’ governmental employers and a municipal court judge, asserting “legal negligence, obstruction of public administration, abuse of governmental office, conspiracy [and] prejudice.” In a confusing and convoluted statement of facts, appellant alleged that the police officers arrested him illegally; that one of the officers knowingly perjured himself and manipulated evidence to secure appellant’s conviction; that the municipal court judge considered non-probative evidence at a pre-trial hearing and that the judge was prejudiced against appellant because the judge was the victim of a crime for which appellant had been charged. From these allegations, it is apparent that appellant’s claim against the municipal court judge is barred by the doctrine of judicial immunity. Bauers v. Heisel, 361 F2d 581 (3d Cir. 1966). See Calhoun v. Little, 106 Ga. 336 (2) (32 SE 86) and Hill v. Bartlett, 126 Ga. App. 833, 836 (1) (192 SE2d 427). However, “[w]e cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the [appellant] can prove no set of facts in support of his [claims against the law enforcement officers and their governmental employers] which would entitle him to relief.’ Conley v. Gibson, 355 U. S. 41, 45-46 (1957). See Dioguardi v. Durning, 139 F2d 774 (CA2 1944).” Haines v. Kerner, 404 U. S. 519, 520, 521 (92 SC 594, 30 LE2d 652). A liberal reading of appellant’s pleading in the case sub judice reveals a potential Civil Rights action under 42 USCA § 1983. Accordingly, without expressing a view as to the merits of appellant’s allegations, we conclude that he is entitled to file his action against the law enforcement officers and their respective governmental employers. See Acker v. Veal, 183 Ga. App. 297 (359 SE2d 7). Compare Hogan v. Peters, 181 Ga. App. 670 (353 SE2d 601). This case is remanded to the trial court with direction that its prior judgment be vacated and that the trial court enter an order denying filing as to the action against the municipal court judge and allowing filing as to the other named defendants.

Judgment vacated and case remanded with direction.

Pope and Benham, JJ., concur.

Decided December 5, 1988.

Richard Evans, pro se.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

       Appellant’s convictions were affirmed on appeal in Evans v. State, 186 Ga. App. 37 (366 SE2d 325).

       “Section 1983 of the Civil Rights Act prescribes two elements which are essential for establishing a cause of action: (1) The conduct complained of must have been done by some person acting under color of law; and (2) Such conduct must have subjected the complainant to the deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States. Basista v. Weir, 340 F2d 74 (3rd Cir. 1965). ‘Under color of law’ has been construed to mean ‘under color of any statute, ordinance, regulation, custom or usage, of any State or Territory.’ Henig v. Odorioso, 385 F2d 491, 494 (3rd Cir. 1967), and cases cited therein. This requirement has been further clarified in Henig, supra, in that there must be ‘(m)isuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law’ citing, inter alia, United States v. Classic, 313 U. S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1940).” Brzozowski v. Randall, 281 FSupp. 306, 310, 311 (1968).


author: Deen, Presiding Judge. Sognier, Judge,

text:
    77797.
    PADGETT v. CRAWFORD.
    (376 SE2d 724)
   Deen, Presiding Judge.

The appellant, Carlton Padgett, commenced this legal malpractice action 'against the appellee. The trial court granted the appellee’s motion to dismiss, on the basis that Padgett had not filed an affidavit of an expert setting forth the alleged negligence, and this appeal followed. Held:

OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required tó file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Padgett contends that this Code section applies only to medical malpractice actions, but this court has already decided that issue otherwise. Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988).

In this case, following the appellee’s motion to dismiss Padgett’s complaint for having filed no affidavit, the trial court gave Padgett 10 days in which to file such. Padgett submitted an affidavit within that time, but the affidavit neither states the qualifications of the affiant nor provides the affiant’s opinion as to the reasonableness or skill of the defendant attorney’s conduct. The trial court properly found this affidavit to be inadequate and dismissed the action.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

Sognier, Judge,

concurring specially.

As I agree with the position of the dissent in St. Joseph’s Hosp. v. Nease, 189 Ga. App. 239 (375 SE2d 241) (1988), I do not view the failure to file the required affidavit with the complaint, as required by OCGA § 9-11-9.1, as an amendable defect. In my view, therefore, appellant’s failure to file the affidavit with the complaint necessitated dismissal of the complaint by the trial court. Since it is well established that a judgment which is right for any reason should be affirmed, Waco Fire &c. Ins. Co. v. Roberson, 186 Ga. App. 38, 39 (366 SE2d 376) (1988), I concur in the judgment reached by the majority.

I am authorized to state that Judge Carley joins in this special concurrence.

Decided December 5, 1988.

Carlton Padgett, Sr., pro se.

A. Martin Kent, for appellee.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    76992.
    DAVIS v. JONES et al.
    (377 SE2d 163)
   Banke, Presiding Judge.

Evelyn Davis filed this wrongful death action against, Carey and Clifford Jones after her son, Robert, died from gunshot wounds inflicted by Carey Jones. The case has been tried twice. The first trial resulted in a verdict in favor of Davis. However, in Jones v. Davis, 183 Ga. App. 401 (359 SE2d 187) (1987), this court held that the Joneses should have been granted a new trial based on an error in the jury charge. The retrial resulted in a verdict in favor of the Joneses, and the case is now before us on appeal from the denial of Davis’s motion for new trial. Held:

1. The plaintiff contends that the trial court erred in refusing to allow her to introduce Clifford Jones’s pre-trial deposition testimony as rebuttal evidence in lieu of calling him as a rebuttal witness. In the alternative, she contends that the court erred in cutting off her cross-examination of this witness without allowing her to introduce a selected portion of his deposition testimony for impeachment purposes.

In support of the first contention, the appellant relies on OCGA § 9-11-32 (a) (3), which provides, in pertinent part, that the “deposition of a witness, whether or not a party, may be used by any party for any purpose. . . .” See Head v. H. J. Russell Constr. Co., 152 Ga. App. 864 (264 SE2d 313) (1980). However, pursuant to OCGA § 9-11-32 (a) (4), the use of a deposition given by a witness who is available to testify in person is subject to the discretion of the trial judge. See Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52, 54 (fn. 1) (295 SE2d 827) (1982). At the time the plaintiff sought to introduce the deposition, Clifford was already on the stand and was in the process of being cross-examined by the plaintiff’s counsel as a rebuttal witness. Consequently, no necessity whatever was shown for supplying his testimony by deposition, and the trial court did not abuse its discretion in declining to allow the deposition to be used for this purpose.

The deposition testimony was, however, potentially relevant for impeachment purposes. The shooting had occurred at a store where Carey Jones worked as a cashier and where the decedent was present as a customer. The plaintiff sought to prove that Carey Jones had shot her son in the entranceway of the store after becoming angry with him in a dispute over the amount of change he was entitled to receive from a beer purchase. The defendants, on the other hand, sought to establish that Carey had shot the decedent in self-defense as the latter was climbing over the counter to attack him. On rebuttal, in response to a question propounded by the plaintiff’s counsel, Clifford Jones testified that Carey had told him that the decedent was “coming across the counter” when the fatal shots were fired. In his deposition, however, Clifford had testified that Carey told him the decedent was standing in the entranceway when the shots were fired. It appears that the trial court declined to allow this portion of the deposition to be used for impeachment purposes because a proper foundation had not been laid for it.

“[T]he procedure for laying the foundation for impeachment by prior inconsistent statements [is] as follows: ‘[T]he cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made. ... If the witness denies the making of the statement, or fails to admit it, . . . then the requirement of “laying the foundation” is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.’ McCormick on Evidence 72, § 37 (2d ed.) (1972).” Carter v. State, 244 Ga. 803, 806 (262 SE2d 109) (1979). While an examination of the transcript reveals that no such foundation was laid for the introduction of the deposition testimony in this case, it further reveals that the reason no such foundation was laid was because the trial court cut off the questioning of the witness prematurely and refused to allow it. As the evidence in question was not only material but central to the plaintiff’s case, we must conclude that this constituted reversible error.

2. We reject the plaintiffs contention that the trial court gave an incorrect charge on self-defense, inasmuch as the court’s charge tracked the language of the statute, OCGA § 16-3-21. See McNeil v. Parker, 169 Ga. App. 756 (315 SE2d 270) (1984).

3. The plaintiff contends that during closing argument opposing counsel violated an earlier court ruling by referring to the fact that Carey Jones had previously been acquitted of criminal charges in connection with the incident. However, an examination of the transcript reveals that no objection was made to the comment at trial. “When allegedly improper argument is made to the jury, opposing counsel must object at trial or otherwise invoke a ruling of the trial court. Failure to so object constitutes waiver.” Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (5) (345 SE2d 56) (1986). (Emphasis supplied.) Accordingly, this enumeration provides nothing for review.

Judgment reversed.

Birdsong, C. J., Deen, P. J., Carley, Pope, and Benham, JJ., concur. McMurray, P. J., and Beasley, J., dissent. Sognier, J., dissents in judgment only.

Beasley, Judge,

dissenting.

I concur in Divisions 2 and 3 but respectfully dissent because the record does not contain a reversible error as found in Division 1.

Defendant Carey Jones gave his version of the event on direct examination: “. . . [McClellan] came in, he pulled some beer out of the cooler; I started to bag the beer, and I bagged it. He screamed, “I’ll beat your ass.” He started to come around the counter. I reached over, put my hand on the pistol and said, “Hold it,” and he tried to come over the counter and I shot him. He fell back down on the floor and got up. He came around the counter and fell. I went around the counter, tried to turn him over.” He also testified, “Well, when . . . he said that ‘I’ll use that gun on you,’ ” and “I felt like he’d try and do it.” He stated that he was afraid all through his body.

In further recounting the events, he testified that soon after the incident, “I remember seeing my father. I tried to tell him what happened, . . .”

In rebuttal, plaintiff sought to show that Carey gave his father a different version of what happened than he testified to, calling for the purpose of cross-examination Clifford Jones. Clifford was asked: “Is it your understanding from Carey that Bobby [McClellan] was coming across the top of the counter when he was shot?” After objection was made and overruled, the witness answered: “That’s what I understand.”

In an effort to impeach Clifford’s response, and to show that Carey told Clifford something else when he talked to him right after the incident, plaintiff turned to Clifford’s deposition taken in August 1985 (this trial was September 1987). The witness identified it and acknowledged that it was sworn to and signed by him. Counsel then read aloud from the deposition, with Clifford following and later agreeing that he read correctly:

“Question, ‘You have discussed this with Carey Jones, have you not?’ Answer, ‘Yes.’ Question, T realize that you were not there, but could you tell me your understanding or belief as to what happened in connection with that shooting?’ Answer, ‘What I was told?’ Question, ‘Yes.’ Answer, ‘That the deceased came into the store on two occasions and made some threats and attempted to come around behind the counter with a threat of doing bodily harm.’ [Question], ‘And that this precipitated the shooting?’ Answer, ‘Yes.’ ”

Then the jury was excused and in its absence plaintiff proffered a further deposition portion which he contended impeached Clifford’s trial testimony and rebutted Carey’s:

“ ‘Where did Carey Jones tell you he was standing when the shooting took place:’ Answer, ‘Right here.’ Question, ‘When you say here, you’re pointing to the . . .’ Answer, ‘Entr,anceway.’ ” (A portion is skipped and counsel reads again.) “[Q]uestion, ‘And he told you that Bobby McClellan was in the entranceway?’ Answer, ‘In the entranceway.’ Question, ‘Where the spot of blood shows?’ Answer, ‘Witness nods head affirmatively.’ ”

On appeal, appellant contends that he also proffered the following from Clifford’s deposition, but it was not done:

“Q. What did he say that Bobby McClellan did prior to the shooting?
“A. He came from in front of the counter around to the entranceway.
“Q. And was shot there?
“A. Yes.”

Although this was not proffered below, it is in the deposition as part of the record in the case. It demonstrates further that the deposition did not impeach Clifford’s trial testimony nor rebut Carey’s.

There is a hand-drawn diagram that was used throughout this litigation, including during the taking of the deposition and at trial. It was plaintiff’s first exhibit. The diagram shows that there were two “entranceways” which were discussed, the entranceway to the store and the entranceway to the area behind the counter. There were also two “spots of blood,” one just inside the door into the store, in front of the front part of the L-shaped counter and one in the entranceway to the area behind the counter. McClellan’s body is shown lying in front of the side part of the counter, with his feet near the latter-located blood. There were also two coolers, the beer cooler immediately in front of and parallel to the front part of the counter and near the door entrance, and a wall cooler adjacent to the entranceway to the area behind the counter and against a wall.

Taking the diagram and the testimony and deposition together, appellant has failed to show that 1) the deposition impeaches Clifford’s trial testimony or 2) the deposition rebuts Carey’s trial testimony.

Plaintiff’s counsel argued to the trial court that even if the deposition excerpts did not impeach Clifford so as to gain admissibility under OCGA § 9-11-32 (a) (1), it was admissible as substantive evidence in rebuttal of what Carey had testified to, under OCGA § 9-11-32 (a) (2). The argument was that since Clifford was a party to the lawsuit, his deposition could be used for any purpose, including rebuttal of a defense witness’ testimony. The court refused to allow the reading of this additional portion of the deposition to the jury.

Plaintiff’s counsel then said he would ask the witness directly about what Carey had told him, and if Clifford’s testimony was different from what he had said in deposition, he would then use the deposition to impeach Clifford.

Decided November 16, 1988 —

Rehearing denied December 8, 1988

George W. Fryhofer, Bondurant, Mixson & Elmore, George W. Fryhofer III, for appellant.

Gary A. Glover, Michael C. Garrett, Percy J. Blount, for appellees.

Defendant Carey Jones’ counsel objected that it was not rebuttal testimony, because defendants had introduced no evidence as to what Carey had told his father but only that Carey had talked about it with his father. The court sustained the objection, plaintiff made no proffer, and Clifford Jones withdrew from the witness stand. Since we do not know what Clifford would have said if cross-examined further, we cannot rule that exclusion was harmful. Dubberly v. P. F. Moon & Co., 184 Ga. App. 221, 223 (2) (361 SE2d 223) (1987); Lakeview Estates v. Hilltop &c. Inc., 153 Ga. App. 323, 325 (2) (265 SE2d 120) (1980); Grant v. Bell, 150 Ga. App. 141, 145 (2) (257 SE2d 12) (1979), rev’d on other grounds, Bell v. Grant, 244 Ga. 665 (261 SE2d 616) (1979).

Since appellant has failed to show that she was precluded by the judge’s ruling from impeaching Clifford by his deposition or rebutting Carey by Clifford’s further testimony or the deposition, there is no reversible error.


author: Birdsong, Chief Judge.

text:
    77304.
    GENE THOMPSON LUMBER COMPANY, INC. v. DAVIS PARMER LUMBER COMPANY, INC. et al.
    (377 SE2d 15)
   Birdsong, Chief Judge.

This is an appeal of the amended judgment awarding both plaintiffs/appellees the total sum of $5,965.84 with interest as provided by law. The trial court directed a verdict in favor of both plaintiffs/appellees in the amount of $5,233.64, and the jury awarded an additional $732.20.

Appellant, Gene Thompson Lumber Company, purchased three loads of lumber from the appellee, Davis Parmer Lumber Company. Mr. Gene Thompson, principal stockholder of Gene Thompson Lumber Company, admitted in judicio that the appellant had ordered and received the lumber listed in the three invoices of appellee Davis Parmer Lumber Company, and that appellant had not paid for this lumber. However, appellant asserted that the lumber had been graded after receipt and was found “to be defective,” that is, it was not of the grade specified in the purchase orders. The difference in the value of the lumber ordered and that actually received was $732.20. Appellant notified appellee Davis Parmer Lumber Company of its claim, but the claim was not honored.

On September 28, 1987, Davis Parmer Lumber Company notified its insurance company of the nonpayment of account by appellant, and filed a “Notification of Claim” placing the account of the appellant in the hands of the insurance company for collection. On October 1, 1987, appellee Davis Parmer Lumber Company brought suit against appellant for the amount due and owing on the three lumber purchases. On January 29,1988, appellee Davis Parmer Lumber Company assigned its claim of $5,965.84 against appellant to appellee the Continental Insurance Company. The Continental Insurance Company paid Davis Parmer Lumber Company the amount of $3,600 but apparently declined to pay the balance of the claim. In April, 1988, The Continental Insurance Company was joined as an indispensable party plaintiff to this suit and the original complaint was amended to reflect this joinder. The Continental Insurance Company apparently had previously authorized another Georgia attorney to initiate suit against appellant, and a second Davis Parmer Lumber Company lawsuit was filed on January 13, 1988. However, this action was dismissed when the existence of the suit at bar became known. Ultimately, the Continental Insurance Company authorized counsel for appellee Davis Parmer Lumber Company to represent it also in the current litigation.

At the conclusion of plaintiffs’ case in chief, appellant moved for a directed verdict against both plaintiffs. These motions were denied. After both sides had rested, appellant again moved for a directed verdict as to appellee Davis Parmer Lumber Company, and the appellees moved for a directed verdict in favor of the plaintiffs. The trial court granted a directed verdict in favor of both plaintiffs “for the principal amount sued less . . . $732.20.” The jury returned a verdict in favor of both plaintiffs not only for the amount mandated by the directed verdict but for the amount of $732.20 as well. Held:

1. Appellant’s first and second enumerated errors are that the trial court erred in refusing to disqualify Harry Wingate as counsel for both Davis Parmer Lumber Company and the Continental Insurance Company, and that the trial court erred in denying its motion to disqualify Mr.’ Wingate as the attorney for the Continental Insurance Company. The ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge. See Rivers v. Goodson, 184 Ga. App. 70 (1) (360 SE2d 740); Young v. Champion, 142 Ga. App. 687, 690-691 (236 SE2d 783); see also, Directory Rule 2-110. Our review of the record reveals no abuse of discretion in refusing to disqualify Mr. Wingate. Moreover, in the absence of contrary evidence, it will be presumed that members of our State Bar have properly complied with the Bar’s ethical directory and disciplinary rules.

2. Appellant contends the trial court erred in overruling an objection to the questioning of appellant’s principal stockholder regarding appellant’s sale of the lumber received from Davis Parmer Lumber Company. Appellant’s objection in effect was based on lack of relevancy. Admissibility of evidence rests in the trial court’s sound discretion. Lewis v. State, 158 Ga. App. 586 (1) (281 SE2d 331). Moreover, “evidence of doubtful relevancy or competency should be admitted and its weight left to the jury.” Thomas v. State, 173 Ga. App. 810 (1) (328 SE2d 422). The enumeration of error is without merit.

3. Appellant contends the trial court erred in denying his motions for directed verdict as to the claims of the Continental Insurance Company and Davis Parmer Lumber Company, Inc. We disagree.

(a) Appellant asserts that because Davis Parmer Lumber Company assigned its claims against appellant to the Continental Insurance Company, suit must be brought solely in the name of the assignee. OCGA § 9-11-25 (c) provides that “[i]n [any] case of any transfer of interest, the action may be continued by or against the original party unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” (Emphasis supplied.) This subsection vests discretion in the trial judge to allow the original plaintiff to continue suit either alone or joined by the interest transferee when the transfer of interest occurred after the filing of the suit. See generally Rives E. Worrell Co. v. Key Systems, 147 Ga. App. 383 (1) (248 SE2d 686); Employers’ Liability Assur. Corp. v. Keelin, 132 Ga. App. 459 (1) (208 SE2d 328), cert. den.; Ga. Prac. & Proc. (5th ed.), § 4-170. Thus, OCGA § 9-11-25 (c) “contemplates a transfer of interest, during the litigation, from one who is a party to the case to one who is not.” Commercial &c. Co. v. Ed Collins &c., 147 Ga. App. 183, 184 (248 SE2d 220). Contrary to appellant’s contentions, the assignment of interest occurred after this suit was filed. Thus, OCGA § 9-11-25 (c) is not rendered inoperative due to a transfer of interest prior to suit filing. However OCGA § 9-11-25 (c), when operative, does not automatically authorize the continuance of an original action in all cases following the transfer of an interest. Goodyear v. Trust Co. Bank, 248 Ga. 407, 408 (284 SE2d 6). If a cause of action does not survive a subsequent transfer of interest, OCGA § 9-11-25 (c), standing alone, would not revive it. See Goodyear, supra at 408. Considering the terms of the subsequent assignment in its entirety, the intent and conduct of the parties thereto, and the evidence of record regarding partial payment of Davis Parmer Lumber Company’s claim by the insurer, we find that Davis Parmer Lumber Company’s personal cause of action survived the subsequent transfer of interest by assignment, at least as to that portion of its original claim in excess of the amount paid by its insurer. Accordingly, the trial court, in the exercise of its discretion, could order the joinder of the assignee insurance company in the original suit brought by Davis Parmer Lumber Company. OCGA § 9-11-25 (c). Thus, the trial court did not err in refusing to grant a directed verdict on the basis that suit must be brought solely in the name of the assignee, the Continental Insurance Company.

(b) Appellant asserts that it was entitled to directed verdict against the Continental Insurance Company. Upon appellate review of a denial of a motion for directed verdict, this court will consider all relevant admissible evidence of record whether admitted or elicited during the plaintiffs’ case in chief or subsequent thereto. See generally Bethay v. State, 235 Ga. 371 (1) (219 SE2d 743); we are satisfied that the posture of the evidence in this case warranted the denial of appellant’s motion for directed verdict not only as to the Continental Insurance Company but as to Davis Parmer Lumber Company as well. The posture of the evidence did not demand a verdict in favor of appellant. OCGA § 9-11-50 (a). Appellant’s fourth and sixth enumerations of error are without merit.

4. Appellant’s fifth and seventh enumerations of error are that the trial court erred in grating a partial directed verdict in favor of both plaintiffs and erred in denying a motion for mistrial based on similar grounds, respectively.

There is no merit to a contention that partial directed verdicts cannot be granted. Taylor v. Buckhead Glass Co., 120 Ga. App. 663, 665 (171 SE2d 779), rev’d on other grounds, 226 Ga. 247 (174 SE2d 568). This court has condoned the practice of granting a directed verdict on a single issue. See e.g., Superior Distrib. v. Johnson, 183 Ga. App. 131 (1) (358 SE2d 474); Davis v. Pachuilo, 169 Ga. App. 677 (1) (314 SE2d 692). Such a practice is entirely consistent with the general purpose of the Civil Practice Act. OCGA § 9-11-1.

In the case at bar, appellant made an admission in judicio that he had ordered, received, and partially sold the three shipments of lumber; that he had not paid for any of the lumber; and, that he found a discrepancy as to the quality of the lumber ordered but only as to the amount of $732.20. The trial court had authority to grant a partial directed verdict in favor of the plaintiffs as to the uncontested amount owed. Ga. Const., Art. VI, Sec. I, Par. IV; OCGA §§ 9-11-1; 9-11-50 (a); 15-6-8 (6); 15-7-42. We need not determine whether the trial court should have allocated the amount of the directed verdict between the two plaintiffs so that the Continental Insurance Company received an award of $3,600 (the amount of its payment to claimant) and the remainder was awarded to Davis Parmer Lumber Company. In the absence of a showing of prejudice, assuming error occurred by the failure to allocate the award, it would not warrant reversal. See Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882). Accordingly, we find these enumerations of error to be without merit.

Decided November 22, 1988 —

Rehearing denied December 8, 1988

T. Lee Bishop, Jr., for appellant.

Harry L. Wingate, Jr., for appellees.

5. The appellant next asserts the trial court erred in instructing the jury that any verdict returned by the jury must be in favor of both plaintiffs. Assuming arguendo that the instruction was erroneous, appellant has failed to show how he has been prejudiced by this instruction. “An inappropriate charge, unless harmful, is not ground for new trial.” Adrian Housing Corp. v. Lucas, 144 Ga. App. 186 (6) (240 SE2d 732); accord Cullen v. Timm, 184 Ga. App. 80, 82 (1) (360 SE2d 745); Johnston v. Woody, 148 Ga. App. 152 (2) (250 SE2d 873). This enumeration of error is without merit.

Appellee’s motion for damages pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

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


text:
    77626.
    LANDS v. THE STATE.
    (376 SE2d 701)
   Deen, Presiding Judge.

The appellant, David Lands, was convicted of child molestation of the daughter of the woman with whom he was living. On appeal, he attacks the specificity of the indictment, certain evidentiary rulings, and a portion of the jury charge. Held:

1. Lands contends that the trial court should have granted his special demurrer to the indictment on the basis that the indictment failed to allege a specific date on which the crime was committed. As noted by Lands, “An indictment or accusation which fails to allege some specific date on which the offense was committed is defective as to form and therefore subject to a timely interposed special demurrer pointing out such defect.” Lyles v. State, 215 Ga. 229, 231 (109 SE2d 785) (1959). Since the indictment in the instant case charged Lands with committing the offense “on and between the dates of March 15, 1987, through March 31, 1987, the exact date being to the grand jurors unknown,” the indictment sufficiently specifies a date. As this court has previously noted, in forming an indictment, “[t]he state cannot be more specific than the evidence permits.” Keri v. State, 179 Ga. App. 664, 668 (347 SE2d 236) (1986).

2. A special agent with the GBI and an investigator with the Carroll County Sheriff’s Department interviewed Lands after the child victim had passed a polygraph test. In response both to the former’s question of what did he think about the victim passing the polygraph, and to the latter’s question of whether he thought the child was lying about the allegations of molestation, Lands remarked that she may or may not be lying. At trial, the GBI agent did not refer to her question, but the investigator was allowed to recount her question and Lands’s answer. Lands contends that although no reference to any polygraph occurred, the testimony was inadmissible because (1) his remark was obtained in the context of discussing the results of the victim’s polygraph, and (2) he was not provided a copy of the statement he made, as required under OCGA § 17-7-210. We find no merit in either contention.

“In Georgia, the law of evidence in criminal trials is that the results of polygraph examinations are probative and admissible upon express stipulation, but that all other evidence concerning polygraphs is nonprobative, irrelevant and inadmissible.” Brown v. State, 175 Ga. App. 246, 249 (333 SE2d 124) (1985). The State was careful to avoid any reference to the polygraph examination of the victim, and the question recounted at trial by the investigator simply was whether the child was lying about the alleged molestation. The testimony in this case did not concern a polygraph.

The State provided Lands with the GBI agent’s written report of Lands’s remark that the child victim may or may not be lying. For purposes of determining compliance with OCGA § 17-7-210, it does not matter that this summary recounts only the question asked by the GBI agent and not that asked by the sheriff’s investigator. “The purpose of the statute is to inform the defendant in writing of all relevant and material portions of his own statements that the State intends to use to his disadvantage. [Cit.]” Roman v. State, 185 Ga. App. 32, 34 (363 SE2d 329) (1987). The State did provide Lands with the portions of his statement that it planned to use, and the purpose of the statute was satisfied.

3. At one point while instructing the jury on prior inconsistent statements, the trial court inadvertently said “consistent” rather than “inconsistent.” However, immediately thereafter in the same sentence, the trial court correctly referred to inconsistent statements, and in the next paragraph gave the converse jury charge on prior consistent statements. Under these circumstances, we are not persuaded that the jury could have been misled or confused by this slip of the tongue. Caldwell v. State, 167 Ga. App. 692 (4) (307 SE2d 511) (1983).

Decided November 22, 1988 —

Rehearing denied December 8, 1988

Murphy, Murphy & Garner, Stephen E. Garner, for appellant.

William G. Hamrick, District Attorney, Monique Kelly, Assistant District Attorney, for appellee.

4. Over defense counsel’s objection that the evidence was irrelevant, the child victim was allowed to answer the State’s question about the effect the alleged molestation had had on her family. While agreeing that this line of inquiry was irrelevant to the issue of whether molestation had occurred, we are also unpersuaded that this evidence so inflamed the jury emotionally that reversible error resulted.

Judgment affirmed.

Sognier, J., concurs specially. Carley, J., concurs in Divisions 1, 2, 3 and in the judgment.

Sognier, Judge,

concurring specially.

I concur specially because while I cannot agree with the statement in Division 4 that testimony by the victim regarding the effect of the molestation on her family did not inflame the jury emotionally, the admission of this testimony did not constitute reversible error in view of earlier testimony by another witness to the same effect which had been admitted without objection. Lightsey v. State, 160 Ga. App. 62, 63 (3) (286 SE2d 41) (1981); Glass v. State, 235 Ga. 17, 19 (2) (218 SE2d 776) (1975).