author: Eldridge, Judge.

text:
    A97A1898.
    CARTER v. THE STATE.
    (491 SE2d 525)
   Eldridge, Judge.

A Fulton County jury found appellant Ronald Carter guilty of two counts of armed robbery arising from the following set of facts, viewed in a light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

After a brief visit with friends at the Eagen Public Housing Project, brothers Russell Moore and Bernard Moore, along with their 12-year-old cousin, Johnny Harris, walked toward Russell’s 1976 Ford LTD to leave. Appellant and an as-yet unidentified accomplice approached the group. Appellant put a gun to Russell Moore’s head and told him, “You know what it is.” Appellant took the keys to the LTD and went through Russell’s pockets, taking money and a pager. Appellant then aided his accomplice in searching Bernard Moore’s pockets; money was removed from Bernard’s pockets and gold rings were removed from his fingers. Johnny Harris observed the entire incident. Thereafter, appellant instructed the Moore brothers to drop their pants down to the knees and to run across an adjoining field; Harris ran with them. Appellant and his accomplice took Russell Moore’s car.

After reaching safety, the victims called the police and reported the incident. Russell Moore’s car was recovered the next day. Several items had been removed from the car, including Russell’s Washington Redskins Starter jacket.

The following day, two days after the armed robbery, Russell Moore received a telephone call from a friend, informing him that the person who had robbed him was standing outside Eagen Homes; the Moore brothers immediately drove to Eagen homes and recognized appellant who was standing outside; appellant was wearing Russell Moore’s Redskins jacket. The victims drove to a nearby service station and called the police; they asked for the same officer who had responded to the original armed robbery call. The officer arrived at the service station, and the brothers informed him of appellant’s location and told him that appellant was wearing the Redskins jacket. The officer apprehended appellant, who had attempted to run, and returned him to the service station for an identification. Both Moore brothers, without hesitation, identified appellant as the one who had robbed them two days earlier. In addition, at trial Johnny Harris positively identified appellant as the one who held the gun during the armed robbery of the Moore brothers.

1. In his first enumeration of error, appellant contends that the trial court erred in denying his motion to suppress the victims’ in-court identification as tainted by the one-on-one showup at the service station two days after the armed robbery; appellant contends that this showup was impermissibly suggestive. We do not agree.

Generally, “[i]n cases involving line-ups and show-ups, an accused, already under suspicion by the state, is confronted by his accuser under conditions controlled by the state.” (Punctuation omitted.) Curtis v. State, 183 Ga. App. 6, 7 (357 SE2d 849) (1987). However, in the case sub judice, the accusers located appellant and spontaneously recognized him at a time when he was not under pólice suspicion for the commission of any crime. Appellant was identified by his accusers before the showup about which he complains. Certainly the fact that appellant was wearing the victim’s Redskins jacket was not prompted by any action on the part of the police officer which would raise issues of improper and prejudicial influence by the State, and without improper State action, the fact that the jacket worn by appellant may have played a part in the victims’ identification would go to the weight, not the admissibility, of this evidence pursuant to a motion to suppress. Gilstrap v. State, 250 Ga. 814, 816 (1) (301 SE2d 277) (1983).

In addition, “both state and federal courts have also recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible if not desirable. These include the necessity of a speedy police investigation and the necessity to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects. [Cits.]” (Punctuation omitted.) Baynes v. State, 218 Ga. App. 687, 688 (463 SE2d 144) (1995). Under the totality of the circumstances, we find no likelihood of misidentification in the case sub judice and thus no taint as a result of the subsequent showup at the service station after the victims had identified appellant and called the police. See Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972). Both victims testified as to the sunny, daylight conditions that marked their unobstructed view of appellant for the approximately five minutes in which the armed robbery occurred. Appellant did not wear a mask or otherwise attempt to conceal his appearance. Both victims testified that appellant was recognized by his facial features, not the fact that he was wearing Russell Moore’s jacket at the time of the showup. Further, Johnny Harris, who was not present at the showup, corroborated the victims’ identification of appellant as one of the perpetrators. See Williams v. State, 188 Ga. App. 496, 498 (2) (373 SE2d 281) (1988). “[I]n the absence of evidence of record demanding a finding contrary to the judge’s determination, we will not reverse the ruling denying the suppression. The evidence was sufficient to show that this [showup] was not impermissibly suggestive.” (Citations and punctuation omitted.) Wright v. State, 211 Ga. App. 474, 477 (3) (440 SE2d 27) (1993).

2. At trial, appellant testified on direct examination that he bought the victim’s pager, as well as his jacket, from a man named “Michael Pitts” who was selling both items for $45 between two buildings in Eagen Homes. On cross-examination, appellant testified that he bought the pager because he regularly resells pagers and cellular telephones to a man named “John,” who reactivates them and sells them again. In his second enumeration, appellant claims as error the prosecutor’s cross-examination inquiry as to whether “John” might buy stolen goods; appellant contends that such inquiry regarding the possibly illegal activities of “John” improperly reflected upon appellant’s character. We find that, if such is the case, appellant opened the door to the inquiry.

Appellant introduced on direct examination the evidence regarding his alleged purchase of the victims’ property between the apartment buildings in Eagen Homes for significantly less than full price. Thus, cross-examination was proper thereon, including inquiry as to where the items came from, why appellant wanted to buy the items, the questionable circumstances surrounding the sale, and what appellant planned to do with the pager, since evidence showed that appellant already owned two pagers. Such inquiry legitimately included questions reflecting upon appellant’s intent with regard to the possible purchase of goods that might be stolen and the re-sale thereof. OCGA § 24-9-64.

Moreover, from the record it seems that the jury would be entitled to conclude the circumstances of appellant’s alleged purchase of the items from “Michael Pitts” appear less than legitimate, and appellant testified that at the time of purchase, he did not know if the items were stolen or not. Clearly, then, appellant’s voluntary testimony on direct examination that he purchased items from “Michael Pitts,” who possibly deals in stolen goods, is no less reflective of his character than his complained of testimony on cross-examination that he sells items to “John,” who possibly deals in stolen goods. The record shows that the line of questioning about which appellant complains properly explored appellant’s explanation for his possession of the stolen items, and the validity of appellant’s contentions that he was not the person who committed the armed robbery against the victims. See Jones v. State, 257 Ga. 753, 754 (1) (363 SE2d 529) (1988).

Decided September 2, 1997.

Viveca B. Famber, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

3. We find no error in the trial court’s denial of appellant’s motion to disqualify Ruby Grant from jury service pursuant to OCGA § 15-12-163. Appellant’s contention that Grant was unable to hear provides no basis for disqualification under that Code section; and, other than this bare assertion, there is no evidence of record in support of appellant’s contention. Accordingly, the trial court did not abuse its discretion by failing to remove the juror. Hayes v. State, 261 Ga. 439, 441 (2) (405 SE2d 660) (1991); Robinson v. State, 180 Ga. App. 248, 249 (2) (348 SE2d 761) (1986).

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

       It must be noted that striking for cause a juror based upon a physical disability which is cognizable under the Americans with Disabilities Act of 1990, 42 USC § 12101 et seq., without making an attempt at a reasonable accommodation for the disability, may constitute a violation of the Act, if, as in the case sub judice, the juror wanted to serve.


source: Caselaw Access Project

license: Public Domain

text:
    A97A2027.
    DRAWDY v. DEPARTMENT OF TRANSPORTATION.
    (491 SE2d 521)
   Eldridge, Judge.

The plaintiff, Brenda Drawdy, was injured in an automobile accident which occurred on July 25, 1993, in Glynn County. Drawdy was traveling westbound on the E. J. Torras Causeway. It was raining, and as she approached the Back River Bridge, her vehicle entered a pool of standing water, which caused her vehicle to hydroplane out of control and to strike the guard rail; Drawdy was thrown from her vehicle.

Drawdy brought suit against the Georgia Department of Transportation (“DOT”) for negligence in maintaining a public road and in permitting such road to acquire an unsafe condition. Drawdy did not attach an affidavit of an expert to her complaint, as required by OCGA § 9-11-9.1 for actions alleging professional malpractice; however, Drawdy never claimed professional malpractice, only ordinary negligence. The DOT raised such failure as a defense in its answer.

On January 2, 1997, the DOT filed a motion for summary judgment, which was granted by the trial court. Even though Drawdy was still alleging only ordinary negligence in the repair and maintenance of the roadway, the trial court found that the action against the DOT constituted an action for professional malpractice, and that the failure of Drawdy to attach an affidavit as required by OCGA § 9-11-9.1 barred the complaint. It is from the trial court’s order granting summary judgment to the DOT that Drawdy appeals.

In her sole enumeration of error, Drawdy alleges that the trial court erred in granting the DOT’s motion for summary judgment. Drawdy argues that her claim is one for ordinary negligence in the repair and maintenance of the roadway and not for the negligent design of the roadway and, therefore, an affidavit of an expert pursuant to OCGA § 9-11-9.1 is not required.

A defendant, on a motion for summary judgment, cannot convert an action for ordinary negligence into an action for professional malpractice that would be controlled by OCGA § 9-11-9.1 by the presentation of an affidavit of an expert stating that the plaintiff’s claims were caused by professional malpractice. If such a procedure was allowed, a jury issue would always remain as to whether the cause of the accident was one of professional malpractice or ordinary negligence, as the weight and credibility of the expert’s testimony would be for jury determination. The trial court must decide as a matter of law if the negligence alleged by a plaintiff is, in fact, ordinary negligence or professional malpractice. See OCGA § 9-11-9.1; 9-11-12 (b) (6).

The DOT is not a professional, and “therefore, the affidavit requirement of OCGA § 9-11-9.1 does not automatically apply to any claim asserted against it. Rather, in cases such as this, the relevant inquiry is whether a particular claim is grounded upon professional malpractice, that is, an act or omission [which is a negligent deviation from a professional standard of care, established by professional and expert testimony and not known by the ordinary layperson] which constitutes malpractice. The affidavit requirement applies in cases involving claims against a . . . governmental entity when liability is based upon the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as professionals under OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24.” (Citations and punctuation omitted; emphasis in original.) Adams v. Coweta County, 208 Ga. App. 334, 335 (2) (430 SE2d 599) (1993); see also Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (424 SE2d 632) (1992); Razete v. Preferred Research, 197 Ga. App. 69 (397 SE2d 489) (1990); see generally S K Hand Tool Corp. v. Lowman, 223 Ga. App. 712 (479 SE2d 103) (1996) (as to the requirement for an affidavit in a product liability case). Therefore, since Drawdy is alleging claims only for ordinary negligence in repair and maintenance of the roadway, an affidavit of an expert pursuant to OCGA § 9-11-9.1 is not necessary.

However, on appeal, the grant of summary judgment must be affirmed if it is right for any reason. Orion Capital Partners, L.P. v. Westinghouse Elec. Corp., 223 Ga. App. 539, 543 (478 SE2d 382) (1996); Hanna v. McWilliams, 213 Ga. App. 648, 651 (446 SE2d 741) (1994). Therefore, this Court must determine if the trial court was correct in granting summary judgment to the DOT on Drawdy’s claims of ordinary negligence.

Turning to the facts of this case, the record shows that there had been five automobile accidents from hydroplaning on the causeway in 1987 in the vicinity of Back River Bridge within approximately one and one-half miles of each other. Only one of the accidents occurred on the same side of the bridge as Drawdy’s accident; the remaining four accidents occurred on the opposite end of the bridge. In support of its motion for summary judgment, the DOT submitted the affidavit of Craig C. Brack, who is a district engineer for the DOT. Brack stated that in 1988, the DOT, pursuant to a professional design change, redesigned a portion of the roadway which included the area where Drawdy’s accident occurred, and that such redesign changed the superelevation of the eastbound lane of the roadway and resulted in raising the elevation by approximately one foot from that of its original construction in 1986, which caused water to drain more rapidly from the roadway, specifically eliminating the pooling of water. Thus, in 1988, when Drawdy’s accident occurred, the roadway was substantially different than it was when it was originally designed in 1986. After the DOT completed the redesign of the roadway in 1988, there were no reported accidents in the vicinity of Back River Bridge caused by hydroplaning of a vehicle until Drawdy’s accident in 1993. It may be inferred that the excess water came to be on the roadway, not from a negligent design, but instead from a greater rainfall than normal.

Brack went on to state that in 1994, following notification of the DOT of Drawdy’s accident, the DOT performed a topographical survey by a registered land surveyor for the purpose of determining if the superelevation of the subject roadway matched the 1988 redesign. After reviewing the topographic survey, Brack testified that, in his professional opinion, the superelevation of the roadway that existed in 1994 was substantially the same as it was when it was redesigned and constructed in 1988. Thus, the DOT pierced an essential element of Drawdy’s complaint by showing that the superelevation of the roadway had not changed since it was redesigned in 1988, i.e., the roadway had no settling, holes, cracks, grooves or ruts in the surface, caused by the failure of DOT to properly repair or maintain the roadway. Therefore, the burden of production of evidence shifted to Drawdy to produce any evidence to controvert the testimony of DOT’s expert and thereby create a jury question as to DOT’s negligence. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Drawdy’s expert, Buck Beaver, is an accident investigator. He is not a road designer, professional engineer, or road contractor. In his affidavit, Beaver opined that Drawdy’s accident was caused by hydroplaning in “standing water.” He further opined that this was caused by a “defect in the construction of the road which allowed sufficient water to accumulate so that vehicles were caused to hydroplane and go out of control when travelling at a speed greater than 25 mph.” However, Beaver did not state any facts on which he based his opinion, and therefore, the opinions stated in his affidavit were mere speculation. See Johnson v. Srivastava, 199 Ga. App. 696 (405 SE2d 725) (1991).

Further, at his deposition, Beaver testified that he had never mapped the subject roadway; that he had never measured rain accumulation on the roadway; and that other than “eyeballing” the road in clear weather, he had not examined the roadway in any fashion to determine what defect, if any, existed which allowed standing water to accumulate. Beaver admitted that the accident report indicated there were no visible road defects. He simply testified that he thought there must be a low spot on the roadway which had allowed the rain water to pool. Beaver stated that he did not know if the problem was caused by the superelevation or from cupping or rutting of the roadway. He only stated that from his experience, roadways generally tend to settle or deteriorate over time due to traffic. Beaver further testified that he did not know if the condition of the roadway which existed prior to the 1988 redesign continued to exist at the time of the plaintiff’s accident. In fact, Beaver testified that, in his opinion, the question as to what the construction defect was and how it occurred would best be answered by a road designer. In short, Beaver’s testimony failed to show the existence of any facts which would establish a lack of maintenance or repair as the proximate cause of the accident.

Even though Beaver had looked at the highway in clear weather, he was unable to point to any defect in the roadway or to lack of repair and maintenance which caused water to pool. All of Beaver’s opinions are pure speculation, even when construing his affidavit and deposition testimony together. An expert cannot render an opinion of evidentiary value without personal knowledge of the facts or evidence of facts in the record to support a hypothetical question; otherwise, his opinion is pure speculation. Taylor v. State, 83 Ga. 647 (10 SE 442) (1889); Loper v. Drury, 211 Ga. App. 478 (440 SE2d 32) (1993); DuBois v. Ray, 177 Ga. App. 349 (339 SE2d 605) (1985); Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394 (224 SE2d 76) (1976); Zurich Ins. Co. v. Zerfass, 106 Ga. App. 714 (128 SE2d 75) (1962).

Decided September 2, 1997.

Clark & Clark, Fred S. Clark, for appellant.

Michael J. Bowers, Attorney General, C. Latain Kell, Senior Assistant Attorney General, Lisa S. Siegel, Assistant Attorney General, for appellee.

Had Beaver indicated from his personal inspection that, inter alia, there was a clogged storm drain; that from wear, time, and super heating of the sun, the asphalt petroleum distillate had leaked to the surface of the roadway, changing the coefficient of surface friction; that the roadway had begun to show rutting or cupping; or that such other deterioration defect existed which would allow water to pool, then there would have been sufficient factual evidence to create a material issue of fact as to whether the DOT had failed to properly maintain and repair the subject roadway. Drawdy’s reliance on the November 23, 1987 inter-department correspondence of the DOT is misplaced. This memorandum defines the superelevation defect in the subject roadway prior to its 1988 redesign.

As Drawdy failed to produce any evidence of lack of repair and maintenance of the roadway, no material issues of fact exist as to this element. Therefore, it was proper for the trial court to grant summary judgment to the DOT.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur in judgment only.


author: Ruffin, Judge.

text:
    A97A0904.
    WESLEY v. THE STATE.
    (491 SE2d 824)
   Ruffin, Judge.

Leon Wesley appeals his conviction on charges that he drove a vehicle under the influence of alcohol to the extent he was less safe to drive and that he failed to maintain his lane. Although he challenges the conviction on several grounds, we find no error and, for the following reasons, we affirm.

1. Wesley claims the court erred by allowing the officer to testify that he read Wesley the appropriate “implied consent” warning before he administered the Intoxilyzer 5000, which showed Wesley’s breath alcohol content to be .064 percent. Prior to introducing evidence of the Intoxilyzer results, the State was required to lay a foundation including proof that the proper implied consent warning was given. See Deckard v. State, 210 Ga. App. 421, 423 (436 SE2d 536) (1993). The officer testified he did not have in court his own copy of the implied consent “card” from which he read the warning, but that he always used “whichever one was in effect.” The prosecutor presented him with a copy of the appropriate implied consent warning in effect at the time of Wesley’s arrest, and the officer testified that, “the best [he] remember[ed],” he gave that very warning.

Although Wesley argues the officer’s vague testimony is insufficient to show he read the proper warning, we find no error. If the officer’s testimony was unclear or contradictory, those factors went to its weight and credibility but do not affect its sufficiency on appeal. Lee v. State, 188 Ga. App. 406 (4) (373 SE2d 28) (1988). “[Credibility as it relates to the admissibility of evidence is an issue for the trial court; a trial court’s findings as to credibility will be upheld on appeal unless clearly erroneous. [Cit.] The trial court’s implied finding that the foundation witness was credible was not clearly erroneous.” Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995).

2. Wesley enumerates as error the trial court’s failure to grant his motion for mistrial based on the admission of the Intoxilyzer results. The results were admitted with no objection other than that discussed in Division 1. At the close of the State’s evidence, however, Wesley’s counsel moved for mistrial, claiming his cross-examination of the officer had shown the officer did not “possess[ ] a valid permit issued by the Division of Forensic Sciences” to operate the machine, as required by OCGA § 40-6-392 (a) (1) (A). We find nothing to review, as the motion for mistrial was untimely. See Benjamin v. State, 211 Ga. App. 670, 672 (2) (440 SE2d 259) (1994) (motion for mistrial must be made “ ‘contemporaneously with the alleged misconduct’ ”).

3. Wesley also moved for and was denied a mistrial after the officer testified he requested Wesley submit to a blood sample, which he stated “would have not only been checked for alcohol but narcotics as well.” Wesley claims this testimony wrongly impugned his character by implying he was under the influence of drugs at the time the officer stopped him. The trial court denied the request for mistrial but instructed the jury, “the Defendant in this case is not charged in any way whatsoever with any kind of possession or use of drugs. Therefore, any testimony you hear concerning drugs you’ll simply disregard completely. . . .” Wesley claims these curative instructions were insufficient and argues the jury was so prejudiced by the statement that a mistrial was required.

Even if we assume the officer’s remarks, which amounted to no more than an expression of the officer’s suspicions, impugned Wesley’s character, we find no error. But see Coker v. State, 207 Ga. App. 482, 483 (2) (428 SE2d 578) (1993), in which this Court doubted that a witness had impugned an armed robbery defendant’s character by stating she called police because she was concerned the defendant was “dealing drugs” in a nearby parking lot. “The decision to give curative instructions to the jury rather than grant the mistrial request following the introduction of bad character evidence was within the discretion of the trial court and was not error. [Cit.]” Mitchell v. State, 222 Ga. App. 866, 868 (2) (476 SE2d 639) (1996). We find the court properly exercised its discretion by giving an appropriate curative instruction.

4. Wesley also argues the trial court improperly limited his cross-examination of the arresting officer. During direct examination, the officer testified that Wesley’s eyes were “glassy and a little bloodshot” the night of his arrest. To show that Wesley’s eyes “are always red and glassy,” defense counsel attempted to have Wesley approach the witness stand, where he planned to ask the officer if Wesley’s eyes “were similar to the way they were on the night in question.” The trial court denied counsel this opportunity.

“Every party has a right to a thorough and sifting cross-examination of witnesses called against him. [Cit.] However, the [proposed] conduct of [Wesley’s] counsel in this case [would have] exceeded the authorized scope of cross-examination. . . . [Wesley’s] counsel in essence [attempted to] inject[ ], during the course of cross-examination, independent non-testimonial evidence on the part of [Wesley] by [displaying] a . . . portion of [Wesley’s] body ... to the jury. . . . The [proposed] act at issue [would have] conveyed evidentiary information to the jury.” State v. Battaglia, 221 Ga. App. 283, 284 (1) (470 SE2d 755) (1996). In Battaglia, we determined the trial court did not err by declaring a mistrial when the defendant, who did not testify, lifted his shirt and displayed a hidden back brace to the jury. We held that “cross-examination may not be used as a vehicle to enable a party to present non-testimonial evidence without being subject to oath, or to subvert the ability of the opposing party to cross-examine the party [offering] such non-testimonial evidence.” Id. Here, although Wesley’s counsel had a valid interest in testing the officer’s ability to describe characteristics of Wesley’s eyes, the method by which defense counsel sought to do so would have allowed Wesley to give “non-testimonial” evidence without subjecting him to oath or cross-examination. Therefore, we find the trial court did not abuse its discretion by limiting this cross-examination.

5. Because Wesley challenges the sufficiency of the evidence supporting his DUI conviction, we review that evidence, and ¿11 inferences, in favor of the verdict and determine whether a rational trier of fact could have found Wesley guilty of DUI beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence showed the officer stopped Wesley’s truck after watching it weave back and forth across the lanes of travel. The officer, a member of a DeKalb County police DUI unit, noticed a moderate odor of alcohol on Wesley’s breath and observed his eyes were “kind of glassy and a little bloodshot.” When Wesley exited his truck, the officer noticed he used the side of the vehicle for support. The officer administered several field sobriety tests, as he had been trained to do. The horizontal gaze nystagmus test revealed Wesley’s eyes lacked “smooth pursüit” and exhibited a nystagmus prior to 45 degrees. Wesley also performed poorly on the “walk and turn” test, losing his balance and failing to walk “heel to toe” as instructed. A hand-held “Alco-Sensor” breath test registered positive for alcohol. The officer believed, based on these tests and on his experience and training, that Wesley was under the influence of alcohol to the extent it was less safe for him to drive. The Intoxilyzer 5000 results produced no inference of intoxication or sobriety, but were a factor to be considered by the jury in making its determination. See OCGA § 40-6-392 (b) (2); Hall v. State, 200 Ga. App. 585, 587 (2) (409 SE2d 221) (1991).

Decided September 3, 1997

Lee Sexton, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, W. Cliff Howard, Assistant Solicitors, for appellee.

We find that the officer’s opinion, backed by Wesley’s poor performance on field sobriety tests, his demonstrably poor driving, and the evidence of his alcohol consumption, allowed the jury to determine beyond a reasonable doubt that Wesley was under the influence of alcohol to the extent he was a less safe driver. See Parrish v. State, 216 Ga. App. 832, 833 (2) (456 SE2d 283) (1995).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Andrews, Chief Judge.

text:
    A97A0938.
    MINE CHEN et al. v. ALEXANDER TERRY ASSOCIATES, INC.
    (491 SE2d 834)
   Andrews, Chief Judge.

Alexander Terry Associates, Inc. (ATA) brought an action against three individual defendants, Mine Chen, Ya-Min Xie, and David Ogle, doing business as “R D Design f/k/a and a/k/a Royal Design, Inc.” alleging that the defendants owed ATA sales commissions due under a contract. The suit did not seek to impose liability on a corporate defendant but alleged that the individual defendants were personally liable as partners in a business trading under the name of R D Design, which was located in California and did business in Georgia. This appeal by the defendants below is taken from the trial court’s order entered pursuant to OCGA § 9-11-37 (b) (2) (C) striking an answer allegedly filed by the defendants and rendering judgment in favor of ATA for the defendants’ failure to comply with the court’s discovery order. The defendants also assert that the trial court erred by failing to grant their motion to dismiss for lack of personal jurisdiction and failure to join an indispensable party.

After the complaint was filed on May 19,1995, Chen was personally served in California on June 24, 1995, and Ogle was personally served in Georgia on July 6, 1995. On August 30, 1995, ATA moved for a default judgment against Chen and Ogle alleging that they had failed to answer the complaint. The trial court denied ATA’s motion for a default judgment because it concluded that a letter filed in the trial court on August 1, 1995, bearing an R D Design letterhead and signed by Elton Wu, an R D Design employee, sufficed as an answer to the suit on behalf of the defendants. Thereafter, ATA served interrogatories and requests for production of documents on the defendants. After the defendants failed to respond, ATA moved for an order compelling responses. On March 22, 1996, the trial court ordered the defendants to respond to the discovery within 15 days. After the defendants failed to comply with the trial court’s order, ATA moved for the trial court to sanction the defendants by striking the answer and rendering judgment in its favor by default pursuant to OCGA § 9-11-37.

On August 5, 1996, the defendants, represented by counsel, made a special appearance in the case moving for dismissal of the action on the basis that the trial court lacked personal jurisdiction over the non-resident defendants pursuant to OCGA § 9-11-12 (b) (2) and on the basis that an indispensable party was absent under OCGA § 9-11-19. On August 7, 1996, without ruling on the defendants’ dismissal motion, the trial court granted ATA’s motion, struck the answer the court previously ruled had been filed by the defendants, and entered a default judgment in favor of ATA.

First, we note that the letter mailed to the trial court from Elton Wu, a non-lawyer employee of R D Design, did not constitute an answer to the complaint by any of the individual defendants. “Only a duly licensed attorney may answer a complaint for [an individual] who does not appear pro se. OCGA § 15-19-51 (a).” Keith v. Alexander Underwriters General Agency, 219 Ga. App. 36, 38 (463 SE2d 732) (1995). Thus, the letter did not operate as an appearance by the defendants or as a waiver of any defenses. Id. at 38-39. Neither did the defendants’ failure to answer and engage in discovery after being served operate as a waiver of their right to assert lack of personal jurisdiction defenses by motion to open default, by motion to set aside ¿judgment, or by a subsequent collateral attack. See Hoesch America v. Dai Yang Metal Co., Ltd., 217 Ga. App. 845, 847-848 (459 SE2d 187) (1995). However, none of those procedures is at issue in this case.

Decided September 3, 1997.

F. Glenn Moffett, Jr., George R. Moss, for appellants.

Pursley, Howell, Lowery & Meeks, Roy H. Meeks, Jr., for appellee.

In this case, the defendants, while in default under OCGA § 9-11-55 (a), sought to assert a lack of personal jurisdiction defense, along with an indispensable party claim on August 5, 1996, long after the time had expired for asserting those defenses under OCGA § 9-11-12. Because the defendants remained in default, and the motion to dismiss was not timely brought under OCGA § 9-11-12, there was no error in the trial court’s refusal to grant or consider the motion. Stout v. Signate Holding, 184 Ga. App. 154 (361 SE2d 36) (1987); S. D. H. Co. v. Stewart, 135 Ga. App. 505, 508 (218 SE2d 268) (1975).

Although the trial court erred by entering a default judgment in favor of ATA pursuant to OCGA § 9-11-37, ATA was, nevertheless, entitled to the default judgment on the basis that the defendants failed to answer. Accordingly, we affirm the entry of the default judgment in favor of ATA under the right for any reason rule.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


text:
    A97A1194.
    JONES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (491 SE2d 830)
   Andrews, Chief Judge.

Gloria Jones’s minor child was insured under an automobile liability policy issued by State Farm Mutual Automobile Insurance Company covering injuries the child sustained in an automobile accident on or about October 9, 1993. After paying policy benefits for medical treatment rendered to the child immediately after the accident, State Farm refused to pay for medical treatment given to the child over five months after the accident on the basis that the subsequent treatment was not for injuries arising from the accident. On behalf of her child, Jones sued State Farm for breach of its contractual obligation to pay benefits under the policy, for a bad faith penalty and attorney fees under OCGA § 33-4-6, for invasion of privacy for unauthorized release of the child’s medical records, and for fraud and punitive damages.

State Farm denied the claims and moved for partial summary judgment and, pursuant to OCGA § 9-11-17 (a), moved for substitution of the real party in interest as plaintiff or for dismissal. The trial court granted summary judgment to State Farm on Jones’s claim for invasion of privacy, for damages pursuant to OCGA § 33-4-6, and for punitive damages. As to State Farm’s motion pursuant to OCGA § 9-11-17 (a), the trial court held that, because Jones had assigned the right to receive the State Farm insurance benefits to Dr. Hill, the chiropractor who rendered the subsequent medical treatment at issue, Dr. Hill rather than Jones was the real party in interest as to the remaining contract claim. Accordingly, the trial court dismissed the action for failure to substitute Dr. Hill as the real party in interest. The trial court also granted summary judgment, sua sponte, to State Farm on an allegation by Jones in her response to summary judgment that State Farm violated the Fair Business Practices Act.

On appeal, Jones claims the trial court erred by granting summary judgment to State Farm on her invasion of privacy claim and on her claim for damages pursuant to OCGA § 33-4-6. She also claims the trial court erred by dismissing her claim for benefits under the policy on grounds that she was not the real party in interest.

1. The trial court correctly granted summary judgment in favor of State Farm on Jones’s claim that State Farm invaded her child’s privacy by having the child’s medical records reviewed by an independent medical provider.

Jones sought payment of policy benefits by State Farm for medical care provided by Dr. Hill in the amount of $2,825. Dr. Hill sent medical bills to State Farm requesting payment and stated that the medical treatment given to the child was for injuries arising from the October 1993 automobile accident. In response to State Farm’s request for documentation to support the claim that the treated injuries arose from the covered accident, Dr. Hill sent State Farm the child’s medical records. Dr. Hill had permission from Jones to release the medical records to State Farm because Jones signed a document on behalf of her child authorizing Dr. Hill “to release any information pertinent to my case to any insurance company, adjuster or attorney to facilitate collection [of the medical bills].” Upon receipt of the medical records from Dr. Hill, State Farm sent them to International Healthcare Consultants, Inc. (IHC) for the purpose of being independently reviewed by an IHC chiropractor to determine if the treatment was related to injuries incurred by the child in the October 1993 accident.

We find no logic in Jones’s position that State Farm needed her permission to have the child’s medical records reviewed by an independent medical provider to determine if the medical treatment was for injuries covered by the insurance policy. When an insured claims that an insurer is obligated to pay for medical treatment allegedly covered under an insurance policy, the insured waives the right to privacy in the medical treatment records to the extent necessary for the insurer to conduct a reasonable review and investigation of the claim. See Orr v. Sievert, 162 Ga. App. 677, 679-680 (292 SE2d 548) (1982). As in the present case, this may include submission of the records by the insurer to an' independent medical provider for the purpose of determining whether or not the treatment was for a condition covered by the policy. Id.

2. Jones claims the trial court erred by dismissing her claim for benefits under the insurance policy. The trial court dismissed Jones’s claim against State Farm for payment of medical benefits under the policy on the basis that Jones was not the real party in interest on this claim and that Dr. Hill, as assignee of contractual benefits under the policy, was the real party in interest. In granting dismissal, the trial court held that “[t]he Plaintiff [Jones], as of this date, has failed to substitute Dr. Hill as the Real Party in Interest in the instant case.”

It is undisputed that Jones assigned contractual benefits under the insurance policy to Dr. Hill on March 11, 1994, prior to the date she filed her suit against State Farm on September 29, 1995. This assignment transferred the cause of action for the policy benefits to Dr. Hill and divested Jones of the right to bring the cause of action. Allianz Life Ins. Co. &c. v. Riedl, 264 Ga. 395, 396-398 (444 SE2d 736) (1994); Blue Cross & Blue Shield v. Bennett, 223 Ga. App. 291 (477 SE2d 442) (1996).

In response to State Farm’s motion to dismiss, Jones filed an affidavit regarding the assignment from Dr. Hill in which Hill stated in part that, “I determined that the irrevocable assignment would be relinquished . . . and I released Gloria Jones from said assignment.” Although the affidavit does not explicitly state that Dr. Hill reassigned contractual benefits under the policy to Jones or when, the clear import of the statement is that the cause of action for the policy benefits was reconveyed by Hill to Jones. Accordingly, when the trial court dismissed the cause of action for failure of Jones to substitute Dr. Hill as the real party in interest there was evidence that, at some point after the March 11,1994 assignment date, Dr. Hill relinquished his right to the cause of action for the policy benefits and returned the cause of action to Jones. It is not clear whether the alleged reassignment may have occurred before or after the cause of action for the benefits was filed by Jones on September 29, 1995. But even if Jones was not the real party in interest when the cause of action for benefits was filed by her, a subsequent reassignment of the cause of action from Dr. Hill to Jones would, at that point, have made Jones the real party in interest and allowed her, within a reasonable time after objection, to ratify the commencement of the action pursuant to OCGA § 9-11-17 (a). See Gordon v. Walker, 224 Ga. App. 861, 862 (482 SE2d 489) (1997).

Accordingly, to give effect to the liberal policies of the Civil Practice Act regarding pleadings and prosecution of actions by the real party in interest (see Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 538-539 (314 SE2d 903) (1984), and Dover Place Apts. v. A & M Plumbing & Heating Co., 255 Ga. 27, 28 (335 SE2d 113) (1985)), we reverse the dismissal of Jones’s cause of action for payment of benefits under the policy and remand the case for a hearing on this issue under the provisions of OCGA § 9-11-43 (b). The trial court shall determine whether or not there was a valid reassignment of the cause of action for policy benefits from Dr. Hill to Jones and, if so, whether it occurred prior to or subsequent to the commencement of the cause of action by Jones. If there was a valid reassignment from Hill to Jones subsequent to the filing of the suit by Jones, the trial court shall determine whether or not Jones complied with the requirements of OCGA § 9-11-17 (a) for ratification of the commencement of the action as the real party in interest. Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 752 (365 SE2d 494) (1988).

3. Jones claims the trial court erred by granting summary judgment in favor of State Farm on her claim seeking recovery of a bad faith penalty and attorney fees under OCGA § 33-4-6 for State Farm’s failure to pay policy benefits for the medical treatment.

Under OCGA § 33-4-6, an insurer is subject to imposition of a penalty and attorney fees if it refuses in bad faith to pay a covered loss “within 60 days after a demand has been made by the holder of the policy. . . .” To invoke the provisions of OCGA § 33-4-6, the policyholder is required to demand payment at least 60 days before filing suit for a bad faith penalty and attorney fees. Guarantee Reserve Life Ins. Co. &c. v. Norris, 219 Ga. 573 (134 SE2d 774) (1964).

In granting summary judgment to State Farm on this issue, the trial court found that Jones had no right to demand payment of damages under OCGA § 33-4-6 because, when Jones assigned the policy benefits to Dr. Hill, the doctor became the holder of the policy for the purpose of demanding payment of the damages under OCGA § 33-4-6. Bennett, supra at 292. In light of our remand in Division 2 for a hearing to determine if and when Dr. Hill reassigned the cause of action to Jones, this reasoning by the trial court was not a basis for granting summary judgment to State Farm.

Nevertheless, summary judgment on this issue was proper for another reason. “As a matter of law, bad faith penalties [and attorney fees] under [OCGA § 33-4-6] are not awardable if an insurer has a reasonable and probable cause for refusing to pay a claim. The advice of an independent medical examiner that the treatment furnished a claimant is not in fact necessary [treatment for injuries arising from the accident covered by the insurance policy], unless patently wrong based on facts timely brought to the insurer’s attention, provides a reasonable basis for an insurer’s denial of a claim for payment for such treatment.” Haezebrouck v. State Farm Mut. Auto. Ins. Co., 216 Ga. App. 809, 811 (455 SE2d 842) (1995); Colonial Life &c. Ins. Co. v. Donaldson, 172 Ga. App. 211, 212-213 (322 SE2d 510) (1984).

Decided September 3, 1997.

Albert C. Palmour, Jr., for appellant.

Tisinger, Tisinger, Vance & Greer, Richard G. Tisinger, Jr., Thomas E. Greer, for appellee.

After reviewing Dr. Hill’s medical records for treatment given to the child from March 1994 through December 1994, State Farm submitted the claim to IHC for review by an independent medical provider. The IHC chiropractor who reviewed the records gave an opinion to State Farm that there was no causal connection between the treatment and the accident. Based on this opinion, State Farm refused to pay the benefits, ánd Jones subsequently brought this action. Although Jones contested the IHC report by way of affidavits from Dr. Hill and other independent medical providers in response to State Farm’s motion for summary judgment, there is nothing indicating that State Farm had any information prior to initiation of the litigation that its refusal to pay based on the IHC opinion was unreasonable. Donaldson, supra. Accordingly, under the right for any reason rule, the trial court’s grant of sumpaary judgment to State Farm on this issue was proper.

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

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


text:
    A97A1423.
    JOHNSON et al. v. WATSON et al.
    (491 SE2d 827)
   Andrews, Chief Judge.

Sheila and Bill Johnson appeal from the trial court’s denial of their motion for new trial. The Johnsons brought an action against Tracy Watson and Vincente Cruz after the car Watson was driving rear-ended Sheila Johnson’s car while she Was stopped at an intersection. The trial court directed a verdict as to liability and the issue of damages was tried to a jury. The jury returned a verdict of $5,664.75 for Sheila Johnson and nothing to Bill Johnson on his loss of consortium claim.

On appeal, the Johnsons claim the verdicts are inconsistent, inadequate, and contrary to the evidence and also that the trial court erred when charging the jury and in refusing to admit a medical record. We disagree and affirm the judgment of the trial court.

1. First, the Johnsons claim the trial court erred in denying their motion for new trial because the verdicts were inadequate and contrary to the evidence. With regard to the amount of damages awarded, “[t]he general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors. (Cits.) Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to ‘shock the conscience.’ [Cits.]” Lee v. Britt, 200 Ga. App. 1, 2 (406 SE2d 535) (1991) (citing Cullen v. Timm, 184 Ga. App. 80, 82-83 (360 SE2d 745) (1987)).

Here, there was some controversy as to the amount of days Sheila Johnson missed from work, and whether some of the medical bills were for this accident, a previous one or a subsequent one. Also, the emergency room doctor testified that he found no sign of any injury when he examined Sheila Johnson after the accident, and did not refer her to another doctor for a follow-up visit. Moreover, Sheila Johnson admitted to lying under oath about the previous accident and the subsequent one.

Therefore, when the disputed special damages are subtracted from the total special damages claimed, the remainder does not exceed, and in fact is less than, the jury’s verdict. The trial court did not err in denying the motion for new trial on this issue. Williams v. Opriciu, 198 Ga. App. 663, 664 (402 SE2d 744) (1991).

2. In their next enumeration, the Johnsons claim the verdicts were inconsistent because Sheila Johnson was awarded $5,664.75 and Bill Johnson was awarded nothing on his claim for loss of consortium. “This court does recognize the rule that a consortium action is derivative and when it is tried along with the primary action, a jury cannot render inconsistent verdicts.” Johnson v. Loggins, 211 Ga. App. 265, 266 (438 SE2d 711) (1993); Gurly v. Hinson, 194 Ga. App. 673, 675 (391 SE2d 483) (1990). “However, in view of the evidence produced at trial, we find that the verdicts rendered are not inconsistent.” Id.

There was evidence at trial from which the jury could have concluded that Bill Johnson should recover nothing on his loss of consortium claim. From the evidence discussed above and also Sheila Johnson’s admission that no doctor ever placed any limitation on her activities, the jury could have found that Bill Johnson was not entitled to recover on his loss of consortium claim.

3. Next, the Johnsons contend the trial court erred in charging the jury on the issues left to be determined. The court charged the following: “In this case the court has directed a verdict on the issue of liability. In other words, the collision was the fault of the Defendant, Tracy Watson. The only issues left to be determined by you are whether the Plaintiffs injuries, Plaintiffs were injured [sic] as a result of the collision and if so, what is the amount of damages resulting therefrom.

“The Plaintiff has the burden of proof, which means that the plaintiff must prove whatever it takes to make out his or her case, except for any admissions by the Defendant. Plaintiff must prove his case by what is known as preponderance of the evidence, that is, evidence upon the issues involved in which, while not enough to wholly free the mind from any reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.”

The Johnsons contend that when the court directed a verdict as to liability it had already determined that Sheila Johnson was injured and the accident was the proximate cause of those injuries. Therefore, they claim the trial court erred in charging the jury that they were to determine whether Sheila Johnson was injured or not.

The only error was in the court’s use of the term “liability” when it meant “negligence.” Here, as in Harrison v. Feather, 211 Ga. App. 468 (439 SE2d 706) (1993), and Hughes v. Newell, 152 Ga. App. 618 (263 SE2d 505) (1979), the trial court should not have used the word “liability” when it was directing a verdict as to negligence only, “for to find ‘liability’ it contains both negligence and that this negligence was the proximate cause of the plaintiffs’ injuries or damages.” Harrison, supra at 469. It is clear from the evidence that negligence had been established, but whether this negligence was the proximate cause of Sheila Johnson’s injuries and the amount of damages if any, were decisions subject to proof. Harrison, supra at 469. The trial court did not err in charging the jury on proximate cause.

4. The Johnsons next contend the trial court erred in charging the jury they were “not to show favor or sympathy to one party or the other.” The Johnsons cite to no authority, nor do we find any, that supports their proposition that it was error to give this pattern charge to the jury. This enumeration of error is without merit.

5. The Johnsons also claim the trial court erred in charging the jury on expert witnesses. The charge complained of is the pattern charge which defines expert witnesses and then states: ‘You are not required to accept the testimony of any witness, expert or otherwise. Testimony of an expert, like that of all witnesses, is to be given only such weight and credit as you think it is properly entitled to receive.” Again, the Johnsons cite to no authority on point in support of their contention that the trial court erred in giving this charge. We find no error.

Decided September 3, 1997

L. B. Kent, for appellants.

Self Mullins, Robinson, Marchetti & Kamensky, Ronald W. Self, for appellees.

6. In their final enumeration, the Johnsons contend the trial court erred in refusing to allow them to introduce a copy of the emergency room medical record showing that the emergency room doctor prescribed Tylenol #3 for Sheila after the accident. The doctor, who was called as a defense witness, .could not remember prescribing any painkiller or other medicine for Sheila Johnson. The day after the emergency room physician testified, the Johnsons’ counsel attempted to introduce the emergency room medical record to show that the doctor did prescribe a painkiller. Opposing counsel objected, claiming this was a surprise because the record had never been produced in response to interrogatories. Counsel also objected because the John-sons had already called the emergency room doctor to testify and failed to introduce the records while the doctor was on the stand. Accordingly, there would be no opportunity to cross-examine on this issue.

Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and this Court will not interfere with the trial court’s ruling absent an abuse of that discretion. State Farm Mut. Auto. Ins. Co. v. Drury, 222 Ga. App. 196, 200 (474 SE2d 64) (1996). The trial court, in its discretion, may exclude evidence which was not produced prior to trial and therefore is a “surprise” to the opposing party. Hanna &c. Enterprises v. Alterman Foods, 156 Ga. App. 376, 378-379 (274 SE2d 761) (1980). The trial court did not abuse its discretion in refusing to admit the medical record.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Ruffin, Judge. Judge Harold R. Banke,

text:
    A97A0888.
    GOSS BROTHERS TRUCKING et al. v. ASHLEY.
    (492 SE2d 7)
   Ruffin, Judge.

Regina Ashley was involved in an automobile collision with a tractor-trailer owned by Goss Brothers Trucking (“Goss”). Ashley brought this personal injury action against Goss, its driver, and, pursuant to OCGA § 46-7-12 (e), Goss’ insurer, Canal Insurance Company (“Canal”). A jury heard evidence of Ashley’s injuries and damages, which included a broken sternum and over $17,000 in medical bills, and returned a verdict against the defendants in the amount of $107,000. The defendants appeal the judgment entered on that verdict. Because we find the trial court should have granted a mistrial when Ashley’s attorney presented evidence of the limits of Goss’ insurance policy, we reverse and remand for a new trial.

1. The grant of a mistrial is within the discretion of the trial court, and a mistrial is required “only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court.” (Punctuation omitted.) Dubose v. Ross, 222 Ga. App. 99, 100 (473 SE2d 179) (1996). Here, Ashley’s attorney cross-examinined one of the owners of Goss Trucking and established that Goss had a liability insurance policy with Canal. Leading the witness, Ashley’s attorney then asked: “And that policy is a one million dollar policy?” Before the witness replied, Goss’ attorney objected and moved for a mistrial. The trial court refused to grant a mistrial, but did caution the jury: “Ladies and gentlemen, I want to give you some instructions at this point. As you are aware, a question was asked by plaintiff’s counsel as to the amount of liability insurance coverage that was carried by Goss Brothers Trucking. ... In this particular type of case, . . . [the fact of insurance] is admissible. . . . But the amount of insurance that is carried by Goss Brothers Trucking is completely irrelevant to this case, has nothing to do with it. And as I say, no answer has been given concerning that amount. You should completely disregard the question itself and you should not, in making your deliberations in this case, be influenced in any way by what you may speculate to be the amount of liability insurance coverage carried by [Goss]. That . . . has absolutely nothing to do with this case and you should disregard it.” Goss timely renewed its motion for mistrial.

Ashley’s leading question was certainly error and grounds for a mistrial. As the Supreme Court held in Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746, 747 (272 SE2d 702) (1980), the law allows evidence in a direct action that the defendant has liability insurance; however, the amount of that insurance remains inadmissible because of its prejudicial nature. Id. at 747. See also Sweat v. Burke, 156 Ga. App. 637 (276 SE2d 51) (1980) (in direct action case, admission of evidence showing policy limits required reversal of judgment for plaintiff); Early County v. Fincher, 184 Ga. App. 47, 48 (1) (360 SE2d 602) (1987) (where evidence of insurance is admissible, limits of policy should be excluded to avoid “probable prejudice” which would result). It is settled law in this State that the erroneous injection of “insurance” into a tort case is grounds for mistrial “[b]ecause of its irrelevanee and prejudicial value. . . . Such evidence is highly prejudicial and it can influence the entire case, no matter which side attempts to introduce it.” Denton v. Con-Way Southern Express, 261 Ga. 41, 42 (402 SE2d 269) (1991), disapproved on other grounds, Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992). “ ‘(T)he strict exclusion of [evidence of insurance] is due . . . chiefly to the assumption that a knowledge of the fact of insurance against liability will motivate the jury to be reckless in awarding damages to be paid, not by the defendant, but by a supposedly well-pursed and heartless insurance company that has already been paid for taking the risk.’ [Cit.]” Denton, supra at 42-43, n. 2.

Ashley’s “question” also injected into the case Goss’ wealth and ability to pay, an equally improper and prejudicial area of inquiry. See Adams v. Camp Harmony Assn., 190 Ga. App. 506, 508 (379 SE2d 407) (1989). “[N]either the wealth of the plaintiff nor the defendant is relevant. A man’s treatment before the bar of Justice should not vary with his financial condition.” (Citation and punctuation omitted.) Denton, supra at 42.

We believe a mistrial was required in this case. In Dubose, supra, the Court found that strong cautionary instructions cured the erroneous mention of insurance. But here, the attorney’s question all but informed the jury that Goss could pay and that a verdict in excess of $100,000 would be but a fraction of its policy limits. The wrongful mention of how much Goss could pay aligns this case with Adams, supra. There, the defendant’s attorney argued in closing that if the jury awarded damages to the plaintiff, the defendant would no longer be able to afford to conduct his charitable work. Recognizing the highly prejudicial nature of this argument, we held that “no amount of instruction by the trial judge” could cure the inflammatory comments and found a new trial was required despite the trial court’s curative instructions. Adams, supra at 508.

Ashley argues, and the trial court found, that no mistrial was required because the improper question was never answered. In Thomas Milling Co. v. Branch, 118 Ga. App. 857, 858 (1) (165 SE2d 907) (1968), however, this Court found a mistrial warranted where an attorney did nothing more than tell the jury in his opening statement, “ ‘[flor our own reasons, we are suing for $99,995. We kept it under the $100,000 for our own reasons.’ ” Combined with the qualification of the jury in voir dire regarding an insurance company, the attorney’s statement made it clear that the policy limits were $100,000. Here, similarly, the “question” propounded by Ashley’s attorney amounted to a statement of the policy limits, and considering the extent of harm which results from such a statement, the trial court’s efforts to cure the error were admirable but insufficient. For these reasons, we reverse the trial court’s judgment and remand this case for a new trial.

2. Goss’ second enumeration of error contends the trial court erred by excluding from evidence several pictures of Ashley’s car. Goss claims these photos were relevant to show that Ashley’s car was damaged only slightly in the collision. The trial court excluded the photos from evidence because they were not listed as evidence in the pre-trial order and because Goss’ attorneys did not deliver the photos to Ashley’s attorney until the weekend before trial. Under those circumstances, the court found this undisclosed evidence unfairly prejudiced Ashley’s ability to present her case. It appears Goss’ attorneys had erroneously believed no such pictures existed, but obtained the pictures and delivered them to Ashley’s counsel as soon as they learned of the photos.

Although a pre-trial order “ ‘should not be construed to preclude a party from introducing evidence relating to his case if less harsh sanctions are appropriate^ a]t the same time broad discretion is reposed in the trial court whose decision will not be disturbed except in cases demonstrating a clear abuse of that discretion.’ [Cit.]” Nat. Old Line Ins. Co. v. Lane, 172 Ga. App. 519, 523 (5) (323 SE2d 707) (1984). We find no abuse of discretion, but on remand the trial court is free to re-examine this issue in light of the fact that these photographs have been available to plaintiff’s counsel since the first trial.

Judgment reversed.

Andrews, C. J., Birdsong, P. J, Johnson and Blackburn, JJ, concur. McMurray, P. J, and Senior Appellate Judge Harold R. Banke dissent.

Judge Harold R. Banke,

dissenting.

I respectfully dissent because I cannot agree that the trial court manifestly abused its discretion in denying Goss’ motion for mistrial. See Ga. Power Co. v. Hinson, 179 Ga. App. 263, 270 (7) (346 SE2d 73) (1986). Appellate courts should not interfere with the exercise of discretion unless wrong or oppression has resulted from an abuse of its use. Dubose v. Ross, 222 Ga. App. 99, 100 (473 SE2d 179) (1996).

Ashley sued Goss as a common carrier and instituted a direct action against Canal Insurance Company (“Canal”) under OCGA § 46-7-12 (e). The fact that liability insurance existed had to be obvious to the jury inasmuch as Canal was a named party defendant. As we have previously observed, “ ‘[a]ny juror who doesn’t know that there is liability insurance in [a case of a motor vehicle collision]. . . should probably be excused by virtue of the fact that he or she is an idiot.’ ” Smith v. Crump, 223 Ga. App. 52, 55 (1) (476 SE2d 817) (1996).

In this case, Randy Goss’ unobjected-to testimony made abundantly clear to the jury: (1) that Goss had purchased a liability policy from Canal, and (2) that the policy covered the company’s trucks and drivers. Compare Dubose, 222 Ga. App. at 100 (liability insurance improperly injected in trial). The only remaining uncertainty related to the amount of the applicable policy.

Then Ashley’s counsel improperly asked, “And that policy is a one million dollar policy?” This question was never answered. After Goss promptly objected, the trial recessed, and a discussion ensued. Ultimately, the trial court determined that a mistrial was not required and opted to provide curative instructions instead. After the court explained to the jury that Canal was a party defendant, it cautioned, “[i]n this particular type of case in which this truck was involved and due to the nature of the business of Goss Brothers Trucking Company, it is admissible [sic] to file a direct action against a liability insurance company naming it as a party defendant in the case. That is permitted. But the amount of insurance that is carried by Goss Brothers Trucking is completely irrelevant to this case, has nothing to do with it. And as I say, no answer has been given concerning that amount. You should completely disregard the question itself and you should not, in making your deliberations in this case, be influenced in any way by what you may speculate to be the amount of liability insurance coverage carried by Goss Brothers Trucking. That, again, as I say, has absolutely nothing to do with this case and you should disregard it.”

Improper injection of insurance evidence does not automatically require reversal. Getz Terminators &c. v. Towe, 193 Ga. App. 268, 271 (1) (387 SE2d 338) (1989). “ Tt is only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial (reversal) should be granted.’ [Cit.]” (Emphasis in original.) Id. at 271 (1). Here, there was no prejudicial testimony because the trial court did not permit the improper question to be answered. In any event, an instruction to a jury to disregard evidence is tantamount to an exclusion. Locke v. Vonalt, 189 Ga. App. 783, 786 (3) (377 SE2d 696) (1989).

Notwithstanding the majority’s contention to the contrary, Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746 (272 SE2d 702) (1980), neither demands nor authorizes a different result. In Davalos, the trial court erroneously admitted evidence of the policy limits over objection. Id. Here, evidence of the policy limits was specifically excluded, and the jury was expressly admonished not to speculate as to that amount. The jury was further instructed that it was to consider such amount as irrelevant when deliberating. Where, as here, the error is remedied by curative instruction, no mistrial is required and the instructions were sufficient to purge any error which might have occurred. Locke, 189 Ga. App. at 786 (3).

Moreover, the record fails to show that the jury improperly considered the policy limits and that Goss was thereby prejudiced or oppressed. Ashley proved she had incurred $17,455.36 in medical expenses. She testified about her lost wages, impaired work ability, and current constant stabbing pain in her chest. Her treating physician of almost two years testified that he considered her injuries to be permanent and painful. He also described her physical limitations, her inability to work, her need for continuing medical treatment and her likely future pain and suffering. Her physician estimated that the therapy she needed for pain management would likely cost $45,000 to $50,000 or more. He testified that her monthly prescription bill was about $150. The amount of the judgment, $107,000, supports a reasonable inference that the jury based its verdict on the evidence of Ashley’s damages and adhered to the court’s cautionary instructions. See Tarleton v. Griffin Fed. Savings Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (appellant must show harm and error to prevail). Under these facts, no harm to Goss was shown.

Nor can I agree that the unanswered question about the policy limit injected Goss’ wealth into the case. The majority does not cite to a scintilla of evidence in the record which shows that Goss’ financial condition was disclosed to the jury. Even assuming that Goss had obtained a $1 million policy, such fact, even if true, would not prove that Goss’ business was lucrative, profitable, or flourishing, just that Goss was law-abiding and prudent by obtaining substantial liability insurance protection. Compare Adams v. Camp Harmony Assn., 190 Ga. App. 506, 507 (1) (379 SE2d 407) (1989) (impassioned remarks of defense counsel impermissibly prejudiced jurors by eliciting sympathy that camp would have to be shut down and that the future of “fine little boys” would be obliterated if plaintiffs prevailed).

I believe that the court’s carefully crafted curative instruction obviated the need for a mistrial. See Towe, 193 Ga. App. at 271 (1). To hold otherwise is to conclude that any question about insurance policy limits, even though not answered, automatically necessitates a mistrial. This is plainly not the law. Dubose, 222 Ga. App. at 100. To follow the majority’s mechanistic approach is to completely divest a trial court of its right to exercise discretion. Such an approach invites the possibility of abuse, where a savvy attorney who perceives the case is proceeding poorly could strategically elect to ask the forbidden question to trigger an automatic mistrial.

Having found no evidence of a manifest abuse of discretion in the trial court’s use of a proper and complete curative instruction, I must respectfully dissent. See id.

Decided August 21, 1997

Reconsideration denied September 4, 1997

McNatt, Greene & Thompson, Hugh B. McNatt, Richard S. Thompson, for appellants.

Salter & Shook, Mitchell M. Shook, Susan S. Shook, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

       Colloquy between defense counsel and the court indicates that the limits were actually $750,000, rather than $1 million.


author: Judge Harold R. Banke.

text:
    A97A1027.
    JAMESTOWN ASSOCIATES v. FULTON COUNTY BOARD OF TAX ASSESSORS.
    (492 SE2d 1)
   Judge Harold R. Banke.

The following salient facts are not in dispute. On July 24, 1991, Jamestown Associates (“Jamestown”) filed suit against the City of Atlanta (“City”) and the City of College Park asserting that the flight operations of Hartsfield International Airport had so severely damaged the economic use and value of its apartment complex as to constitute inverse condemnation and a taking. Several years later, Jamestown and the City entered into a settlement agreement in which the City agreed to pay $1,175,000 in exchange for a deed to the property. On December 30,1994, a real estate closing occurred pursuant to the settlement and consent judgment, at which time the City purchased, received a deed, and took title to the subject property from Jamestown. At the closing, Jamestown, under protest, paid the ad valorem taxes for 1991 through 1994 to Fulton County.

Jamestown filed the underlying action to appeal from decisions of the Fulton County Board of Equalization with regard to the fair market value established by the Fulton County Board of Assessors (“Board”) for Jamestown Court Apartments for the tax years in question and for a review of the issue of taxability. Prior to trial, the parties agreed to the amount of taxes and agreed to submit the issue of taxability to the court. Jamestown contended that because its property had been constructively taken, ownership vested in the City, and it owed no taxes for the tax years in question. The trial court rejected this argument. Determining that the City did not obtain title to the subject property until December 1994, the trial court held that no legal transfer of title took place until that date. The trial court held that because Jamestown was the legal owner of record of the property for 1991-1994, Jamestown was properly assessed by Fulton County for the ad valorem taxes at issue. Enumerating one error, Jamestown appeals. Held:

Jamestown contends that the trial court erred in finding that the date of taking (the date when it filed its inverse condemnation suit) was not the date on which the property was equitably converted and on which the title to the property was transferred to the City. Jamestown claims that as of July 24, 1991, the City had equitably converted the property and had become the property owner, absolving Jamestown of liability for property taxes. Jamestown contends that its settlement with the City constituted an explicit acknowledgment by the City that Jamestown’s property had been taken as of the date the complaint was filed. We disagree. It is undisputed that the legal transfer of the title to the real property at issue occurred on December 30, 1994. Therefore, in the absence of legal authority to the contrary, Jamestown continued to be the owner until that date. See OCGA §§ 48-5-9; 48-5-10. (Ad valorem taxes upon real property are assessed upon the owner of record of the property as of January 1 of each tax year.) In fact, the record shows that Jamestown, as the owner, pursued its legal right to appeal the assessments for each of these years. The record further discloses that although the apartment complex had a high vacancy rate, Jamestown continued to operate these apartments during the tax years in question. The fact that the settlement required Jamestown to deliver a deed of conveyance to the City further underscores Jamestown’s continued ownership until it conveyed the property to the City.

Nor does the record support Jamestown’s contention that its settlement with the City constituted an “explicit acknowledgment” that the property had been taken by the City on the date the complaint was filed. The consent judgment did not address or make any findings as to inverse condemnation, damages, or a taking.

Jamestown failed to offer any Georgia authority showing that by filing an action based on inverse condemnation, legal title vested retroactively in the City. Jamestown’s effort to offer foreign authority for that theory is unpersuasive, as the cases it cites involve condemnation actions with dates of taking which were either stipulated to or involve undisputed and complete takings on a date certain. In the absence of any applicable authority to the contrary, we find that the trial court correctly determined that Jamestown remained the legal owner of the real property until the title was formally transferred to the City.

Decided August 18, 1997

Reconsideration denied September 4, 1997.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellant.

Carothers & Mitchell, Richard A. Carothers, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       Even assuming arguendo that the City became the property owner on July 24, 1991, Jamestown would still be liable for some or all of the 1991 ad valorem taxes because it was the owner of record as of January 1.


author: Johnson, Judge.

text:
    A97A1320.
    HILL v. THE STATE.
    (492 SE2d 5)
   Johnson, Judge.

A jury found Edgar Hill guilty of armed robbery and kidnapping. He appeals from the convictions entered on the verdict and the denial of his motion for new trial.

Viewed in the light most favorable to the verdict, the evidence shows that Hill and two or three other men approached Latrina James as she walked toward her apartment with her two children and younger brother. Hill pointed a gun at them and told James to open her door and go inside. Once inside, Hill ordered James to lie on the floor and asked her if she had any money. When she responded that her money was in her purse, Hill took the purse. He then searched her bedroom while another man held a gun to her head. James’ next-door neighbor had called police when she saw James confronted outside of her apartment. Police officers arrived in time for one of them to see Hill running out of the back of the apartment holding a plastic bag and a purse. The officer ordered Hill to stop, but he kept running until other officers tackled him in the street. The plastic bag contained over $1,100 in cash.

1. Hill contends his trial counsel was ineffective because she failed to discuss with him the possibility of submitting the lesser included offense of robbery by intimidation to the jury. See OCGA §§ 16-8-40 (a); 16-8-41 (a). Hill claims that the jury could have found from the evidence that he committed the lesser included offense since police did not see him carrying a gun or recover a gun when he was captured. Hill’s trial counsel did not testify at the hearing on the motion for new trial.

Although it is critically important for defense counsel in a jury trial to consult fully with the defendant before deciding whether to request a charge on lesser included offenses, counsel’s failure to so consult does not necessarily constitute ineffective assistance. Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360) (1993). Rather, we must consider the effect of counsel’s failure to discuss the matter with the defendant. Id.

Robbery by intimidation occurs when a person, with intent to commit theft, takes property of another from the person or in the person’s immediate presence by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury. See OCGA § 16-8-40 (a) (2). Armed robbery occurs when a person, with intent to commit theft, takes property of another from the person or in the person’s immediate presence by use of an offensive weapon; robbery by intimidation is a lesser included offense of armed robbery. See OCGA § 16-8-41 (a).

We fail to see how counsel’s failure to discuss the lesser included offense of robbery by intimidation had any effect on the outcome of the trial. Although robbery by intimidation is a lesser included offense of armed robbery, it is not error in an armed robbery case to fail to charge on robbery by intimidation where there is evidence of robbery by use of an offensive weapon, but no evidence of robbery by intimidation. Welborn v. State, 236 Ga. 319, 320 (2) (223 SE2d 698) (1976). The record in this case contains no evidence of robbery by intimidation. Each witness to the encounter, other than Hill, testified that the assailant (or assailants) pointed a gun (or guns) at James or a member of her family. The fact that no gun was seen or recovered by police is not evidence authorizing a charge on a lesser included offense. See Coker v. State, 207 Ga. App. 482, 484 (4) (428 SE2d 578) (1993). The state’s evidence would require a verdict of guilty of armed robbery.

Hill’s testimony, if believed, would not support a conviction of robbery by intimidation but would require an acquittal. This is because Hill maintained that James willingly gave him the plastic bag. Hill testified that two weeks earlier he paid James and her boyfriend $700 in advance for cocaine, but they had not delivered the drugs as promised. He visited James to ask her either to give him the drugs or return his money. Hill testified that he was not angry, that he talked to James in a civil manner and told her he was not there to argue or fight, just to get his drugs or money. He said James unlocked her door, went in the kitchen, pulled out a plastic bag, and handed it to him. Hill denied robbing or using any force against James. Thus, there was no evidence that Hill, intending to commit theft, threatened, coerced, or placed James in immediate fear of serious bodily injury.

Because there was no evidence presented which would establish robbery by intimidation, it was not error to fail to charge on this lesser included offense. See generally Thomas v. State, 226 Ga. App. 441, 444 (8) (487 SE2d 75) (1997); Teague v. State, 169 Ga. App. 285, 287 (3) (312 SE2d 818) (1983). Accordingly, counsel was not ineffective in failing to request such a charge. See generally Leggett v. State, 241 Ga. 237, 239 (244 SE2d 847) (1978). It also follows that Hill suffered no adverse consequences as a result of his attorney’s failure to discuss with him the possibility of requesting a charge on robbery by intimidation.

We point out that the decision of whether to seek the submission of a lesser included offense “is often based on legal complexities only the most sophisticated client could comprehend, not unlike the tactical decisions involved regarding the assertion of technical defenses. [Cit.]” Van Alstine, supra at 3. Tactical decisions do not equate with ineffective assistance of counsel. Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995). Hill has failed to overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. See Green v. State, 218 Ga. App. 648, 651 (3) (b) (463 SE2d 133) (1995).

2. Hill argues the trial court broadened the indictment by instructing the jury that armed robbery is committed through the use of “an offensive weapon” when the indictment specifically charged him with using “a pistol, an offensive weapon.”

“It is error to charge the jury that a crime may be committed by alternative methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.” (Citations and punctuation omitted.) Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992). There is no reasonable possibility that the jury convicted Hill for committing an armed robbery by use of an offensive weapon other than a pistol. The victim, her neighbor, and her brother all testified that they saw a gun. There was no testimony that any other type of weapon was used to commit the armed robbery. Under these circumstances, there was no fatal variance, and any possible error resulting from the trial court’s use of the term, “an offensive weapon,” rather than “a pistol” is harmless. See generally Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987). Moreover, the trial court sent the indictment out with the jury so they could read the specific charges themselves. There was no reversible error. See Abreu v. State, 206 Ga. App. 361, 362 (1) (425 SE2d 331) (1992).

3. Hill asserts on appeal that he was denied a separate determination of guilt on each count in the indictment because the trial court charged the jury that it would be authorized to return a guilty verdict if it found Hill guilty of either of the crimes. At trial, however, when the court asked Hill’s attorney if she had any exception to the charge, counsel responded, “I do not, your honor.” Therefore, this enumeration was waived. See Tibbs v. State, 211 Ga. App. 250, 252 (3) (438 SE2d 706) (1993). In any event, we have considered the court’s instructions as a whole and find no error. See generally Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987).

Decided August 19, 1997

Reconsideration denied September 4, 1997.

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Charles E. Rooks, Juliette O. W. Scales, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A1826.
    ROBERTS v. CHAPMAN.
    (492 SE2d 244)
   Johnson, Judge.

Cheryl Roberts, in her capacity as trustee of the Trust for Ashleigh Renee Roberts (the “Trust”), sued Tommy Chapman asserting, primarily, he breached an oral agreement to enter into a contract for an exchange of real property. Chapman answered the suit and filed a counterclaim claiming trespass. Before the case was submitted to the jury, the trial judge directed a verdict in favor of Chapman on all of Roberts’ claims. The jury returned a verdict in favor of Chapman on his counterclaims, awarding him $6,900 on his trespass claim, $6,733 for attorney fees and expenses of litigation and $25,000 in punitive damages. The trial court entered judgment on the jury’s verdict, modifying the award of attorney fees. Roberts appeals.

Briefly, the evidence introduced at trial viewed to support the jury’s verdict is as follows: John Roberts, on behalf of the Trust, purchased land near Lake Lanier adjacent to land owned by Tommy Chapman. Shortly thereafter, the Robertses began cutting a road and constructing a house. Chapman informed John Roberts that a portion of the house was on his property. Roberts acknowledged that the house was over the line and suggested that they “swap out” some land, contending that run-off from a dam which Chapman had constructed was coming onto another portion of the property owned by the Trust. Chapman expressed some reservations about an exchange because his property was in a tax program, and Roberts offered to pay any penalty which Chapman might incur. Chapman told Roberts that he would investigate the tax implications and consider the issue, but advised Roberts that until everything had been settled, they were to stop construction. Despite this conversation, the Robertses proceeded to pour a concrete foundation and basement walls and install a power transformer on the property. When the land swap was not consummated, Cheryl Roberts, on behalf of the Trust, initiated this suit, asserting Chapman had breached his agreement to trade out property.

1. Roberts asserts the trial court erred in denying her motion for directed verdict on Chapman’s counterclaim for trespass, contending that Chapman failed to establish title to the property upon which he alleged the Trust had encroached. “A motion for directed verdict is proper where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test.” (Citation and punctuation omitted.) Hanover Credit Corp. v. Datamatx, 226 Ga. App. 12, 13 (485 SE2d 571) (1997). At trial, Chapman introduced his deed, the plat referred to in his deed, and the testimony of an expert witness to establish title to his property. He also introduced an unrecorded plat prepared by surveyors hired by the Robertses clearly showing that the foundation of the house extended over the property line. Chapman also testified that in 1993 he showed John Roberts the property line, noting that it was marked on the trees with red paint and hash marks. And, in a letter introduced by Roberts dated October 12, 1995, John Roberts admitted to Chapman’s attorney that a portion of the house is on Chapman’s property.

Roberts argues vehemently that the boundary lines as set forth in various deeds create an ambiguity. That may well be. However, “[t]he question of the sufficiency of the description of property in a[n instrument] is one of law, for the court; that of the identity of the property [described] is one of fact, to be decided by the jury.” (Citations and punctuation omitted.) Bank of Cumming v. Chapman, 245 Ga. 261 (264 SE2d 201) (1980). Because there was evidence before the jury supporting Chapman’s claim of ownership of the property upon which the Trust encroached, the trial court did not err in denying the motion for a directed verdict on that issue. See Hazlip v. Morris, 242 Ga. 7, 8 (247 SE2d 747) (1978); Outdoor Systems v. Woodson, 221 Ga. App. 901 (1) (473 SE2d 204) (1996).

2. Roberts also argues that the trial court erred in refusing to give her Request to Charge No. 15 to the jury. The charge had two parts. The first part of the requested charge explained who has the burden of proving an encroachment and stated that a claimant must show title to that portion of the property upon which the trespass is alleged. Because these principles were given to the jury elsewhere in the charge, the refusal to charge them was not error. See Mattox v. MARTA, 200 Ga. App. 697, 699 (2) (409 SE2d 267) (1991). Roberts also wanted the jury to be charged as follows: “When the [claimant of a trespass] relies on possession alone as a basis of recovery, it must be actual possession of that portion of the tract upon which an alleged wrong is committed.” “If any portion of a requested charge is inapt, incorrect, misleading, confusing, argumentative, not precisely adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” (Citations, punctuation and emphasis omitted.) Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2) (a) (441 SE2d 453) (1994). In this case Chapman was not relying on possession alone as a basis of recovery, but introduced evidence regarding documentary title. Because the charge was not authorized by the evidence presented at trial, the trial court did not err in refusing to give Roberts’ Request to Charge No. 15.

3. There is no merit to Roberts’ disingenuous and totally unsupported argument that the trial court erred in failing to limit punitive damages to the amount sought in the pre-trial order. The pre-trial order did not specify an amount being sought in connection with the claim for punitive damages, and therefore, Roberts asserts the trial court erred in allowing a punitive damages verdict to exceed zero. In Georgia, the amount of punitive damages to be awarded, if any, is determined according to the facts of a particular case as evaluated in the enlightened conscience of a fair and impartial jury. Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 763 (5) (b) (386 SE2d 120) (1989) (judgment reinstated on remand, 261 Ga. 613 (409 SE2d 501) (1991)). The jury awarded punitive damages in the amount of $25,000 to Chapman. The amount of the award, contrary to Roberts’ argument, was strictly within their discretion. The award, having been subsequently approved by the trial court will not be disturbed on appeal unless it is “so excessive or inadequate as to shock the judicial conscience,” and this assertion has not been made in this appeal. (Citations and punctuation omitted.) Clarke v. Cotton, 207 Ga. App. 883 (1) (429 SE2d 291) (1993).

Decided August 22, 1997

Reconsideration denied September 4, 1997

Stewart, Melvin & Frost, Frank Armstrong III, for appellant.

Cheryl W. Roberts, pro se.

William S. Hardman, for appellee.

Likewise, Roberts argues that Chapman is not entitled to recover punitive damages because he is not entitled to recover on his substantive claim of trespass. Inasmuch as this argument exceeds the scope of her enumerated error, it need not be addressed. See Jabaley v. Jabaley, 208 Ga. App. 179, 180 (2) (430 SE2d 119) (1993). In any event, in light of our holding in Division 1 above, this argument is without merit.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

       Considerable evidence was presented at trial regarding the cash purchase of this property from Madge Howser, who has lived on a portion of the property since-1918, and various irregularities in both the execution of the deed and preparation and filing of the transfer tax statement. Except to show that the lack of formalities observed in .the transaction may bear on the credibility of John Roberts, who had a good deal of professional experience in real, estate matters, these issues are not relevant to any of the issues raised on appeal.

       Interestingly, in both Roberts’ brief and reply brief, she acknowledges that Chapman relied on title rather than actual possession in proving ownership.


text:
    A97A1949.
    DOUGLAS v. THE STATE.
    (491 SE2d 821)
   Eldridge, Judge.

Appellant Jose Fernando Douglas appeals his August 29, 1996 conviction for trafficking in cocaine. We affirm.

On March 28, 1995, appellant was riding as a passenger in a vehicle he owned, but which was being driven by co-defendant Fredrick Haygood. The car was stopped for a traffic violation on Interstate 75 in Butts County. Police questioned both men, who gave conflicting stories regarding their activities prior to the arrest. Both appellant and Haygood consented to a search of the vehicle, during which the officers found two plastic bags containing more than 400 grams of cocaine hidden under the right front passenger seat, where appellant was sitting. Upon questioning by police, appellant told the officers that the cocaine was for his personal use.

Appellant and Haygood were charged under OCGA § 16-13-31 (a) (1) (C) for trafficking in cocaine in a quantity in excess of 400 grams and of at least 10 percent purity. Haygood absconded prior to trial, but appellant was tried and convicted of trafficking. He was sentenced to 25 years in prison and fined $1,000,000. His motion for new trial was denied on May 9, 1997, and this appeal followed.

1. Appellant asserts that the trial court erred in granting the State’s motion in limine to exclude Haygood’s statement to police claiming ownership of the cocaine and exonerating appellant. We disagree. Georgia’s courts “have prohibited the admission of hearsay confessions made by co-defendants or co-conspirators, even if exculpatory as to\the complaining defendant, if the co-defendant does not testify at trial and is not available for cross-examination. Davis [v. State, 255 Ga. 598, 604 (340 SE2d 869) (1986)]; see OCGA § 24-3-52. Exception is made to this rule, however, if the circumstances surrounding the statement provide indicia of reliability and the testimony is critical to the defendant’s Sixth Amendment right of confrontation. Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979); Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973); compare Davis [v. State], supra.” King v. State, 202 Ga. App. 817, 819-820 (415 SE2d 684) (1992); see also Timberlake v. State, 246 Ga. 488, 492 (271 SE2d 792) (1980).

In the case sub judice, Haygood gave the statement at issue to police following his arrest for trafficking in cocaine. The statement said that Haygood and appellant went to Miami, Florida, “to pick up some cocaine”; that Haygood “picked up a large quantity of cocaine but my friend Jose Douglas did not know or have any knowledge of a cocaine transaction in Miami”; that, after being stopped, both Haygood and Douglas gave permission to search appellant’s vehicle, which Haygood was driving; and that Haygood took “full responsibility” for the cocaine that was seized during the search. However, Haygood disappeared prior to trial and was unavailable for cross-examination on the statement. While appellant asserts that Haygood’s statement exhibits strong indicia of reliability, he fails to elaborate, and no such indicia are evident to this Court. Given the circumstances leading to Haygood’s unavailability for cross-examination, and the conflicting nature of the statement, we find that the statement lacks sufficient reliability to be admissible. The trial court did not abuse its discretion in granting the State’s motion to exclude Haygood’s statement.

2. Appellant next asserts that the trial court erred in overruling appellant’s motion to exclude his statement pursuant to a JacksonDenno hearing. We note that appellant failed to cite to the record or otherwise argue in support of this enumeration, so this assertion is abandoned. See Court of Appeals Rule 27 (c) (2), (c) (3) (i). Even so, our review of the record indicates that, following appellant’s Miranda warning, appellant stated that he understood his rights; the arresting officer testified that appellant was coherent and did not appear to be under the influence of drugs or alcohol. Appellant, upon moving to exclude his statements made while in custody, presented the trial court with no evidence of threats or promises made in conjunction with appellant’s Miranda warning, claiming only that the warning was given “fast” and appellant was “nervous” because he was under arrest. Such complaints lack merit; there was no error.

3. Appellant asserts that a police videotape of appellant’s arrest should have been excluded for lack of foundation. However, the State’s evidence showed the following: that the video camera system was in good working order on the day of the arrest; no changes or deletions were made to the videotape; all parties were identified; the videotape was marked and there was a proper chain of custody; the conduct of the parties was voluntary; and the videotape accurately recorded the arrest. This evidence is consistent with the requirements enumerated in Solomon v. Edgar, 92 Ga. App. 207, 211-212 (88 SE2d 167) (1955) (dictaphone records), and more recently in Daniels v. State, 222 Ga. App. 29, 33 (473 SE2d 239) (1996) (videotape). See also State v. Berky, 214 Ga. App. 174, 176 (447 SE2d 147) (1994), overruled on other grounds, 266 Ga. 28, 30 (463 SE2d 891) (1995); Bedley v. State, 189 Ga. App. 90, 91 (374 SE2d 841) (1988). “It was the duty of the trial court to determine the adequacy of the foundation” of the evidence. Wigfall v. State, supra at 586 (2). There was no abuse of discretion in the trial court’s finding that the proper foundation had been laid for admission of the videotape into evidence.

4. Appellant asserts that the trial court erred in failing to give several requested jury charges. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Haralson v. State, 223 Ga. App. 787, 792 (4) (479 SE2d 115) (1996); see also Jackson v. State, 267 Ga. 130 (475 SE2d 637) (1996); Mitchell v. State, 222 Ga. App. 453 (474 SE2d 306) (1996). Further, “[t]he failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not grounds for reversal. [Cits.]” (Punctuation omitted.) Melton v. State, 222 Ga. App. 555, 558 (3) (474 SE2d 640) (1996). After reviewing the charges given, we find that they adequately cover the applicable principles of law. Haralson v. State, supra at 792. Further, appellant’s requested charges were incorrect or misleading statements of the law, and Request to Charge No. 8, involving an instruction on possession of cocaine under OCGA § 16-13-30, was not supported by the facts of the case sub judice or the laws of this State. See Hernandez v. State, 182 Ga. App. 797, 801 (357 SE2d 131) (1987). There was no error.

Decided August 25, 1997

Reconsideration denied September 4, 1997

Joseph L. Smith, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

5. Appellant’s final enumeration asserts that the trial court erred in charging the jury on the law regarding parties to a crime, claiming that appellant’s “mere presence” in the car was insufficient to support the charge. We disagree.

The evidence showed that appellant voluntarily accompanied Haygood on the trip to Florida in a vehicle belonging to appellant; that appellant gave police permission to search the vehicle; and, when questioned by police, appellant did not disavow knowledge of the presence of the cocaine, but instead claimed that the cocaine found under the passenger seat was for his personal use. Such evidence rises to the level of aiding and abetting in the commission of the crime and justifies the “party to a crime” jury instruction. See OCGA § 16-2-20.

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       The arresting officer admitted that the date recorded by the video camera system was “off” by one day and one hour, but testified that the system was otherwise in good working order and that the videotape accurately depicted appellant’s arrest. Such testimony goes to the weight, not the admissibility, of the videotaped evidence. See Ledford v. State, 221 Ga. App. 238, 241 (470 SE2d 796) (1996).

       Although there does not appear to be specific evidence in the record that the video system was being operated by “competent personnel,” pursuant to Bedley v. State, supra at 91, nothing to the contrary has been presented by appellant. See Wigfall v. State, 257 Ga. 585, 586 (361 SE2d 376) (1987).