author: Birdsong, Presiding Judge.

text:
    A91A0795.
    CARROLL et al. v. STAUFFER.
    (407 SE2d 480)
   Birdsong, Presiding Judge.

Larry Stauffer sued William E. Carroll, Jr., and Dental Corp. of America, for an obligation on a promissory note. The trial court granted summary judgment to Stauffer as to both defendants. This appeal is by William E. Carroll, Jr. Held:

Appellant Carroll contends he did not obligate himself individually on this note, and that the parties did not intend that he obligate himself individually. He contends an issue of fact is raised that he signed the promissory note only as president of Dental Corp.

The note shows clearly on its face that William E. Carroll, Jr., signed the note twice, following the printed language “Witness_ hand— and seal_,” spaces having been left blank on the printed page, and having been amended by typed additions to read, “Witness our hands and seals.” The two signatures of appellant then appear:

Decided June 28, 1991.

Roger L. Curry, for appellants.

Stevens & Gerson, Ronald S. Stevens, for appellee.

“DENTAL CORP. OF AMERICA [Seal]

By (signed) William E. Carroll Jr. [Seal]

President

(signed) William E. Carroll, Jr. [Seal]

WILLIAM E. CARROLL, JR.”

It is clear on the face of the note that there were two debtors on the note: Dental Corp. of America and William E. Carroll, Jr. Not only did appellant sign as president of the debtor “DENTAL CORP. OF AMERICA”; he additionally and further signed individually for the debtor “WILLIAM E. CARROLL, JR.” It is self-evident that appellant would not have signed the note twice if the only debtor was “DENTAL CORP. OF AMERICA [Seal], By William E. Carroll, Jr. [Seal] President.” And, it is plain beyond dispute that appellant would not have signed the note again in the space above the words: “WILLIAM E. CARROLL, JR. [Seal],” (which were identical in form to the typed signatory “DENTAL CORP. OF AMERICA”) unless he intended to obligate himself equally in stature and form to Dental Corp. of America.

According to the standards for granting summary judgment (see OCGA § 9-11-56), reasonable minds cannot differ in this case and there is no material issue of fact remaining. The trial court correctly granted summary judgment to plaintiff, finding that appellant intended to and did obligate himself individually. See generally Steer-man v. American States Ins. Co., 194 Ga. App. 461 (390 SE2d 669).

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A0054.
    McCANN v. THE STATE.
    (407 SE2d 482)
   Sognier, Chief Judge.

Antonio McCann was convicted of aggravated child molestation, and he appeals.

The State adduced evidence that in 1976, appellant pled guilty to a charge of aggravated sodomy involving a 15 year old boy whom appellant had approached at a local store and lured to his home, where the assault occurred, by promising the victim he would arrange for them to meet women. As to the crime in issue, evidence established that the victim is a mildly retarded boy who was 11 years old at the time of the trial. He testified appellant approached him at a can recycling machine and persuaded him to go to appellant’s apartment to earn money by doing household chores for appellant. The victim testified that appellant committed an act of anal sex with him, then gave him several dollars worth of quarters to use for playing video games. The victim testified he returned several times to visit appellant, who would have sex with the victim and then give him small amounts of money, usually in quarters for the video games.

The victim’s mother testified that after noticing a change in the victim’s behavior and discovering a ten dollar bill in his possession, she grew suspicious. She requested that a family friend, Theron Bell, approach appellant, whom the victim had identified as the source of the money. Bell testified he questioned appellant about the money and the innocent household chores he had been told the victim was performing in exchange for the money, when appellant suddenly volunteered that “nothing was happening between him and [the victim].” Bell also testified that after the charges had been filed, he had a conversation with appellant who requested that Bell talk to the victim’s mother about whether “they could settle it, the situation out of court because he didn’t want it to have to be a court hassle.” The victim’s mother testified that she later questioned her son, who related the details of the molestation to her.

The doctor who examined the victim testified that the muscle tone in the victim’s rectum was very lax, indicating that a large object had been inserted into the victim’s anus enough times to stretch the muscle more than it normally should. The doctor stated she had absolutely no doubt that someone had had anal sex with the victim.

In his testimony appellant denied having any sexual contact with the victim in the instant case and asserted that the victim in the 1976 conviction had initiated the sexual contact.

Appellant’s sole enumeration of error involves a question posed by the prosecution on cross-examination of appellant’s girl friend, Pamela Gancey. Gancey testified on direct examination that over the course of her four year relationship with appellant, she had never seen any type of sexual activity between appellant and the victim or any other boy, and that she had not seen anything in her relationship with appellant indicating that he had any kind of sexual leanings towards little boys. She did relate how much appellant loved children and explained how he would invite children to his apartment to perform chores or attend barbecue cookouts. On cross-examination the prosecutor asked Gancey, “Are you familiar with the syndrome called the buddy syndrome where a child molester becomes a friend of his victim? He has him over. He has him over for cookouts?” Appellant’s counsel objected to the question, stating that “[the prosecutor] is testifying again. She is not a psychologist. She is not a psychiatrist. She is not an expert in that field, and she is asking if [the witness] is familiar with some kind of syndrome just so she can testify in front of the jury.” The trial court allowed the question, whereupon the prosecutor again asked Gancey if she was familiar with the buddy syndrome. Gancey responded, “No. What are you talking about?” The prosecutor explained that “I am talking about when an adult befriends children, builds up a relationship in order to have sex with them. It’s very common. Have you ever heard of that?” Gancey then shook her head negatively, and the prosecutor changed the topic.

Appellant contends that the trial court erred by allowing the prosecutor to become a witness on behalf of the State and testify as to a child molester profile, citing Hall v. State, 138 Ga. App. 20 (1) (225 SE2d 705) (1976). We find that appellant’s objection regarding the prosecutor’s improper introduction of a matter not in evidence called into issue OCGA § 17-8-75, which provides that “[w]here counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same.” It is uncontroverted that no testimony was adduced by any witness regarding the “buddy syndrome” referenced by the prosecutor. Therefore, contrary to the State’s argument, we cannot agree that the prosecutor’s description of that syndrome constituted proper cross-examination of Gancey’s testimony on direct regarding her observations of appellant’s sexual behavior toward little boys. We do not agree with the State that the prosecutor’s explanation regarding the buddy syndrome was not prejudicial to appellant because nothing in the prosecutor’s remarks specified that appellant displayed that syndrome. See Sanders v. State, 251 Ga. 70, 76 (303 SE2d 13) (1983). Rather, we agree with appellant that the prosecutor’s “question” constituted testimony that improperly implicated appellant’s character, without appellant having first chosen to place his character into issue.

However, applying the test set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), we find that it is highly probable that the error in allowing the prosecutor to inject evidence of the buddy syndrome did not contribute to the judgment in view of the victim’s testimony, the testimony of the victim of the 1976 aggravated sodomy, the medical evidence, and Bell’s testimony as to appellant’s voluntary remarks. See Sanders, supra at 76; see generally Polk v. State, 192 Ga. App. 888, 889 (1) (386 SE2d 682) (1989).

Although appellant argues on appeal that the above questions were improperly posed to Gancey, in that she was not qualified to answer it, we cannot address the merits of that argument because the objection made at trial, as set forth above, did not raise that issue before the trial court. See generally Tyner v. State, 193 Ga. App. 126 (2) (387 SE2d 50) (1989).

Decided July 1, 1991.

Mark V. Cloud, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A Grace, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0402.
    GOSS v. CONE et al.
    (407 SE2d 484)
   Banke, Presiding Judge.

Appellee Cone was injured when his automobile was struck by an automobile being driven by appellant Goss after the latter failed to stop at a stop sign. Settlement negotiations ensued between Cone’s attorney and Goss’ insurer, Superior Insurance Company; and although Cone’s damages exceeded the $15,000 in liability coverage provided by Goss’ policy, his attorney verbally agreed to accept the policy limits in full settlement of his claim. On December 21, 1988, approximately one week after this verbal agreement was reached, Superior Insurance sent Cone’s attorney a draft for $15,000 accompanied by a release. At about the same time, however, Cone’s attorney began negotiating with Cone’s insurance carrier, Southern Trust Insurance Company, to recover underinsured motorist benefits, and he decided not to cash Superior’s draft or to execute the accompanying release until that claim was resolved. Because Cone’s insurance carrier, Southern Trust, was unwilling to waive its subrogation rights against Goss and because Goss’ insurer, Superior, insisted that Cone execute a complete release of all claims against Goss as a condition of its settlement offer, Cone ultimately filed the present personal injury action against Goss in May of 1989, naming the Georgia Department of Transportation as a co-defendant in the action based on allegations that it had been negligent in designing the roadway where the collision occurred. In his answer, Goss asserted the defense of accord and satisfaction based on the oral settlement agreement previously reached between his insurer and Cone’s attorney.

In August of 1989, Cone settled his claim against his own insurer for the underinsured motorist benefits, and in connection with that settlement he executed a release pursuant to which his insurer reserved a subrogation claim against Goss. Cone’s attorney advised Goss’ insurer, Superior, of that settlement by letter dated August 23, 1989. He enclosed with that letter the $15,000 settlement draft previously sent to him by Superior, which had by that time become “stale,” and asked for a replacement draft, stating that he was extending his settlement offer two more weeks. Five months later, Superior filed an interpleader action seeking an adjudication of its obligations with respect to the insurance money; and Cone counterclaimed in that action to recover the funds, plus interest and attorney fees. Approximately six months after that, Superior filed a motion on Goss’ behalf in the personal injury action seeking to enforce the settlement agreement. The trial court denied this motion based on a determination that Superior’s five-month delay in responding to Cone’s extended offer was unreasonable and inexcusable, rendering the settlement null and void. In this same order, the court also dismissed the interpleader action. However, inasmuch as the case is before us on interlocutory appeal from the denial of Goss’ motion to enforce the settlement agreement, which motion was filed in the personal injury action, that portion of the order dealing with the interpleader action is not before use. Held:

Decided July 1, 1991.

Simpson & Gray, Ralph F. Simpson, Joseph I. Carter, for appellant.

“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2) (308 SE2d 544) (1983). See also OCGA § 15-19-5; Uniform Superior Court Rule 4.12. In his answer and counterclaim to the interpleader action, Cone admitted that “[a]n oral agreement to settle was reached by all respective parties and the release and draft were forwarded to [him] by [Superior].” Cf. LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215) (1988). He contends that Superior breached that agreement in August of 1989 by failing to comply with his request for a replacement draft. However, by issuing the original draft Superior had already fully complied with its obligations under the agreement. See generally General Communications Svc. v. Ga. Public Svc. Comm., 149 Ga. App. 466 (254 SE2d 710) (1979). As the evidence of record establishes without dispute that it was Cone rather than Superior who violated the agreement by failing to execute the accompanying release and to negotiate the draft according to its terms, we hold that the trial court erred in denying the appellant’s motion to enforce the settlement agreement. See generally Davis v. Davis, 245 Ga. 233 (264 SE2d 177) (1980); Potomac Leasing Co. v. First Nat. Bank, 180 Ga. App. 255 (348 SE2d 907) (1986); Shepherd v. Carlton’s Nice Cars, 149 Ga. App. 749 (256 SE2d 113) (1979).

Judgment reversed.

Carley and Beasley, JJ., concur.

Morris & Webster, Craig A. Webster, for appellees.


author: Andrews, Judge.

text:
    A91A0563.
    REALTY TRADING COMPANY et al. v. FIDUCIARY LEASCO, INC.
    (407 SE2d 486)
   Andrews, Judge.

Realty Trading Company through its managing partner Reese filed a notice of appeal on November 6, 1990, from the court’s judgment in favor of Fiduciary Leasco, Inc., for over $15,000 and a writ of possession of leased equipment. The judgment was dated and filed of record on November 8.

On November 16, Fiduciary filed a motion for supersedeas bond pursuant to OCGA § 5-6-46 (a). According to the order entered November 30 granting the bond, Realty filed in open court during the hearing on the motion a pauper’s affidavit, contending that Reese and the partnership were unable to pay costs or post any bond which the court might require. The Notice of Hearing stated that the hearing was noticed for November 26. No transcript has been provided here.

The order granting the bond held that the affidavit did not apply to the bond and directed the bond to be filed within ten days, or by December 10, 1990. No such bond was posted nor were the costs paid below before this case was docketed here on December 17, 1990.

1. (a) Although no brief for appellee has been filed, it is the duty of the reviewing court to entertain the threshold question of its jurisdiction where there may be any doubt. Shirley v. State, 188 Ga. App. 357 (1) (373 SE2d 257) (1988). Even though there was premature filing of the notice of appeal before entry of judgment, the notice was sufficient to advise the opposihg party that an appeal was being taken from the judgment entered the next day and this will not result in dismissal of the appeal. Gillen v. Bostick, 234 Ga. 308 (215 SE2d 676) (1975); Kenerly v. Yancey, 144 Ga. App. 295, 296 (1) (241 SE2d 28) (1977).

(b) Because no supersedeas bond was posted below and the costs were not paid upon the filing of the notice of appeal, no supersedeas was in place below and the writ of possession was subject to execution at Fiduciary’s peril, although failure to post the bond is not a basis for dismissal of the appeal. Hyman v. Leathers, 168 Ga. App. 112, 113 (1) (308 SE2d 388) (1983).

2. The first enumeration of error consists of argument that the trial court improperly issued the writ because of language in the lease agreement. The trial court concluded, as do we, from the face of the lease, that the arguments now made here were unavailing to Realty and Reese. There was no error in issuing the judgment and writ.

Decided July 1, 1991.

Thelma Reese, pro se.

William C. McFee, Jr., for appellee.

3. The second enumeration makes numerous factual assertions concerning the procedure used by the court in ruling on the motion for supersedeas and the cursory pauper’s affidavit presented by Realty and Reese. These factual assertions are not supported by the record and therefore it is assumed that the judgment below is correct. Coffee v. Silver, 195 Ga. App. 247, 248 (1) (393 SE2d 58) (1990).

Judgment affirmed.

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


text:
    A91A0765.
    NEWT v. THE STATE.
    (407 SE2d 487)
   Birdsong, Presiding Judge.

Kevin Newt appeals his conviction for the sale of cocaine by contending he was entitled to a directed verdict of acquittal on grounds of entrapment and on the question of venue. Held:

1. A directed verdict of acquittal is authorized in a criminal case only where there is no conflict in the evidence and the evidence introduced, with all reasonable deductions and inferences therefrom, shall demand a verdict of acquittal or finding of “not guilty.” OCGA § 17-9-1 (a). “[A] defendant’s testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred.” State v. Royal, 247 Ga. 309, 310 (275 SE2d 646).

An undercover agent went with a confidential informant to appellant’s mother’s house in Dade County and asked if appellant could get some cocaine. Appellant took the agent and informant to another house in Dade County and, with $225 given to him by the agent, appellant went inside the house and emerged a few minutes later with one-eighth ounce of what proved to be cocaine. Appellant defended the charge by saying he was an alcoholic; that after first asking if appellant could produce some marijuana and being told appellant could not, the agent plied him with several beers and stayed at appellant’s house until appellant finally agreed to find some cocaine; and that the incident would not have happened if appellant had not been imposed upon by the agent who enticed and befuddled him with alcohol.

This evidence by appellant raised the defense of entrapment but did not demand a finding of entrapment. Id. Accordingly, appellant was not entitled under OCGA § 17-9-1 to a directed verdict of acquittal for entrapment.

Decided July 1, 1991.

Frank B. Perry & Associates, Frank B. Perry, for appellant.

Ralph Van Pelt, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

2. The evidence showed appellant agreed to find the agent some cocaine while appellant was at his mother’s house which was in Dade County, and further that he procured the cocaine at a house in Dade County. Under the standards stated above, appellant assuredly was not entitled to a directed verdict of acquittal. State v. Royal, supra.

3. The evidence is sufficient to enable a rational trier of fact to find appellant guilty of the offense of sale of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A91A0039.
    CARTER v. MAYOR &c. OF SAVANNAH.
    (407 SE2d 421)
   Cooper, Judge.

Appellant, Michael Steven Carter, sued Glenda Anderson (“Anderson”) and the City of Savannah (“City”) to recover for personal injuries he received in a motor vehicle collision at the intersection of 66th Street and Sutlive Street in Savannah, Georgia. In his complaint, appellant alleged theories of negligence and nuisance. He appeals the grant of summary judgment to the City of Savannah.

The collision occurred when appellant, riding his motorcycle in a westerly direction on 66th Street, struck an automobile driven by Anderson, which was travelling north across 66th Street on Sutlive Street. It is undisputed that at the time of the collision, the stop sign, which was usually located on the southeast corner of the intersection and which controlled traffic travelling north on Sutlive Street, was not in place. Appellant contends that the City failed to erect and maintain the stop sign in conformity with the established procedures promulgated by the City; that the City failed to replace the stop sign after having actual or imputed knowledge of its having been removed from its location; that the City’s failure to properly erect and maintain the stop sign constituted negligence and the maintenance of a nuisance; and that the City’s negligence and maintenance of a nuisance was the cause of appellant’s injuries and damages. The trial court in granting summary judgment to the City found that the City was entitled to judgment as a matter of law on both the negligence and nuisance claims.

1. In five enumerations of error appellant contends that the trial court erred in granting summary judgment to the City on his nuisance claim. “The law is clear in Georgia . . . that ‘[a] municipal corporation, like any other individual or private corporation, may be held liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function. . . .’ ’’City of Bowman v. Gunnells, 243 Ga. 809, 810 (1) (256 SE2d 782) (1979). See also Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (3g) (249 SE2d 224) (1978). “An action may be brought against a municipality for the creation or maintenance of a nuisance where the municipality is negligent in carrying out a lawful act which it was authorized to do. [Cit.]” Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (165 SE2d 141) (1968). “ ‘Under some factual situations, it can be held as a matter of law that no nuisance exists; however, that question ordinarily is a question of fact for the jury.’ [Cit.]” Whiddon v. O’Neal, 171 Ga. App. 636, 638 (320 SE2d 601) (1984). Therefore, we must determine whether the evidence in the present case was sufficient to raise a jury question as to whether the City could be held liable for the maintenance of a nuisance.

The following guidelines should be applied in determining whether a municipality may be held liable for the maintenance of a nuisance: “(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute a nuisance, [cit.].) (2) The act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious [cit.] [and] (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition. [Cit.]” (Indention and punctuation omitted.) City of Bowman v. Gunnells, supra at 811.

Relying on Shuman v. Mayor &c. of Savannah, 180 Ga. App. 427 (349 SE2d 239) (1986), the City contends that its failure to replace the missing stop sign was a single isolated act of negligence which was neither repetitious nor of continuing duration. We disagree. In Shuman, the appellant was injured in a collision allegedly occurring because a motorist failed to observe a stop sign at an intersection that had been obscured by the branches of an overgrown tree. In a nuisance action brought by the plaintiff against the City, this court upheld the trial court’s grant of summary judgment to the City because the evidence showed that prior to the plaintiff’s accident, the municipality had not received any complaints about problems or accidents due to the obscured stop sign. The court concluded that “ ‘(t)o hold that defendant City should have known of the problem and corrected it, even without any record of complaints or accidents (attributed to the defect), is to impose a standard of ordinary care,’ rather than the proper standard requiring a showing that the maintenance of the defect exceeded mere negligence.” Shuman, supra at 428.

However, in the case sub judice, evidence was presented that the City had a recurring problem with vandals removing signs from the City streets and that this problem was especially acute in Savannah because the soil is so loose and sandy, thereby allowing signs to be easily uprooted. City officials testified that because of the loose soil composition, the City had established a general policy to pour concrete around the base of all the street signs to secure them into the ground, a policy which was apparently not followed as to the subject stop sign in spite of the City’s prior knowledge that there had been problems in the past with vandals uprooting street signs at this particular intersection. The record indicates that approximately four months prior to appellant’s collision, a stop sign at the intersection where the collision occurred had been replaced by City workers; that one month prior to appellant’s collision, a street name sign that had been uprooted at the same intersection had been replaced without concrete; that an inspection of the subject stop sign after the accident revealed that it had never been concreted into the ground; and that the subject stop sign had been missing from the intersection for a period of at least one week prior to the accident. Thus, there was some evidence to support appellant’s claim that the City had repeatedly failed to follow its own policies and procedures which had been promulgated to remedy the general problem that existed with street signs in the City and at this particular intersection.

We now consider whether there was evidence in the record sufficient to raise a material question of fact as to whether the City failed to act within a reasonable time after knowledge of the defect or dangerous condition. “If a municipality is to be held liable under a theory of maintaining a nuisance . . . [t]he municipality must either have knowledge ‘or be chargeable with notice of the dangerous condition. . . .’ [Cit.]” Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 531 (3) (307 SE2d 47) (1983). The City contends that since it did not receive actual notice that the stop sign had been removed, appellant’s nuisance action must fail. Appellant argues, however, that actual notice is not necessary because the City should be chargeable with notice of the missing stop sign and the dangerous situation it created at this intersection. Specifically, appellant contends that the stop sign was missing for a sufficiently long enough period of time that notice may be imputed to the City.

Constructive notice of a defect may be shown by testimony as to how long a defect existed prior to an accident. See Crider v. City of Atlanta, 184 Ga. App. 389 (1) (361 SE2d 520) (1987). “Notice may also be imputed to the city from the knowledge of its own agents or employees. [Cit.]” Crider, supra at 389. “‘The length of time ... a defect must exist in order for an inference of notice to arise is ordinarily a question for the jury.’ [Cit.]” City of Atlanta v. Hightower, 177 Ga. App. 140, 141 (338 SE2d 683) (1985). In the present case, an affidavit given by a witness revealed that the subject stop sign may have been missing for a period of at least one week prior to the date of the accident. The record further indicated that City employees were required to report missing and damaged street signs and other dangerous conditions that they saw within the City; that during the week prior to the accident, the street, which is located in a business district, was routinely patrolled by police offiqers; and that during the week preceding the accident, Sutlive Street was cleaned by a street sweeper employed by the City. Given the inherently dangerous situation presented by a missing stop sign at a heavily travelled intersection and the City’s problem with uprooted street signs in general, we cannot say, as a matter of law, that one week was too short a period of time for the City to have learned about the missing stop sign and to have initiated action to remedy the dangerous situation.

“ ‘ “On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” [Cit.]’ [Cit.] Since the City failed to conclusively refute appellant[’s] allegation of a nuisance, the dangerous condition created by the City’s failure to [properly erect, maintain and replace a stop sign], a material issue remains in these cases; therefore, the City’s motion for summary judgment should have been denied. On summary judgment the court is concerned only with whether there is a genuine issue of fact for determination and not with the difficulty the [appellant] may have in proving [his case] at trial.” Whiddon, supra at 639.

2. We also find that appellee’s argument that there was no evidence that the absence of a stop sign at the intersection was the “cause in fact” of the accident is without merit. Appellant testified in his deposition that he believed that “it was evident that she [Anderson] didn’t ... see me, or she didn’t slow down at all.” He further states in response to a request to estimate the speed of Anderson’s automobile, that he thought she was travelling “at least 25 [miles per hour], ...” Moreover, Anderson’s testimony in her deposition was equivocal in regard to whether she stopped at the stop sign. Accordingly, we hold that there were sufficient questions of fact for a jury to decide as to whether Anderson stopped at the intersection; whether Anderson would have stopped at the intersection if there had been a stop sign; and whether the absence of a stop sign at the intersection was the cause of appellant’s injuries.

Decided June 10, 1991

Reconsideration denied July 2, 1991.

Jones, Boykin & Associates, Noble L. Boykin, Jr., Charles W. Snyder, for appellant.

Oliver, Maner & Gray, Patrick T. O’Connor, Karsman, Brooks & Callaway, Edward M. Hughes, Wiseman, Blackburn & Futrell, James B. Blackburn, for appellee.

3. We, however, affirm the trial court’s ruling that the City cannot be held liable for injuries resulting from the missing stop sign on a theory of mere negligent erection and maintenance of the sign. See Cyr v. Mayor &c. of Savannah, 188 Ga. App. 261 (372 SE2d 659) (1988).

Judgment affirmed in part and reversed in part.

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


author: Beasley, Judge.

text:
    A91A0074.
    FROST v. THE STATE.
    (407 SE2d 765)
   Beasley, Judge.

Frost was charged with the murder of her husband, OCGA § 16-5-1 (a), by shooting and setting fire to him and with arson in the first degree, OCGA § 16-7-60 (a), by setting fire to and damaging his mobile home. She was convicted of arson and of voluntary manslaughter, OCGA § 16-5-2 (a). A new trial was denied.

1. The State moves to dismiss the appeal because of failure to file the brief and enumerations of error by the date this court ordered, but she did so and the motion is denied.

2. In two enumerations, appellant contends respectively that the trial court erred in overruling her demurrer and her plea in abatement to the arson count. She relies on her brief filed with the trial court, without more except to highlight Johnson v. State, 90 Ga. 441, 445 (16 SE 92) (1892), for the rule: “one accused of crime [has] the right to have an indictment perfect as to the essential elements of the crime charged.” One reason for the rule, as the court gave earlier in the same opinion, is because such person has “the right to know enough of the particular facts constituting the alleged offence to be able to prepare for trial.” Id. at 444. Another reason is so the jury will understand the charge. O’Brien v. State, 109 Ga. 51, 52 (1) (35 SE 112) (1899); OCGA § 17-7-54. Appellant points out a third reason, which is to assure that the grand jury properly considered all the elements of the offense in returning the indictment, part of the Fifth Amendment guarantee. See United States v. Outler, 659 F2d 1306, 1310 (2) (5th Cir. 1981). The indictment may be tested by asking whether, if defendant admitted what the indictment charged, would defendant be guilty of a crime? See State v. Howell, 194 Ga. App. 594, 595 (391 SE2d 415) (1990); Hilliard v. State, 87 Ga. App. 769, 772 (75 SE2d 173) (1953).

Appellant’s complaint is that the charge was fatally defective because it did not allege an essential element, intent or criminal negligence, thus failing to give notice of the manner in which the crime was allegedly committed. Appellant was charged with “unlawfully” damaging by means of fire her husband’s occupied dwelling house without the consent of her husband or of the lienholder.

The indictment says “unlawfully.” Although Dye v. State, 177 Ga. App. 813 (341 SE2d 469) (1986), dealt with an indictment which tracked the Code, which this case does not, the court expressed the view that “[t]he allegation that appellant acted ‘unlawfully’ is sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent.” It referred to McDonald v. State, 222 Ga. 596 (1) (151 SE2d 121) (1966) and OCGA § 16-2-1.

“Unlawfully” in this instance means as prohibited by OCGA § 16-7-60. Although the indictment does not recite the Code section, compare State v. Howell, 194 Ga. App. 594 (391 SE2d 415) (1990) (a specific intent case), it is obvious from defendant’s brief below that she was unquestionably aware that she was charged with a violation of OCGA § 16-7-60. OCGA § 16-7-60 precedes each action verb with the adverb “knowingly.”

“Knowingly” relates to intent which, since it is used in the context of a prohibition of activity for which there is punishment, means criminal intent. In other words, as related to the indictment, defendant was charged with knowingly damaging the dwelling by fire. “Knowingly” is the precise element which makes a person’s damaging of property by fire arson. If the act of damaging is not done “knowingly,” it is not arson. The use of the word “knowingly” imports the criminal intent element contained in OCGA § 16-2-1. As defendant recognizes, the statute need not contain the word “intentionally.” Sabel v. State, 248 Ga. 10, 13 (2) (282 SE2d 61) (1981).

The use of the word “unlawfully” in the indictment, instead of the use of the word “knowingly,” did not fail to charge defendant with a crime by the omission of the element of intent, nor did it fail to put defendant on notice that she was charged with committing the act with intent rather than with criminal negligence. See OCGA § 16-2-1. Her argument that the indictment did not apprise her of which of the two manners provided in OCGA § 16-2-1 was alleged is not persuasive.

We find no violation in the indictment of defendant’s right to notice as asserted under Georgia law and under the Sixth and Fourteenth Amendments to the United States Constitution. See, for example, Cole v. Arkansas, 333 U. S. 196, 201 (68 SC 514, 92 LE 644) (1948); In re Oliver, 333 U. S. 257, 273 (68 SC 499, 92 LE 682) (1948). (“A person’s right to reasonable notice of a charge against him [or her] . . . [is] basic in our system of jurisprudence.”)

3. Appellant contends that the trial court erred in denying her motion for new trial on the general grounds.

(a) She maintains that the evidence of manslaughter was insufficient because the only evidence connecting her to the death of her husband was her custodial statement which was inadmissible because she was not adequately advised of her Miranda rights.

Contrary to her contention, there was substantial evidence other than the statement at issue connecting appellant to her husband’s death, although this is not dispositive. As to the unspecified deficiency in Miranda rights, the record discloses the background that appellant gave several varying statements to authorities, some of which were made prior to her being in custody. The issue of the voluntariness of the statements, including the now objected-to custodial statement, was thoroughly heard at a lengthy pretrial evidentiary hearing and again explored at trial.

Getting to the issue here, there was evidence that appellant was timely given the Miranda warnings by a reading of “the Miranda card.” There was also a tape recording of the subject incriminating statement which reflected that appellant was advised of her rights twice more prior to making the statement and that she wished to speak because “I think it’s time y’all knew the truth.” She further indicated she did not object to the audio recording of her statement, and she confirmed at the end of it that she had been advised of her rights and gave the statement freely and voluntarily. There was evidence that in addition appellant signed a waiver of her Miranda rights, and that members of her family were outside at the time of the interview.

(b) As to the arson, she maintains that the home was not occupied at the time of the fire, inasmuch as the evidence established that her husband was already dead, and that there was no evidence of either her husband’s or the lienholder’s ownership or security interest in the burned dwelling.

The alleged defects in the evidence of arson are without merit. “In a case of arson, the corpus delicti consists in the proof of three fundamental facts: first, the burning of the house described in the indictment; second, that a criminal agency was the cause of the burning; and third, that the defendant was the criminal agency. These principles are elementary and need no citation of authorities. The presumption is that any fire is a result of accident and providential cause rather than criminal design. When nothing appears other than the burning, of course the burden is on the State to overcome the presumption that the burning occurred from providential or accidental cause. It must appear from either direct or circumstantial evidence, beyond a reasonable doubt, that the fire was of incendiary origin and that the defendant was the guilty party. Lockhart v. State, 76 Ga. App. 289 (45 S. E. 2d 698).” Hurst v. State, 88 Ga. App. 798, 799 (78 SE2d 80) (1953) “(dwelling house arson).” See Bragg v. State, 175 Ga. App. 640, 641 (1) (334 SE2d 184) (1985) (first degree arson). The offense is committed whether or not the dwelling is occupied. OCGA § 16-7-60 (a). See State v. Hovers, 148 Ga. App. 431, 432 (251 SE2d 397) (1978).

The dwelling was occupied at the time the fire was set. The evidence was undisputed that at the time of the fire the trailer was the marital home of the deceased and the appellant. By appellant’s own statement to authorities, she herself was in the trailer at the time she intentionally set fire to it in order to cover up evidence that she shot her husband; she wanted it to appear that her husband accidentally perished in the fire.

As to the contention of lack of evidence of ownership or security interest, in an arson case “[1] awful occupancy by one in charge constitutes ownership as contemplated by the statute, and the question of legal title is not involved.” Tukes v. State, 125 Ga. App. 831 (189 SE2d 135) (1972). See Rash v. State, 182 Ga. App. 655 (356 SE2d 719) (1987). Since the “of another” aspect was proved, we need not address whether there was proof of the alternative “security interest” aspect.

The evidence at trial was sufficient to enable the jury to find appellant guilty of voluntary manslaughter and arson in the first degree beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant contends that reversal is mandated because the trial court erred in quashing subpoenas duces tecum to crime lab personnel asking that they produce their work product used to arrive at opinions expressed in a scientific report supplied to the defense pursuant to a statutory demand.

The trial court quashed the subpoenas relying on the holdings in Eason v. State, 194 Ga. App. 678 (1) (391 SE2d 427) (1990) and Dye, supra at 814 (3). Subsequently, the Supreme Court in Eason b. State, 260 Ga. 445 (396 SE2d 492) (1990), determined that a criminal defendant’s right of cross-examination in Georgia includes the right to subpoena for the purpose of cross-examination those memos, notes, graphs, computer printouts, and other data which the State Crime Lab employee relies upon to support his or her testimony and opinion during direct examination. The quashing of the subpoenas in this case does not require reversal. Appellant was not denied the right to cross-examination in this regard inasmuch as neither the State nor appellant called the subpoenaed crime lab personnel to testify at trial. “In order for an alleged error to be grounds for reversal, appellant must show not only error, but also ensuing harm. [Cit.]” Bowen v. State, 170 Ga. App. 49, 50 (1) (316 SE2d 33) (1984).

5. Appellant contends that the trial court erred in instructing the jury, “When witnesses appear and testify it is presumed that they speak the truth.” She urges that the charge improperly interfered with the jury’s sole fact-finding authority and was particularly harmful to her because the jury was in effect told even in the face of conflicting evidence to presume the truthfulness of the deputy sheriff’s testimony that he advised appellant of her Miranda rights.

The Georgia Supreme Court has recommended that use of the challenged instruction be discontinued as possibly “misleading” although not unconstitutionally burden-shifting. Noggle v. State, 256 Ga. 383, 386 (4) (349 SE2d 175) (1986). The charge has not been found to be reversible error. See Coleman v. State, 189 Ga. App. 366, 367 (5) (375 SE2d 663) (1988), and the cases cited therein. Moreover, the record does not support appellant’s contention regarding conflict in the specified evidence.

6. Based upon the same argument urged in Division 5, appellant contends that the trial court erred in instructing the jury, “If upon a consideration of the evidence in the case you find there is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses, it is your duty to settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do this, it then becomes your duty to believe that witness or those witnesses you think best entitled to belief.”

Appellant omits the last statement in such instruction to the jury that, “It is for you alone to determine what testimony you will credit and what testimony you will discredit.” The totality of the instruction, taken from Volume 2 of the Suggested Pattern Jury Instructions in Criminal Cases, cannot reasonably be heard by the jury to curtail or interfere with its fact-finding role in any way.

Decided June 6, 1991

Reconsideration denied July 2, 1991

Larsen & Larsen, W. Washington Larsen, Jr., for appellant.

Richard A. Malone, District Attorney, for appellee.

7. Lastly, appellant contends that the trial court erred in instructing the jury, “If you find that a witness has been successfully impeached by proof of previous contradictory statements, you may disregard that testimony unless it is corroborated by other creditable testimony and the credit to be given to the balance of the testimony of the witness would be for you members of the jury to determine.” While she concedes that the charge “may have been abstractly a sound statement of law,” appellant claims its only purpose in her case was to cause “prejudicial confusion” in the minds of the jury inasmuch as she did not testify or call any witnesses. However, she attacked the credibility of State’s witnesses by cross-examination which included efforts to show inconsistencies.

The same sound legal principles applied to the jury’s assessment of the credibility of any of the witnesses, whether the State’s or the defendant’s. The charge as a whole was not confusing so as to cause prejudice to appellant. See OCGA § 24-9-80.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

       Overruled in part on another ground in Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990).


text:
    A91A0102, A91A0103.
    BROWN v. TRANSAMERICA IMS et al.; and vice versa.
    (407 SE2d 430)
   Sognier, Chief Judge.

Harry Brown was an employee of Transamerica IMS when he sustained a work-related injury to his back. During the course of his treatment with his employer-approved physician, Dr. Brian Bothe, Brown began to experience depression as a result of his injury, and Dr. Bothe referred him to Dr. Michael McGarry, a psychologist. Brown did not like Dr. McGarry and requested that Dr. Bothe refer him to Dr. Robert George, a psychologist who was treating Brown’s mother in law. Dr. Bothe agreed to refer Brown to Dr. George on August 1, 1988. On August 31,1988, Dr. Bothe told Brown not to see Dr. George and asked him either to return to Dr. McGarry or to accept a referral to another psychologist. Transamerica IMS and its insurer (hereinafter referred to collectively as “Transamerica”) paid the fees for Brown’s visits to Dr. George through August 31, 1988, but filed a “Notice to Controvert Payment of Compensation” as to Dr. George’s fees after that date.

The administrative law judge found that Transamerica was not liable for the unpaid medical bills of Dr. George on the alternative bases that the referral by Dr. Bothe to Dr. George was not valid because it originated with Brown or, if originally valid, the referral was revoked by Dr. Bothe no later than August 31, 1988. The ALJ rejected Transamerica’s argument that psychological treatment was not reasonable and necessary. The State Board of Workers’ Compensation adopted the findings and conclusions of the ALJ. The Superior Court of Fulton County rejected the ALJ’s reasoning that a referral is rendered invalid because it originates with an employee. The superior court agreed with the ALJ that the employer-selected physician has the authority to revoke a referral, but held that the revocation must be based upon the sound and reasonable discretion of the employer-selected physician. Based on the absence of any evidence indicating the reason behind Dr. Bothe’s revocation of his referral of Brown to Dr. George, the superior court reversed the award and remanded it to the Board for the purpose of determining why Dr. Bothe revoked his referral of Brown to Dr. George. We granted the applications for discretionary review filed by Brown and Transamerica.

1. In Case No. A91A0102, Brown contends the superior court erred by finding that an employer-selected physician has the authority to revoke a referral of the employee to another physician after the employee has begun treatment with that physician. OCGA § 34-9-201 provides that “(c) [a]n employee may accept the services of a physician selected by the employer from the panel [of physicians in OCGA § 34-9-201 (b)] or may select another physician from the panel. . . . The physician selected under this subsection may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require. The employer shall not be responsible for the charges for medical services furnished or ordered by any physician or other person selected by the employee in disregard of this subsection, (d) Upon the request of an employee or an employer, the board may order a change of physician or treatment as provided under Code Section 34-9-200.” OCGA § 34-9-200 (b) provides that “[u]pon the request of an employee or an employer, the board may in its judgment, after giving notice in writing of the request to all interested parties and allowing any interested party ten days from the date of said notice to file in writing its objections to the request, order a change of physician or treatment and designate other treatment or another physician.”

In Holcombe v. Brown Transport Corp., 253 Ga. 719 (324 SE2d 446) (1985), when injured employee Holcombe moved out of the state, his employer-selected physician, Dr. Grady, provided him with authorization to obtain physical therapy and referred him to a Dr. Boehm in Tennessee. Holcombe then sought approval from his employer to obtain not only physical therapy but also other treatment, including biofeedback and group therapy, from a second Tennessee physician, Dr. McAllister. The employer acknowledged the validity of Dr. Grady’s referral for physical therapy and paid for Dr. McAllister’s physical therapy treatment, but refused to pay for the “unauthorized” biofeedback and group therapy treatment. The Supreme Court granted the writ of certiorari to this court’s opinion in Brown Transport Corp. v. Holcombe, 171 Ga. App. 532 (320 SE2d 552) (1984) to consider the “statutory remedy for the claimant in the situation wherein the employer contends that certain treatment, for which compensation is being sought, is unauthorized.” Holcombe, supra at 720. The Supreme Court reviewed OCGA § 34-9-201 (c) and noted that “[o]n its face, it might be assumed that this statute provides that the selected physician [from the panel in OCGA § 34-9-201 (b)] can make arrangements — for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require — which will be automatically binding on both parties.” The Supreme Court, however, rejected that interpretation, holding that the “change of physician” provisions in OCGA § 34-9-201 (d) and OCGA § 34-9-200 (b) (miscited in Holcombe as OCGA § 34-9-200 (d)) “govern in circumstances such as in the present case, i.e., where there is a dispute as to whether the physician and/or the treatment is being changed.” Holcombe, supra at 720. The Supreme Court noted that while in some respects these two parallel statutory provisions are “merely permissive,” in that parties often handle changes in physicians and/or treatment between themselves without recourse to the Board, the statutory provisions “are mandatory, at least for the protection of the parties’ interests,” so that where the parties fail to have a change ordered they run the risk of “possibly suffer [ing] the consequences of having a claim subsequently denied (or upheld).” Holcombe, supra at 721. “The legislative intent to have the board resolve [disputes as to whether the physician and/or treatment may be changed] by its hearing and ordering powers can be seen from the fact that virtually every aspect of compensation under OCGA §§ 34-9-200 and 34-9-201 is to be effected pursuant to the board’s judgment and order. Specifically, OCGA § 34-9-200 (a) makes the decision concerning what treatment . . . the employee is entitled [to be] a decision for the board.” Id. Despite this holding, in affirming this court’s decision that the biofeedback, group therapy, and other expenses incurred were unauthorized and not recoverable the Supreme Court did not utilize a “right for any reason” basis, but rather found the expenses not recoverable “for the additional reason that no order was obtained from the board changing the physicians and/or treatment originally extant.” (Emphasis supplied.) Id.

Holcombe thus establishes that only parties who change physicians and/or treatment with Board approval have their respective interests protected under the Workers’ Compensation Act. In acting otherwise, parties assume the consequences of their risky bilateral arrangements. Holcombe is controlling authority for the proposition that OCGA §§ 34-9-200 (b) and 34-9-201 (d) provide the sole method of changing physicians or treatment, including, apparently, any change effected by the employer-approved physician in referring the employee to another physician pursuant to OCGA § 34-9-201 (c). Therefore, an employer-approved physician has no authority under OCGA § 34-9-201 (c) to effect a change of physician or treatment by “revoking a referral,” regardless how such revocation is made, and the superior court erred by holding to the contrary.

In the case at bar, the parties clearly failed to follow the statutory provisions of OCGA §§ 34-9-200 and 34-9-201 when Brown was referred to Dr. McGarry, when the referral of Brown to Dr. McGarry was changed, and when Brown was referred to Dr. George on August 1, 1988. The record reflects that the parties initiated no change of physician proceedings in regard to those arrangements, and no enumeration of error raises those matters in this court. Hence, under Holcombe, the parties have assumed the risk of acting without Board approval and are bound by the consequences of their action. Thus, we will not consider any issue regarding the validity or invalidity of these earlier arrangements. See generally Coffee v. Silver, 195 Ga. App. 247, 248 (2) (393 SE2d 58) (1990).

As to the matter enumerated here, the “revocation of referral” to Dr. George, it appears that the parties are seeking to accomplish precisely what Holcombe proscribes, i.e., dispute a change of physician without utilizing the statutory provisions provided to resolve such disputes. After having acquiesced to Brown’s change to Dr. George and having paid Dr. George’s fees for treating Brown, Transamerica now seeks to initiate yet another change of physician not by obtaining an order from the Board under the statutory provisions for change of physician, but instead by filing a notice to controvert payment of Dr. George’s fees. This Transamerica cannot do. Holcombe, supra.

In view of the language and rationale employed in Holcombe, we reject the argument that because the Supreme Court in Holcombe found that this court “correctly ruled” in Brown Transport Corp., supra, and stated its holding in Holcombe was merely an “additional reason” rather than the exclusive basis for the holding therein, the Supreme Court was intimating that cases where a claimant’s employer has controverted payment of a physician’s fee might be reviewed in the light of a motion for change of physicians and held to the standard set forth in Franchise Enterprises v. Sullivan, 190 Ga. App. 767, 770 (3) (380 SE2d 68) (1989). We interpret the holding in Holcombe as precluding parties from litigating change of physician disputes in the guise of notices to controvert payment of that physician’s fees. Therefore, although the superior court erred by holding that an employer-approved physician could revoke a referral under OCGA § 34-9-201 (c), applying the “right for any reason” principle, see generally Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (1) (380 SE2d 78) (1989), we affirm the superior court’s reversal of the Board’s award on the basis that the award was contrary to law. OCGA § 34-9-105 (c) (5).

Decided June 19, 1991

Reconsideration denied July 2, 1991

Charles E. Moore, Jr., Karolyn P. Mercer, for appellant.

Sligh, Presmanes & Jackson, John A. Sligh, Jr., for appellees.

2. In Case No. A91A0103, Transamerica contends the superior court erred by reversing the Board’s award and by remanding the decision for additional evidence on the justification of the revocation of the referral. Our holding in Division 1, however, controls the issue of the reversal adversely to Transamerica and renders moot its second enumeration.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Carley, Judge.

text:
    A91A0174.
    In re GLENN.
    (407 SE2d 428)
   Carley, Judge.

Appellant-attorney was retained to represent James Geiger at a criminal trial. The trial was scheduled to be called immediately upon the completion of another criminal case wherein appellant was defense counsel. During the trial of this other criminal case, appellant was approached by counsel for the State and asked if he would enter into a stipulation with regard to the Geiger case. Appellant agreed and a written stipulation was filed. A few hours later, however, appellant filed a written withdrawal of the stipulation and informed counsel for the State. When the trial of the Geiger case was called a short time thereafter, the State moved that the trial proceed in accordance with appellant’s stipulation or that a continuance be granted on the ground that several of its witnesses had been released in reliance upon appellant’s stipulation. Rather than merely ruling on the State’s motion, the trial court found appellant to be in contempt and gave him the option of purging his contempt by paying a fine or by serving 20 days in jail or by agreeing to proceed to trial in accordance with the original stipulation. Appellant appeals from this adjudication of his contempt.

Decided June 18, 1991

Reconsideration denied July 2, 1991.

Kendall, Dixon & Turk, Kenneth A. Glenn, pro se.

Sexton, Moody & Renehan, Lee Sexton, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

There is some question whether the pretrial stipulation had ever become valid and enforceable prior to its withdrawal, it having been secured outside the presence of Geiger and Geiger apparently not having otherwise ratified it. “Admissions by agents or attorneys are not admissible in criminal cases in the sense in which they are admissible in civil cases. [Cits.] They should not be treated as evidence against the accused unless shown to have been authorized by him.” Farmer v. State, 100 Ga. 41, 45-46 (28 SE 26) (1896). A defendant in a criminal case can “be convicted on a stipulation of facts agreed to and executed by him. . . .” Tribble v. State, 89 Ga. App. 593, 598 (3) (80 SE2d 711) (1954). See also Young v. State, 191 Ga. App. 651, 653 (3) (382 SE2d 642) (1989). If the stipulation had not even become enforceable, then appellant’s withdrawal of it obviously could not constitute an act of contempt. See Hardman v. State, 143 Ga. App. 689 (239 SE2d 699) (1977).

However, even if the stipulation had otherwise become valid and enforceable, the trial court nevertheless erred in finding appellant in contempt. “The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake. [Cit.]” (Emphasis supplied.) White v. State, 153 Ga. App. 808, 809 (266 SE2d 528) (1980). Thus, if the stipulation was otherwise valid and enforceable, appellant would nevertheless be authorized to withdraw it if he could show fraud or mistake and it was not contemptuous for him to have sought to do so. “An attorney may not be held in contempt of court merely for presenting in good faith a motion which he has a right to make, nor may an attorney be held in contempt merely because, having filed such a motion, he fails to prevail on it. [Cit.]” In re McLarty, 152 Ga. App. 399, 400 (2) (263 SE2d 194) (1979). Accordingly, if the trial was delayed, it was not because of appellant. Any delay was the result of the trial court’s failure to determine whether appellant had any viable ground for withdrawing the stipulation and, if not, to order that the trial would proceed pursuant to the stipulation.

Judgment reversed.

Banke, P. J., and Beasley, J., concur in the judgment only.


text:
    A91A0423.
    TRAVELERS INSURANCE COMPANY v. ADKINS et al.
    (407 SE2d 775)
   Sognier, Chief Judge.

We granted the application for discretionary review filed by Travelers Insurance Company (TIC) from an affirmance by operation of law under OCGA § 34-9-105 (b) from the Superior Court of Fulton County of an award entered by the State Board of Workers’ Compensation. TIC’s application was filed within 30 days from the date on which the Board’s award was affirmed by operation of law and thus was timely under OCGA § 34-9-105 (d). Compare Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990).

Appellee Dewey Adkins sustained a work related injury on July 15, 1988. Appellant denied Adkins’ claim on the basis that it had can-celled the workers’ compensation policy issued to his employer, appellee Labor Services, Inc. (LSI), effective May 1, 1988. The administrative law judge ruled in favor of appellant. Upon de novo review by the Board, however, the ALJ’s award was reversed, and by order dated April 27, 1990, appellant was required to provide coverage for the injury. Appellant filed an appeal to the superior court from this order. LSI moved the Board to correct a typographical error, which the Board did on May 16, 1990 in an order otherwise expressly adhering to its April 27 order.

1. We reject appellees’ argument that appellant seeks to have this court review directly an award of the Board. The notice of appeal clearly states that the appeal is from the automatic affirmance from the superior court of the Board’s order, and appellant’s enumeration is sufficient to point out the error complained of. See generally Childers v. Tauber, 160 Ga. App. 713, 714 (1) (288 SE2d 5) (1981).

2. We do not agree with appellees that our review of the affirmance of the Board’s order is somehow limited to a consideration of the propriety of the automatic affirmance thereof. Nothing in OCGA § 34-9-105 restricts this court’s review to that matter. The cases cited by appellees do not stand for the proposition that the appellate courts are restricted to considering the propriety of the automatic affirmanee. This court did not reach the merits of the appeal in Synthetic Indus., supra, because appellant therein had untimely appealed from the automatic affirmance, and it is hardly surprising that the merits of the Board’s awards were not addressed in Felton Pearson Co. v. Nelson, 260 Ga. 513 (397 SE2d 431) (1990) (see Nelson v. Felton Pearson Co., 195 Ga. App. 92 (392 SE2d 274) (1990)) and AT&T Technologies v. Barrett, 195 Ga. App. 675 (395 SE2d 22) (1990), since in both cases the procedural question whether the awards were affirmed by operation of law was the sole or dispositive issue on appeal. Rather than supporting appellees’ position, case law supports the principle that this court will address the merits of an appeal from an automatic affirmance in a workers’ compensation case. See Columbus Intermediate Care Home v. Johnston, 196 Ga. App. 516 (396 SE2d 268) (1990) (merits addressed without discussion of issue raised here). In reviewing a timely appeal from an affirmance of a workers’ compensation award, we see no rational basis to distinguish between an affirmance by written order of a superior court and one by operation of law. Thus, we will apply the same principles of review to an affirmance of the Board’s award by operation of law that we would apply had such an affirmance been by order of a superior court.

3. Appellees contend that there was no appeal in the superior court upon which the automatic affirmance provision in OCGA § 34-9-105 (b) could work because appellant’s notice of appeal to the superior court improperly designated the Board’s April 27, 1990 award, and no appeal was taken from the Board’s May 16, 1990 amended award, in which the Board corrected a typographical error in the April 27 order, pursuant to LSI’s motion. OCGA § 34-9-103 (b) provides that “within the time limit provided ... for appeal to a superior court,. . . notwithstanding the filing of an application for review or appeal, the board . . . issuing an award shall have authority to reconsider, amend, or revise the award to correct apparent errors and omissions. Should an amended or revised award be issued, the time period for filing an application for review of the amended or revised award ... or for filing appeal to a superior court under Code Section 34-9-105 shall commence upon the date of issuance of the amended or revised award.”

“[T]he proper statutory construction of OCGA § 34-9-103 (b) [is that w]ithin the [20] days subsequent to the date that [the Board] issues an award, [it] has ‘authority to reconsider, amend, or revise’ that award for the limited purpose of correcting ‘apparent errors and omissions.’ This authority exists notwithstanding the fact that... an appeal to a superior court may already have been filed as to the original award during the same [20]-day period. This authority may be exercised by the [Board] on [its] own motion or at the ‘suggestion’ of one of the parties. In the exercise of this authority, should the [Board] issue an amended or revised award, a new [20]-day time period for applying for . . . an appeal to a superior court as to that amended or revised award will commence on the date of its issuance. ... In short, OCGA § 34-9-103 (b) grants to both the ALJ and the Full Board a limited [20]-day ‘authority’ over workers’ compensation awards, which ‘authority’ is in the nature of a limited ‘continuing jurisdiction.’ ” (Emphasis supplied.) Aetna Cas. &c. Co. v. Barden, 179 Ga. App. 442, 443 (346 SE2d 588) (1986).

While there may be situations in which a party appealing from an award will necessarily have to refile its notice of appeal due to the substantive change brought about in an amended or revised award, such is not the case here, where the May 16 amended award merely corrected one obvious typographical error and otherwise expressly adhered to the April 27 award. Thus, although appellees’ argument could be applicable in a different factual context, it lacks any merit in the case sub judice.

4. We now address the merits of this appeal. Appellant contends affirmance of the Board’s award is error both as a matter of fact and as a matter of law. The record establishes that appellant issued three successive workers’ compensation policies to appellee LSI. The first policy covered the period from December 1986 to December 1987. A second policy operated from the end of the first policy until the third policy became effective for coverage from January 1, 1988 to January 1, 1989. Appellant cancelled the first policy on three separate occasions (the cancellations to have taken effect in March, July, and November 1987) for non-payment of premiums and reinstated that policy each time upon LSI’s payment of the premiums. The record supports the finding by the ALJ and the Board that in March 1988, appellant informed LSI it was cancelling the third policy effective May 1, 1988 due to LSI’s failure to pay over $17,000 appellant claimed was due as premiums on the first policy. LSI was also informed it owed $90 on the third policy; it paid that amount before May 1st. An audit conducted in April revealed that LSI actually owed only $6,071 on the first policy. Appellant received LSI’s payment of that sum on May 31, 1988. Three days later, on June 3, 1988, appellant sent LSI a premium notice of $3,700 on the third policy. The notice provided under “coverage description” that it was the “monthly audit 4-5/88.” LSI paid the premium on July 2, 1988; appellant negotiated the check on July 8, 1988; Adkins’ accident occurred July 15, 1988.

The Board found that appellant’s course of dealings with LSI on the first policy (i.e., cancelling the policy for non-payment of premiums then reinstating when the premiums were paid), coupled with the June 3, 1988 premium notice appellant sent LSI on the third policy after accepting LSI’s final payment of the premiums due on the first policy (the non-payment of which being the stated cause for cancelling the third policy), led LSI to believe that late payments of premiums would be honored and would effect a reinstatement of its current policy. Thus, applying the rationale in Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8 (1) (195 SE2d 417) (1973), the Board held that coverage was in force on the date in question. The Board then determined that due to the cancellation-reinstatement pattern of behavior between the parties, LSI was entitled to reasonable notice from appellant that appellant intended to rely on the exact terms of the agreement, citing General American Life Ins. Co. v. Samples, 167 Ga. App. 622 (307 SE2d 51) (1983). Because appellant did not so notify LSI, the Board refused to allow appellant to vary its pattern of behavior after the fact.

(a) Appellant first contends that because it complied with OCGA § 33-24-44 (b) regarding written notice of cancellation to the insured and State Board of Workers’ Compensation Rule 126 regarding documentation of the cancellation with the National Council on Compensation Insurance (NCCI), the Board erred by finding it responsible to provide insurance coverage to LSI on the date of Adkins’ injury. We do not agree with appellant that the law of mutual departure, OCGA § 13-4-4, as applied to insurance policies in Continental Cas. Co., supra, is inapplicable in the context of workers’ compensation insurance. As appellant points out, workers’ compensation insurance is but one form of casualty insurance. OCGA § 33-7-3 (2). While Board rules requiring documentation of certain matters with the NCCI do require additional action on the part of a workers’ compensation insurance carrier, we do not find, nor has appellant cited, any reason why Board Rule 126 should distinguish workers’ compensation insurance law from principles applicable to insurance law in general. Therefore, contrary to appellant’s argument, we do not agree that cancellation in compliance with OCGA § 33-24-44 (b) and Board Rule 126, regardless of other circumstances surrounding the cancellation, automatically entitles a workers’ compensation insurer to complete relief against a claim that the cancellation was not effective or applicable.

(b) Appellant next argues that the pattern of behavior displayed between the parties as to the first policy cannot be applied to action taken on the third policy because there is no legal nexus between the two policies. We do not agree. The record here reveals that the third policy was a renewal of the second policy, which was but a rewriting or renewal of the first policy. There is thus no difference between the case sub judice and Continental Cas. Co., supra, which likewise involved three successive policies issued in renewal. Id. at 9. Furthermore, while appellant correctly notes that the third policy contained a provision authorizing it to cancel that policy for any reason, the fact that appellant had an “unfettered right to cancel” does not affect the uncontroverted fact that the third policy was cancelled for nonpayment of a premium due on the first policy, thereby strengthening the evidence that LSI believed the pattern of behavior followed by the parties in regard to the first policy would likewise apply to the renewed policy.

(c) Appellant argues that its June 3rd premium notice to LSI did not constitute an initiation of contact with LSI regarding reinstatement but was merely a demand for payment due on coverage provided before the cancellation date. The Board, in considering this argument when raised before it by appellant, noted that appellant “never communicated to [LSI] that the premium payment in question would provide coverage only until May 1, 1988. Further, the evidence does not indicate that the June[ 3, 1988] premium notice was anything other than an offer to reinstate the 1988 policy.” In view of the noncommittal language used in the premium notice, we cannot agree with appellant that as a matter of law or fact, the Board incorrectly interpreted that document in its award. Accordingly, we find no error.

(d) Appellant contends that the Board erred by finding that there had been a mutual departure by the parties from the terms of the policy provisions so as to require appellant to give reasonable notice of an intent to require strict compliance because the Board’s finding was based on only the three prior instances where the cancellation/reinstatement behavior had occurred. “For a departure from the terms of a contract to be sufficient to require notice by one of the parties of his or her intention to insist upon strict compliance with the contract, the departure must be mutual and intended, such that the parties have essentially a new agreement concerning the requirements of the original contract. [Cits.]” Duncan v. Lagunas, 253 Ga. 61, 62 (1) (316 SE2d 747) (1984). However, while recognizing this well established principle behind the application of the law of mutual departure, OCGA § 13-4-4, the Supreme Court in Continental Cas. Co., supra, went on to note that “yet, whether there has been such a mutual and intended departure so as to make practically a new agreement is generally a question for a jury to determine. [Cit.]” Id. at 11. In this case, that determination was made by the Board. “[T]he board’s award, when supported by any evidence, is conclusive and binding. [Cits.]” Mansfield Enterprises v. Warren, 154 Ga. App. 863 (270 SE2d 72) (1980). Since there is some evidence that in handling disputes over the audited amounts of premiums due, appellant typically cancelled the policy but reinstated it once an agreement on the premium was reached and the money paid, “ ‘even though the evidence is not altogether complete and satisfactory,’ [cit.]” Jackson v. Armstrong, 149 Ga. App. 617 (257 SE2d 46) (1979), the Board’s award should and will be affirmed. Id.

5. Appellee LSI’s motion for imposition of sanctions for frivolous appeal is denied.

Decided June 20, 1991

Reconsideration denied July 2, 1991

Irwin, Bladen, Baker & Russell, B. A. Bladen, Thurbert E. Baker, for appellant.

Chilivis & Grindler, Nicholas P. Chilivis, Daniel P. Griffin, E. Neal Little, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       We note that the Supreme Court has granted the petition for certiorari in Facility Constructors v. Slauson, S91C0909, April 12, 1991 (discretionary appeal denied February 26, 1991 by unpublished order) to consider whether the automatic affirmance provision of OCGA § 34-9-105 (b) satisfies the requirements of due process.


text:
    A91A0437.
    THOMAS v. RGL ASSOCIATES.
    (407 SE2d 420)
   Sognier, Chief Judge.

Blyienaus M. Thomas filed a pro se “declaratory judgment action and petition for injunctive relief” against RGL Associates in the Superior Court of Ware County, and in lieu of a filing fee submitted an affidavit of indigence. That court denied filing pursuant to OCGA § 9-15-2 (d). Thomas then refiled the action in Glynn County. The trial court granted RGL’s motion to adopt the prior order of the Superior Court of Ware County denying filing, and Thomas appeals.

We affirm. In several enumerations of error, appellant contends the trial court erred because of actions taken by the clerk of court. Although we are conscious of our responsibility to ensure access to the courts, particularly to pro se litigants, we are unable to address most of appellant’s enumerations of error because she has based the majority of her contentions on facts which appear only in her brief. “ ‘We cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court.’ [Cit.]” Johnson v. Shield Ins. Co., 189 Ga. App. 333, 334 (375 SE2d 510) (1988). Rather, when resolution of the issue on appeal requires consideration of evidence, and “where the appellant fails to bring up a transcript or otherwise meet [her] burden of affirmatively showing error by the record, the judgment will not be disturbed.” (Citations and punctuation omitted.) Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989).

We do address, however, appellant’s contention that the trial court’s order denying filing was untimely entered. Although appellant is technically correct that an order denying filing (as the trial court’s order is denominated) was inappropriate because appellant had been allowed to file the action, and it had been answered, “[t]here is no magic in nomenclature; thus, in classifying the order of a trial court, we will construe it to serve the best interests of justice, judging the order by its function rather than by its name. [Cit.]” Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169-170 (1) (390 SE2d 257) (1990).

Decided June 5, 1991

Reconsideration denied July 2, 1991

Blyienaus M. Thomas, pro se.

Nightingale, Liles, Dennard & Jordan, Christopher J. O’Donnell, Rita C. Spalding, for appellee.

Appellant’s petition sought a declaration that she should not be required to make payments on a debt (the nature of which was not disclosed) because the payments exceeded her monthly income “after she has paid expenses for the necessities of life.” The gist of appellee’s motion was that appellant’s claim was utterly lacking in merit and should be dismissed. Accordingly, we will treat the trial court’s order as the grant of a motion to dismiss appellant’s action for failure to state a claim. Treating it ás such, we find no legal theory under which appellant could be granted the relief prayed for. “ ‘A correct decision of the trial court will not be reversed, regardless of the reasons given therefor.’ [Cit.]” Cleveland v. Williamson, 194 Ga. App. 476, 477 (2) (391 SE2d 22) (1990). Accordingly, we affirm the trial court’s order.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Carley, Judge. Beasley, Judge,

text:
    A91A0470.
    SPIVEY v. THE STATE.
    (407 SE2d 425)
   Carley, Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

At trial, the State relied upon the testimony of Randy Carter, a private citizen who had been working with police officials, to establish appellant’s guilt. After the State rested, appellant called Brenda Ross as a defense witness. The initial question posed to Ms. Ross was whether she had “some conversations — two in particular . . . late last December with Randy Carter. . . .?” Ms. Ross declined to answer this question and invoked the Fifth Amendment. Appellant’s counsel informed the trial court that the purpose of his questioning of Ms. Ross was not to have her incriminate herself but to have her recount conversations with Carter which were exculpatory of appellant and impeaching of Carter’s trial testimony. The trial court nevertheless sustained Ms. Ross’ invocation of the Fifth Amendment and it is this ruling that is the subject of appellant’s enumerations of error.

“The appropriate course where, as here, a witness invokes his right to remain silent is as follows: First, the trial court must determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the [witness]. [Cits.] On the other hand, where the trial court determines that the answers could not incriminate the witness, he must testify (or be subject to the court’s sanction). [Cits.] It is for the court to decide if the danger of incrimination is ‘ “real and appreciable.” ’ [Cit.]” (Emphasis in original.) Lawrence v. State, 257 Ga. 423, 424 (3), fn. 3 (360 SE2d 716) (1987). We fail to see how it could incriminate Ms. Ross merely to answer questions about such conversations as she may have had with Carter regarding Carter’s participation in the events leading up to appellant’s arrest and prosecution. Such limited questioning would appear to be calculated to elicit only potentially relevant testimony exculpatory of appellant, rather than incriminatory of Ms. Ross. See Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). If, in his questioning of Ms. Ross, appellant’s counsel did not pursue the relevant topic of Carter’s conversations regarding appellant’s guilt or innocence and strayed into an area which was potentially incriminatory of Ms. Ross herself, then it would be appropriate to allow Ms. Ross to determine whether her answer might be incriminating. “[T]he claim of privilege should be made when the question is asked and ... it cannot operate as a general prohibition of inquiry[.] [Cits.] The privilege against self-incrimination cannot be asserted in advance of the questions actually propounded in the examination or hearing. [Cit.]” Chastain v. State, 113 Ga. App. 601, 602 (3) (149 SE2d 195) (1966). The record demonstrates that the trial court, in effect, erroneously allowed Ms. Ross to invoke the Fifth Amendment as a general prohibition of appellant’s inquiry into the topic of her non-incriminatory conversations with Carter.

However, reversal of appellant’s conviction would not be authorized unless the error was harmful. Ms. Ross had taped her conversations with Carter and appellant’s counsel made a proffer of the transcripts of those taped conversations. We have reviewed those transcripts and find nothing therein that specifically relates to appellant’s arrest and prosecution or that is materially impeaching of Carter’s trial testimony and exculpatory of appellant. Carter’s conversations appear to relate only to his participation in the arrest and prosecution of individuals other than appellant. “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” OCGA § 24-9-83. If, in his conversations with Ms. Ross, Carter made statements regarding his participation in other arrests and prosecutions, those statements were certainly not inconsistent with or impeaching of his trial testimony regarding appellant’s arrest and prosecution. Likewise, the specifics of Carter’s statements to Ms. Ross regarding his participation in other arrests and prosecutions would not be admissible as impeaching evidence pursuant to OCGA § 24-9-84. “On direct examination of a witness for the purpose of impeaching another witness by proof of the latter’s general bad character and reputation[,] the examination must be confined to the general character of the witness, and questions as to specific acts are improper. [Cit.] “Particular transactions can not be inquired into to prove the bad character of a witness, except in cross-examination in seeking for the foundation and extent of the witness’s knowledge.’ [Cit.]” Haynes v. Phillips, 67 Ga. App. 574, 576 (1) (21 SE2d 261) (1942). Accordingly, even if the trial court had allowed appellant’s counsel to ask Ms. Ross questions regarding her non-incriminating conversations with Carter, it is clear that she would not have been able to give answers which were relevant to any issue in the case. Thus, the trial court’s error in allowing the invocation of Ms. Ross’s Fifth Amendment privilege was harmless.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur in the ruling that the court erred in prematurely allowing the witness’ invocation of the privilege against self-incrimination. I also agree that the error was harmless, but I am persuaded by the facts that the transaction for which defendant was on trial was tape-recorded, the playing of the tape was admitted (without objection) and even replayed in part for the jury, and both parties to the dialogue testified so that the jury could compare their voices to those on the tape.

The taped informant’s conversations with Brenda Ross, allegedly five months after the subject transaction, do not relate to this transaction but rather with one involving a person whose first or last name was Robert. The informant revealed to Brenda that he had lied at Robert’s trial in that the drugs he testified he bought from Robert had in reality come from the police and not from Robert. The informant told Brenda that the reason he lied was to save himself from a false prosecution for car theft, which was threatened by the chief of police, the sheriff, and the district attorney, who wanted to imprison Robert. He said he was bothered by the lie and expected to tell the truth about it in court in February to get it off his chest. (The court proceeding was not identified; the trial in this case did not occur until June.)

There was no mention of the instant transaction or of defendant’s name at all. Although the informant told Brenda that “Some of them drugs they (the police) sent to the lab was their own drugs. I tell you the God’s truth,” no reasonable inference could be drawn that he was referring to the cocaine in this case, so as to make the evidence relevant.

Decided June 11, 1991

Reconsideration denied July 2, 1991

Erion & Exum, Charles T. Erion, for appellant.

James L. Wiggins, District Attorney, H. Frederick Mullís, Jr., Assistant District Attorney, for appellee.

In the conversation with Brenda, the informant admitted that he used drugs himself, and he apparently was smoking marijuana during the first conversation. He denied at trial that he ever used drugs or smoked marijuana or stole a car, but these were not material discrepancies relevant to the informant’s testimony regarding the transaction in issue. See OCGA § 24-9-83; Reynolds v. State, 257 Ga. 725, 727 (5) (363 SE2d 249) (1988).

Since the excluded evidence would not have aided in establishing defendant’s innocence or created a reasonable doubt of his guilt, its absence from the jury’s consideration was harmless.


text:
    A91A0679.
    THE STATE v. AKINSONWON.
    (407 SE2d 434)
   Carley, Judge.

Based upon an encounter at the Atlanta airport, appellee was charged with having given a false name to a law enforcement officer. Appellee filed a pretrial motion to suppress and, at the conclusion of the hearing on appellee’s motion, the trial court stated that it did not “see that there’s been any . . . articulable suspicion [shown] by the State to even begin this sort of thing.” Accordingly, the trial court granted appellee’s motion in an order holding “that the State lacked any ‘articulable suspicion.’ . . .” It is from that order that the State appeals.

“ ‘Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief “stops” or “seizures” which must be accompanied by a reasonable suspicion; and “arrests” which must be supported by probable cause. [Cits.]’ [Cit.]” Calixte v. State, 197 Ga. App. 723, 725 (2) (399 SE2d 490) (1990). Thus, the existence of an articulable suspicion would have to be shown if the State had been seeking to uphold the search as the non-consensual product of an initial seizure of appellee. However, the State was not seeking to do so. It was the State’s position that the search was the consensual product of a mere verbal encounter which had involved no initial seizure of appellee and which need not have been supported by the existence of an articulable suspicion.

“Not every encounter between the police and a citizen is an intrusion which requires a reasonable suspicion of wrongdoing. ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ [Cit.] ‘The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” [Cit.] As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification. Moreover, characterizing every street encounter between a citizen and the police as a “seizure,” while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. . . [.] [A] person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ [Cit.]” King v. State, 161 Ga. App. 382-383 (1) (288 SE2d 644) (1982). Accordingly, a law enforcement officer’s act of merely approaching an individual, asking to see his identification, and posing to him a few questions is not a “seizure” and need not be justified by the existence of an articulable suspicion. McShan v. State, 155 Ga. App. 518 (1) (271 SE2d 659) (1980).

The State’s evidence showed that there had been no initial seizure of appellee, but a mere verbal encounter which had culminated in a consent search. Accordingly, the State understandably made no showing of any articulable suspicion such as would be necessary to justify a seizure of appellee. McShan v. State, supra. Appellee’s testimony presented a different version. Construing his testimony most favorably for him, appellee was not subjected to a mere verbal encounter, but was initially seized and then subjected to a non-consensual search. Thus, there was no dispute whatsoever as to the lack of an articulable suspicion. The only dispute was whether appellee had been “seized” prior to the search. However, the trial court did not base its ruling upon the factually disputed issue of whether there had been an initial seizure of appellee. Instead, the trial court based its ruling upon the factually undisputed lack of an articulable suspicion. If the trial court concluded that the State was required to show an articulable suspicion to justify initiation of a mere verbal encounter with appellee, the grant of the motion was predicated upon an erroneous legal theory.

Decided June 19, 1991

Reconsideration denied July 2, 1991.

Keith C. Martin, Solicitor, Kimberly C. Carr, Assistant Solicitor, for appellant.

Cowen & Cowen, Martin L. Cowen III, for appellee.

“ ‘ “(W)here there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is any evidence to authorize a finding in support of his order.” [Cit.] Although, in this case, the evidence [as to whether appellee was initially seized] was definitely conflicting, a review of the transcript statement of the trial court and of the written order itself reveals clearly that the trial court did not really resolve [this] disputed [issue] of fact. The trial court simply held that [the State had failed to show an articulable suspicion]. Furthermore, a review of the [transcript statement of the trial court] and the order also indicates that the trial court did not consider [whether the search was valid notwithstanding the lack of an articulable suspicion]. In this connection, we recognize that there is no requirement that the trial judge make specific findings of fact after a hearing on a motion to suppress. [Cit.] Thus, if, on this record containing conflicting testimony [regarding whether appellee was initially seized], the trial court had simply granted the motion to suppress, we would affirm [because seizure must be justified by at least an articulable suspicion]. [Cit.] In this case, however, the record shows that the trial court did not really make any findings of fact [as to whether appellee had been initially seized], articulated or not. . . . Accordingly, this case must be remanded to the trial court for redetermination of the relevant issues after consideration of all of the evidence. [Cits.]’ [Cits.]” State v. Lamotte, 196 Ga. App. 713-714 (396 SE2d 806) (1990).

Judgment reversed and case remanded with direction.

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