author: Beasley, Judge. Benham, Judge,

text:
    73231.
    HENDERSON v. THE STATE.
    (356 SE2d 241)
   Beasley, Judge.

Henderson, with Murray Gordon and Al Ikenberg, was charged with conspiracy to defraud the state (OCGA § 16-10-21 (a)) and two counts of theft by taking (OCGA § 16-8-2). Henderson was individually charged with two additional counts of theft by taking (OCGA § 16-8-2). All charges arose from what has become known as the “Capitol photography scandal.” Defendant Henderson appeals from his conviction and sentence on all five counts. Ikenberg pled guilty and Gordon’s conviction, in a separate trial, was recently affirmed. Gordon v. State, 181 Ga. App. 391 (352 SE2d 582) (1986), cert. granted February 18, 1987.

1. Defendant asserts error in the trial court’s failure to grant his motion to quash the indictment because of alleged improper return because it was taken from the grand jury room to the courtroom to be returned not by the grand jury bailiff but by a deputy clerk.

The evidence on the motion was conflicting. The deputy clerk stated that she received the indictment from the bailiff outside the grand jury room and took it on the elevator in the company of the bailiff and others to the courtroom, where she handed it to the bailiff for return to the court. The district attorney stated that the indictment remained in the possession of the bailiff until it was properly returned in the courtroom in open court.

This is not a case where there is contention concerning the return in “open court,” the subject of many decisions, but one concerning the possession of the indictment. The grand jury bailiff, by virtue of his oath, is empowered to take possession of the indictment from the grand jury and return it in open court without their presence. OCGA § 15-12-69; Davis v. State, 74 Ga. 869, 882 (1885); Danforth v. State, 75 Ga. 614, 620 (1885); see Cadle v. State, 101 Ga. App. 175, 180 (113 SE2d 180) (1960). The prosecutor may not do so. Bowen v. State, 81 Ga. 482, 484 (8 SE 736) (1888). There is no case dealing with the precise point at issue here, although it is established that the clerk does have a part to play in the proper return of the indictment and, in open court, may take the indictment from the bailiff and hand it to the judge. See Wilson v. State, 215 Ga. 446 (111 SE2d 32) (1959).

It is not necessary for us to decide whether, assuming the facts to be as defendant alleges, the motion was properly denied, for this case involves disputed facts which were resolved by the trial court in favor of the validity of the indictment. The trial judge was authorized to find that the indictment remained in the custody of the bailiff. This finding was not clearly erroneous and, on appeal, will be upheld. See Cunningham v. State, 255 Ga. 727, 730 (2) (342 SE2d 299) (1986).

2. Defendant contests the admission by the court of a statement made in 1978 to a private investigator concerning theft by a Fred Henderson of camera supplies from Crown Camera. While numerous grounds for objection were stated in the trial court, the ones argued on appeal are the following: a) failure to identify the defendant as the Fred Henderson who was interviewed; b) failure to comply with OCGA § 24-9-69; c) denial of defendant’s Georgia constitutional right to confrontation, Art. I, Sec. I, Par. XIV, and his federal Sixth Amendment right to confrontation; d) insufficient proof of the other crime, and failure to demonstrate that proof of the 1978 incident tended to prove the crime charged.

The charges against defendant and the others involved the dealings of the three individuals and their companies with the state. All three defendants were charged with conspiracy against the state during 1976 through 1984. They were all charged in Counts 1 and 2 with theft by taking via invoices submitted through Crown Camera (Ikenberg’s company) and Photo Service Company (Gordon’s company) for processing, printing, and reprinting of color film. Henderson alone was charged in Counts 4 and 5 with theft by taking for invoices submitted by his company, Custom Finishers, for the processing, developing and printing of black and white film.

The evidence showed that Crown Camera, purchased by Ikenberg in 1976, began dealing with the state and provided supplies for the House and Senate photographers as well as the House Information Office. The House and Senate photographers did mostly color work, while the majority of the House Information Office’s work was black and white. Although the capítol contained a black and white processing lab, all color processing and printing was originally handled through Crown. Gordon set up Photo Service to handle the “excess” color processing and printing, although Toco Color Labs did all of the processing and printing that was billed through both Crown and Photo. Henderson was also a photographer and began working for Crown prior to 1973, when he stopped working for Crown and began working for Gordon. Gordon was and had been for several years a commission salesman for Crown.

Henderson, while working for Gordon, attended the legislature when in session and picked up and delivered to Toco the film from all the photographers. He also assisted the House photographer by taking informal photos.

In 1979 or 1980, Henderson began submitting his own bills to the legislative fiscal office, originally using the name “Custom Printers” and then incorporating as Custom Finishers in 1980. Custom dealt only with black and white. Henderson testified and stated that he “just started” assisting the House photographer and never had a contract or agreement concerning what Custom or he would charge. In 1983, he told the governor’s new photographer that he would charge her his cost plus 25% to take care of her color processing and printing. There was also evidence that in 1982, when defendant itemized his Custom black and white invoices, he was charging $1.50 per 8" x 10" print and $3.00 to process a roll of film. Henderson ceased itemizing his invoices in late 1982 and began submitting invoices reflecting merely “processing” or “printing” without any quantities. He acknowledged that his invoices were inflated and reflected more prints and processing than he did but explained that the overage was to cover his $80 per hour fee for time spent taking pictures. He had not told anyone with the state about this $80 charge. The evidence showed markups on Crown, Photo, and Custom invoices of 400% or greater.

The 1978 incident arose when Ikenberg, owner of Crown, apparently had polygraph examinations performed on his employees and those with access to his store. At this time, defendant was technically employed by Gordon, commission salesman for Crown, and had unlimited access to the store. While the private investigator did polygraph defendant, no reference was made to that during his testimony. Only defendant’s admission that he had stolen small amounts of supplies over the three previous years and his later statement that he could not change his story were presented to the jury. At the time of the proffer of the investigator’s testimony, the state set out two purposes for the evidence: 1) that it might explain the discrepancies between what was billed to the state and what was delivered, and 2) that it would show the conspiracy because although Ikenberg had been given the report by the investigator, he continued to allow defendant unfettered access to his store. The rationale of the state’s theory was that all of the conspirators were making so much money from the fraud against the state that minor theft was not a concern.

In admitting the testimony, the court treated the incident as a like act and instructed the jury that it was to be considered only “under the provisions of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, and course of conduct, identity or other matters dependent upon a person’s state of mind, are involved as material elements for the offense for which he is on trial . . . .”

While similarity of the charged crime and the “like act” has been the focus of many cases, similarity is “not the only factor, nor is it necessarily the controlling factor. ‘The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case.’ [Cits.] Depending upon the purpose for which the extrinsic offense is offered, ‘the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar. [Cits.]’ ” Felker v. State, 252 Ga. 351, 359 (1 a) (314 SE2d 621) (1984). As noted by the Supreme Court in a footnote in Felker, “defendants’ knowledge that they did not have permission to take a car can be proven by evidence that they murdered the owner.” Felker, supra at 359, fn. 2.

Here, a logical connection between the 1978 incident and the charged conspiracy was shown. The incident occurred during the conspiracy period; the “victim” of the 1978 theft was a co-conspirator in the charged crime; even after receiving notice of defendant’s defalcations, Ikenberg continued to allow defendant access to the store and no one verified what was taken by him for delivery to the legislature; the store manager from 1981 to 1984 was told by Ikenberg that defendant and Gordon were responsible for keeping up with what was taken by Henderson and he, the manager, should not be concerned with it; the store manager from 1972 to 1980 who questioned Ikenberg about the large amounts being billed to the legislature by Crown for Gordon was told that that account was paying his salary and not to mention it again.

Although Ikenberg and Gordon were not tried with Henderson, the conspiracy charge was at issue, and acts involving or emanating from the co-conspirators were relevant to the conspiracy charge against defendant. Daniels v. State, 58 Ga. App. 599, 604 (2) (199 SE 572) (1938); Nelson v. State, 51 Ga. App. 207, 211 (180 SE 16) (1935). In determining whether a conspiracy existed, the jury was authorized to consider “acts and conduct of the parties, and from the nature of the acts done, the relation of the parties and the interests of the alleged conspirators.” Hewitt v. State, 127 Ga. App. 180, 183 (4) (193 SE2d 47) (1972). The 1978 defalcation did go to show the relationship between Ikenberg and defendant and was relevant to the conspiracy charge, answering defendant’s objection (d). The investigator’s testimony also was sufficient to show the theft. If an uncharged crime is relevant, as this one is, it need not be proven beyond a reasonable doubt. Kilgore v. State, 251 Ga. 291, 297 (3 c) (305 SE2d 82) (1983), nor need there be a charge or conviction relating to the incident. High v. State, 153 Ga. App. 729, 731 (2) (266 SE2d 364) (1980).

Defendant next contends that there was insufficient evidence that the 1978 incident involved him. The investigator was unable to identify defendant at trial, and was only able to say he interviewed a “Fred Henderson” with Crown Camera. Other evidence, however, proved that defendant was working for Gordon, the salesman for Crown, and was allowed free run of the store during that time. There was no indication that there was any other Fred Henderson associated with Crown. Defendant testified and did not contest that he was the Fred Henderson interviewed. “Circumstantial evidence may be used to establish a prior similar offense. [Cit.] Whether the circumstantial evidence is enough to show defendants to be the perpetrators of the other offenses is a matter for the jury to decide. [Cit.]” Baxter v. State, 160 Ga. App. 181, 184 (2) (286 SE2d 460) (1981).

Defendant also contends that, because the investigator failed to identify defendant as the Fred Henderson who made the statement he was deprived of his right to confrontation under the Sixth Amendment. In his brief, defendant raises also the state constitutional right, but no objection on this basis was made below and it will not be considered for the first time on appeal. McKissic v. State, 178 Ga. App. 23, 24 (3) (341 SE2d 903) (1986).

The federal argument, although not clear, apparently is that the state, by use of OCGA § 24-9-69, was able to elicit a particular portion of the defendant’s statement while excluding that portion of the statement in which he denied the theft, thereby depriving him of the right to confrontation.

OCGA § 24-9-69 states that “[a] witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” Because the investigator was unable to recall the incident, but did identify the memo from which he testified as having been prepared at his direction and at a time when the events were fresh in his mind, he was allowed to testify from it as to the defendant’s statements pursuant to OCGA § 24-9-69. Thus, the state complied with the requirements concerning the admissibility of the testimony concerning the statement, although this had nothing to do with the statement’s relevance, which was dealt with separately by the trial court and by this court supra. See Kines v. State, 67 Ga. App. 314 (1) (20 SE2d 89) (1942).

Because the witness was present and available for cross-examination, there has been no violation of defendant’s Sixth Amendment right. The confrontation clause guarantees the defendant in a criminal trial the general right to cross-examine the witness, that being the principal means by which the believability of a witness and the truth of his testimony are tested. Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982); see Higgs v. State, 256 Ga. 606, 608 (6) and (7) (351 SE2d 448) (1987); O’Kelley v. State, 175 Ga. App. 503, 507 (2) (333 SE2d 838) (1985).

The use by the witness of the memorandum in his testimony did not preclude a thorough and sifting cross-examination of him. See Lester v. S. J. Alexander, Inc., 127 Ga. App. 470, 473 (2) (193 SE2d 860) (1972). The fact that defendant chose not to elicit the denial of the theft from the witness was a strategic choice of his and is no basis for reversal. This is not a situation where cross-examination is thwarted by the court’s refusal to let the defense examine a memorandum used to refresh a witness’ recollection pursuant to the first clause of OCGA § 24-9-69. Baxter v. State, 254 Ga. 538, 548 (18) (331 SE2d 561) (1985). Defendant had a copy of the document being used by the witness and could have inquired concerning the exculpatory denial by defendant. This would not have resulted in the polygraph examination coming into evidence, which would not be admissible absent agreement by the defendant and the state. State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977).

The objection made at trial was that “the fact of some polygraph in past history somewhere, . . . wouldn’t be admissible.” It is only on appeal that defendant makes the argument that the statement, which was not part of the questions that defendant was polygraphed on, is inadmissible because it resulted from a polygraph. Objections not made below will not be considered for the first time here. McKissic v. State, supra at 24.

3. Defendant, in his third enumeration, contends that the trial court erred in failing to give a charge on theft by deception since, according to defendant, that was the theory upon which he was tried. A review of defendant’s requests to charge reveals that no request was made of the court to charge theft by deception. Also, after the court’s charge, the court specifically inquired of counsel for defendant if there were any objections to the charge. Only two were made, neither having to do with the court’s failure to charge theft by deception. Defendant did not reserve any further objections for appeal and may not now complain. “Clearly, it is the law of this state, even in criminal cases, that if the trial court asks if there are any objections to the charge given, counsel for the defendant must either state his objections or reserve the right to make such objections on motion for new trial or on appeal or waive any such objections.” Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986); Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980).

We note that the correctness of the charge given was determined in Gordon v. State, supra.

4. Defendant’s enumerations number 4 and 5 claim that sentencing him on both Counts 2 and 3, and on both Counts 4 and 5, was error because the incidents in each set constituted single transactions for which only one sentence was proper. This argument has also been decided adversely to defendant in Gordon, supra (3).

5. Defendant sought mistrial during the prosecutor’s closing argument. While two grounds were stated below, only one is argued on appeal, a statement concerning Billy Murphy, and only it will be considered. Court of Appeals Rule 15 (c) (2).

Billy Murphy, the House photographer and a friend of defendant, was called by the state. He testified that in October 1982 he received a $1,500 personal check from defendant. Defendant ceased itemizing his Custom invoices in November 1982. Murphy and the defendant both testified that the check was the result of defendant’s CPA advising him to sell some stock in Custom to someone he trusted, solely for tax purposes, and then to repurchase it. The sale to Murphy was effected by periodic payments by him to defendant of unknown amounts of cash in the total approximate amount of $500 to $700. No record was kept by either Murphy or Henderson of these amounts. Both testified that the check represented the repurchase and had nothing to do with the cessation of itemizing.

During his closing argument, defendant’s counsel argued as follows: “did you notice now you’re entitled to draw conclusions and deductions from what you see and hear in this courtroom? Did you conclude that the State put that evidence in because they believed Mr. Murphy’s story or they have put that evidence in because they wanted to embarrass him? Did you notice the manner in which he was interrogated on this witness stand? Did he [the prosecutor] give him an opportunity to explain in such a way that he wanted you to belief [sic] it? No.”

The prosecutor then, in his argument, stated: “Now, Mr. Spruell’s comment about the way I asked the questions, he said I asked the questions as if I didn’t believe Mr. Murphy, and I confess to you I didn’t. . . . And Mr. Murphy said that’s the story, that’s the story he testifies to, but is what Billy Murphy told you true?”

Defendant immediately objected and moved for a mistrial, on the ground that the prosecutor “has stated his personal beliefs in his argument, . . .” in that it was improper for the prosecutor to put up a witness and then state his personal belief as to the credibility of the witness. The court agreed and, although hot granting the mistrial, immediately instructed the jury that they were the ones trying the case, and “you will wholly disregard the statement of Mr. Kohler, counsel for the State, as being both irrelevant and improper. What Mr. Kohler believes in this case is not relevant and ... I want it to be foreign to your considerations . . .You are to wholly disregard it and give it no weight in your consideration whatsoever.” Immediately upon resuming his argument, the prosecutor apologized to the jury, saying “I. . . was wrong to say that, and the judge was correct in the reprimand of me.” Were the court’s actions sufficient?

The refusal to grant a mistrial because of the improper remarks of the prosecutor is within the discretion of the trial court pursuant to OCGA § 17-8-75, and the decision will not be disturbed on appeal absent manifest abuse. Harrell v. State, 253 Ga. 474, 476 (4) (321 SE2d 739) (1984); Welch v. State, 251 Ga. 197, 200 (6) (304 SE2d 391) (1983). This is true even where the prosecutor expresses his opinion on the ultimate issue, the guilt of the defendant. Shehee v. State, 167 Ga. App. 542, 544 (3) (307 SE2d 54) (1983). As held in Shehee, “in passing on a motion for a mistrial because of an improper comment by the prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury.” The court took immediate action and instructed the jury not to consider the opinions of the lawyers in arriving at their verdict. Under the circumstances of this case, we cannot say the court abused its discretion in not granting a mistrial.

During oral argument, defendant also argued that the trial court’s failure to rebuke the prosecutor made the curative instructions insufficient to cure the error. Assuming that the court’s actions did not technically amount to a rebuke, they were still sufficient to correct the problem caused by the remark. Ward v. State, 252 Ga. 85, 88 (2) (311 SE2d 449) (1984).

6. In enumerations 7 and 8, defendant argues that the evidence was insufficient in two respects: 1) that the state did not prove that the monies were “tax monies” and 2) that the evidence was insufficient to convict defendant on all counts. Although the enumeration states that all counts are in issue, only Counts 2 and 3 are argued and only they will be considered.

In determining whether the evidence supports the conviction, this court must ask whether a rational trier of fact could have found the essential elements of theft by taking beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979); Gordon v. State, supra. In so doing, we must view the evidence in the light most favorable to the verdict, construing all inferences and presumptions in favor of it. Harris v. State, 234 Ga. 871, 873 (218 SE2d 583) (1975); Boyd v. State, 168 Ga. App. 246, 248 (1) (308 SE2d 626) (1983).

The sufficiency of substantially the same evidence against Gordon has recently been found to be sufficient under this standard. Gordon v. State, supra (1). While defendant contends he had nothing to do with the billing procedures of Crown (Count 2) and Photo Service (Count 3), the evidence shows extensive participation by him in the business of both: he did the bulk of the deliveries for both companies; he was the primary representative of both companies at the legislature; he destroyed the Toco billing information for the legislature’s work. Without him, there would have been nothing for which Crown and Photo Service could have billed the legislature.

Regarding the element of “tax monies” there was sufficient evidence of this fact before the jury. The bills of all the subject companies were paid from monies in the General Fund of the state, and the greater percentage of that fund was made up of tax monies. Defendant’s own witness testified that 98% of the General Fund was consti-. tuted of tax monies.

7. Enumeration 9, that the conspiracy charge merged with the substantive charge, was decided adversely in Gordon v. State, supra (2).

8. Prior to trial, defendant moved for in camera review of the state’s file in order to determine if there was materially favorable evidence with regard to defendant’s guilt or punishment. With the consent of the state, the GBI investigative file was made part of the record and was reviewed by the court pursuant to the mandate of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). After trial, defendant learned that the rough notes of GBI agent Buckner had not been turned over. A hearing was held and Ms. Buckner testified that she dictated the typed “formal” file from her rough notes and there was nothing contained in these notes that did not appear in the formal report. These notes have been included in the record on appeal. Defendant alleges that the trial court erred in failing to compel the state to turn over “all files requested,” apparently referring to the rough notes of Ms. Buckner.

Brady does not require State agents to retain rough notes made in the course of their investigation. Hambrick v. State, 175 Ga. App. 207, 212 (11) (332 SE2d 907) (1985); Callahan v. State, 179 Ga. App. 556, 562 (3) (347 SE2d 269) (1986). Thus, it is not error for the trial court not to require these notes to be turned over for inspection. In this case, the notes are part of the record. There is nothing in them that does not appear in the formal report. Further, they contain nothing exculpatory and defendant has failed to show any Brady violation. Chenault v. State, 234 Ga. 216, 220 (3) (215 SE2d 223) (1975); Ramsay v. State, 175 Ga. App. 97, 98 (3) (332 SE2d 390) (1985).

9. Defendant filed three documents labelled “demurrers” before trial. The first, labelled “General Demurrers,” alleged failure to sufficiently set out a charge of conspiracy pursuant to OCGA § 16-10-21 and that the indictment did not charge any offense against the law of Georgia. The second, labelled “General and Special Demurrers,” without specific reference to any part of the indictment, claimed that it was arranged to “obscure the true issues of the case,” was “insufficiently explicit and irrelevantly distracting” and was loaded with “psychological harpoons and inflammatory verbocity.” The third, la-belled “Special Demurrers,” claimed prejudice with reference to a specific paragraph which referred to an alleged “confession” to stealing cash from Crown Camera. This reference was removed from the indictment, apparently pursuant to this demurrer.

On appeal, defendant argues only that Count 1, paragraphs 9-12, were inflammatory and unfairly prejudicial assertions, apparently arguing that the court’s failure to grant his second demurrer was error.

While a general demurrer challenges the very validity of the indictment, a special demurrer objects merely to its form or seeks more information. State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). If no prejudice is shown to have accrued to the defendant by the overruling of the special demurrer, any error may be harmless. State v. Eubanks, supra at 488. Here, the acts complained of in Paragraphs 9-12 all relate to Custom Finishers, the false invoices submitted for Custom, and the $1,500 check paid to Billy Murphy. Even assuming that these acts were not part of the conspiracy, i.e., that defendant acted totally alone concerning these acts, the acts were relevant to the charges contained in Counts 4 and 5 and were properly considered by the jury.

“When an appellate court reviews the merits of a special demurrer after trial has been held and no prejudice to appellant has occurred even though the indictment is not perfect, ‘reversal is a mere windfall to defendant and contributes nothing to the administration of justice. [Cits.]’ As appellant has shown no prejudice resulting from the alleged defect in the indictment, we find no error.” Hambrick v. State, 175 Ga. App. 207, 209 (4), supra.

Judgment affirmed.

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

Benham, Judge,

dissenting.

I must respectfully dissent from the affirmance of appellant’s convictions for theft by taking (Counts 2 and 3) for two reasons.

1. In addressing appellant’s enumeration of error questioning the sufficiency of the evidence presented against him, the majority opines that the evidence presented against appellant was substantially the same as that recently found by this court to have been sufficient in the separate trial of appellant’s co-indictee. See Gordon v. State, 181 Ga. App. 391 (352 SE2d 582) (1986), cert. granted Feb. 18, 1987. In Gordon, supra, I filed a dissenting opinion in which I presented my view that in order to convict Gordon of theft by taking, the State had chosen to attempt to prove he had committed theft by deception and had failed to do so, causing Gordon’s convictions for theft by taking to fall due to a lack of sufficient evidence to support them. I have the same difficulty in the case at bar: I fail to find evidence that the State’s property was taken from it against its will (Stull v. State, 230 Ga. 99 (1) (196 SE2d 7) (1973); that a false impression as to an existing fact or past event was created by appellant or his co-conspirators and not corrected by them (OCGA § 16-8-3 (b) (1) and (b) (2); Sassoon v. State, 138 Ga. App. 172, 176 (225 SE2d 732) (1976); Croy v. State, 133 Ga. App. 244 (1) (211 SE2d 183) (1974)); or that the State entered into a definite contract with appellant or his co-conspirators. OCGA § 16-8-3 (b) (5). In light of the lack of evidence on all of these points, I must dissent on the ground that the evidence was not sufficient for a rational trier of fact to have found appellant guilty beyond a reasonable doubt of theft by taking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 19, 1987

Rehearing denied April 3, 1987

Billy L. Spruell, for appellant.

Robert E. Wilson, District Attorney, Michael J. Bowers, Attorney General, Harrison Kohler, Senior Assistant Attorney General, George P. Shingler, Assistant Attorney General, for appellee.

2. I also dissent from the majority’s conclusion that appellant waived his objection to the trial court’s failure to instruct the jury on the elements of theft by deception. It is my belief that the failure to give a charge on theft by deception constituted “a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” OCGA § 5-5-24 (c). “To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.” Hamrick v. Wood, 175 Ga. App. 67 (2) (332 SE2d 367) (1985). I believe the failure to give a charge on theft by deception in this case meets the criteria set forth in OCGA § 5-5-24 (c) and Hamrick v. Wood, supra. For this reason also, I respectfully dissent from the opinion of the majority.

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

       While defendant argues that the state had intentionally developed a trial tactic that would allow it to put Murphy up and then express disbelief in his truthfulness, the record does not support such an argument.

       Since defendant does not now argue that Count 1 failed to properly allege conspiracy, there is nothing before us concerning the General Demurrer filed below.


source: Caselaw Access Project

author: Benham, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    73309.
    REID v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
    (356 SE2d 77)
   Benham, Judge.

Appellant was injured when she tripped over a temporary service wire laid by an employee of appellee Southern Bell Telephone & Telegraph Company (“Southern Bell”) on appellant’s premises. Following the trial court’s grant of summary judgment to Southern Bell, appellant filed this appeal.

It is agreed that an employee of Southern Bell made a visit on Saturday, July 24, 1982 to appellant’s place of business, located adjacent to her home, to repair the telephone line between appellant’s business and residence. After receiving appellant’s approval, the repairman laid a temporary wire along the ground from the residence to the business, a distance of 75 feet. The repairman advised appellant that this was a temporary measure until the line could be buried. No flags or warning markers were attached to the temporary wire. On August 2, nine days after the temporary wire was laid, appellant tripped over the wire while doing yard work, and injured her right knee.

In her affidavit filed in opposition to Southern Bell’s motion for summary judgment, appellant swore that the serviceman told her the line would be buried on Monday, July 26 and that her presence on the property during that operation was not necessary; that the wire’s presence was in no way marked; and that the wire lay concealed in the grass nine days later when she fell. The serviceman denied giving appellant a day certain for burial of the line. Appellee maintains it was entitled to summary judgment inasmuch as the evidence showed appellant was aware of the wire on her premises and knew or should have known that the wire was still in place on the day she tripped. Appellant, on the other hand, contends that summary judgment in favor of appellee was inappropriate because she had no reason to believe the wire was unburied, having been assured by appellee’s employee that the wire would be buried on Monday, July 26.

On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Fiumefreddo v. Scudder, 252 Ga. 279, 282 (313 SE2d 683) (1984). See also Georgia Intl. &c. Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985). In a slip and fall case, “it is a plaintiffs knowledge of the specific hazard which precipitates the slip and fall which is determinative . . .” Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982). There is no question that appellant was aware of the existence of the hazard on July 24-26. The question is whether appellant is deemed to have knowledge of the hidden hazard after having been assured that it was to be removed as of a certain date.

Construing, as we must, the evidence in the light most favorable to appellant, we conclude that while appellant may have been aware of the danger the wire presented on the day it was laid and on the two following days, whether appellant exercised that duty of care commensurate with her knowledge a week after she was told the wire would be buried is a circumstance to be considered by the jury in determining if appellant exercised due care for her personal safety. See Grier v. Jeffco Mgt. Co., 176 Ga. App. 158, 159 (335 SE2d 408) (1985). The cases cited by appellee are distinguishable: in both Shamis v. Southern Bell &c. Co., 155 Ga. App. 513 (271 SE2d 658) (1980), and Tidwell v. Southern Bell &c. Co., 156 Ga. App. 153 (274 SE2d 137) (1980), the plaintiffs were aware of the continual existence of the hazard; in the case at bar, there exists a question of fact whether appellant was aware or should have been aware of the continuing nature of the hazard.

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

Insofar as it was undisputed that the appellant had actual knowledge that the service wire was placed on the ground, summary judgment for the appellee was proper. Tidwell v. Southern Bell Tel. &c. Co., 156 Ga. App. 153 (274 SE2d 137) (1980); Shamis v. Southern Bell Tel. &c. Co., 155 Ga. App. 513 (271 SE2d 658) (1980). Her assertion that she thought that the wire had already been buried is unavailing, since the fact that no trench (seventy-five feet long) had been dug certainly provided adequate notice to the appellant that the wire had not yet been buried. See Apostol-Athanasiou v. White, 176 Ga. App. 178 (335 SE2d 442) (1985). The trial court’s grant of summary judgment for the appellee thus should be affirmed.

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

Decided March 17, 1987

Rehearing denied April 3, 1987

Lawrence J. Hogan, Jane Reed, for appellant.

William J. Ellenberg II, R. Phillip Shinall III, for appellee.


author: Benham, Judge.

text:
    73318.
    PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA v. ASHLEY et al.
    (356 SE2d 230)
   Benham, Judge.

Appellant Protective National Insurance Company of Omaha (“Protective”) issued to appellees Donald and Carol Ashley an insurance policy covering their mobile home. The expiration date of the policy was April 18, 1983. Sixty days prior to the expiration of the policy, Protective, through the Jarvis Insurance Agency, Inc., provided the Ashleys with a written reminder that the policy would expire if payment of $107 was not received by April 18, 1983. Mrs. Ashley admitted on deposition that she had received three notices that payment was required for continuation of coverage, but that she and her husband had decided not to reply to the notice because they intended for the policy to expire.

In fact, on March 12, 1983, the Ashleys obtained property insurance with Cotton States Insurance Company (“Cotton States”) and set the effective date of coverage for April 18, 1983, the same date their policy with Protective would expire. On August 21, 1983, the Ashleys incurred a loss when the insured property was destroyed by fire. The Ashleys notified Cotton States of the loss but did not notify Protective, because, as they testified, since they had not paid the premiums to renew, they considered their policy with Protective to have expired on April 18, 1983. Protective did not receive notice of the loss until several months later when an agent for Cotton States informed it of the Ashleys’ claim. The agent acting on behalf of the Ashleys also informed Protective that since it had not mailed a notice of non-renewal or cancellation to the Ashleys pursuant to OCGA § 33-24-46, its policy did not expire on the expiration date and it was liable for some or all of the Ashleys’ claim.

In August of 1984, the Ashleys executed a loan receipt to Cotton States in the amount of $45,019.56. Cotton States’ policy with the Ashleys was in full force and effect at the time the property was destroyed. Cotton States, in the name of the Ashleys, filed a subrogation action against Protective seeking complete reimbursement for the total sum it had paid to the Ashleys. The trial court denied appellant’s motion for summary judgment and granted summary judgment to the appellees. Appellant asserts that the trial court erred in granting appellees’ motion and in denying appellant’s motion because, among other grounds, its compliance with OCGA § 33-24-46 was sufficient. We agree.

OCGA § 33-24-46 provides that the insurer must send to the insured a notice of nonrenewal or cancellation if the insurer fails or refuses to renew or cancels the policy. Appellees argue that since Protective failed to send them such a notice of nonrenewal, its policy did not expire on the policy expiration date. The Ashleys admit, however, that Protective did send them timely renewal notices which stated the policy would expire if premiums of $107 were not paid by the expiration date.

“The purpose of [the notice provision] is to provide the insured with notice as to the status of his policy. When the record affirmatively shows compliance with the statute by the insurer, knowledge of the policy’s status, and admitted inactivity and non-response by the insured to effect a renewal thereof, the law should not create a contractual relationship due to after-the-fact circumstances. [Cit.]” Whitlock v. Dairyland Ins. Co., 160 Ga. App. 113 (1) (286 SE2d 343) (1981). Although Whitlock applies a different statute and concerns a different type of insurance, the purposes of the notice provisions are the same and the principle stated in that case is equally applicable to this case.

The record here shows that appellant sent timely notices to the Ashleys that their policy would not continue past the expiration date without the payment of premiums in a stated amount by a stated date. We find that sufficient to inform the Ashleys that the policy would not be renewed without payment of premiums. The notice was “sufficiently clear and specific so that a person of average intelligence [could] identify the basis for the insurer’s decision without further inquiry.” OCGA § 33-24-46 (f). Indeed, the Ashleys testified that it was their understanding the policy would expire on the expiration date and that they chose to allow it to expire because they wanted, and did procure, insurance from another insurer. Accordingly, we hold that the purpose of OCGA § 33-24-46 was met by the procedure followed in this case and that the policy issued by appellant expired prior to the occurrence of the Ashleys’ loss. It follows that appellant has no liability for that loss and that the trial court erred in granting summary judgment to appellees and denying summary judgment to appellant.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.

Decided March 17, 1987

Rehearing denied April 3, 1987

J. Wayne Pierce, Alfred A. Quillian, Jr., for appellant.

Jon B. McPhail, Richard L. Patton, for appellees.


author: Pope, Judge. Carley, Judge,

text:
    73421.
    ESQUIRE MOBILE HOMES, INC. v. ARRENDALE et al.
    (356 SE2d 250)
   Pope, Judge.

Appellees brought this action seeking, inter alia, revocation of their acceptance of delivery of a mobile home which they had purchased from appellant dealership. The jury found the mobile home to be “nonconforming” under the Uniform Commercial Code and directed appellant to take back possession of it. The jury also awarded appellees $10,000 in actual damages and $7,130 in attorney fees. Appellant brings this appeal from the entry of judgment on the verdict.

Appellees purchased from appellant a mobile home manufactured by Spirit Homes, Inc. They had carefully inspected the mobile home on appellant’s lot prior to purchase and found nothing wrong with it. However, almost immediately upon appellant’s delivery and set up of the mobile home on their property, appellees began to experience problems. They contacted appellant which in turn contacted the manufacturer. Several attempts were made by the manufacturer to rectify the problems appellees were experiencing, but ultimately those attempts were unsuccessful. Appellees then notified appellant that they were revoking their acceptance of the mobile home and requested appellant to remove the mobile home and reimburse them for expenses incurred in relation to this matter.

1. Appellant’s first enumeration of error alleges that there is no evidence to support the jury’s verdict that the mobile home was “nonconforming.” In support of this assertion, appellant cites the purchase agreement which provided that it was selling a new, brown 1984 Spirit mobile home, model 4009, serial number 1959, containing three bedrooms and being 60 feet in length and 24 feet in width. Appellant contends that since it delivered the precise mobile home described in the contract, there was no evidence of nonconformity, notwithstanding any alleged defects. We reject this analysis.

OCGA § 11-2-106 (2) provides: “Goods or conduct including any part of a performance are ‘conforming’ or conform to the contract when they are in accordance with the obligations under the contract.” “Nonconformity cannot be viewed as a question of the quantity and quality of goods alone, but of the performance of the totality of the seller’s contractual undertaking. [Cit.]” Irrigation Motor &c. Co. v. Belcher, 29 Colo. App. 343, 347 (483 P2d 980, 9 UCC Rep. Serv. 60) (1971). “The concept of nonconformity ‘includes not only breaches of warranties but also any failure of the seller to perform according to his obligations under the contract.’ [Uniform Commercial Code § 2-714, Comment 2].” Ford Motor Credit Co. v. Harper, 671 F2d 1117, 1122 (8th Cir. 1982). Applying these principles to the facts in the case at bar, we find ample support for the jury’s finding that the mobile home was “nonconforming.” Accord Jorgensen v. Pressnall, 274 Or. 285 (545 P2d 1382) (1976). See generally Marine Mart v. Pearce, 252 Ark. 601, 608 (480 SW2d 133) (1972), and O’Neal Ford v. Earley, 13 Ark. App. 189, 192 (681 SW2d 414) (1985), setting forth the general rule that the question of whether goods are nonconforming is a question of fact to be determined within the framework of the facts of each particular case.

2. Appellant’s second enumeration cites as error the denial of its motion for directed verdict on the ground that liability against it was precluded by an exclusion of warranties in the purchase agreement. The short answer to this assertion is that revocation of acceptance under OCGA § 11-2-608 “is an available remedy even where the seller has attempted to limit its warranties. [Cit.]” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 851 (278 SE2d 689) (1981); accord O’Neal Ford v. Earley, supra; Blankenship v. Northtown Ford, 95 Ill. App. 3d 303 (420 NE2d 167, 50 Ill. Dec. 850) (1981).

In any event, even assuming the efficacy of appellant’s compliance with the statutory requirements for exclusion or modification of warranties (see OCGA § 11-2-316), we find no merit in this enumeration of error. We are guided in this matter by the holding in Freeman v. Hubco Leasing, 253 Ga. 698 (4) (324 SE2d 462) (1985). Similar to the plaintiff in Freeman, appellees in the case at bar sought to revoke acceptance of the mobile home pursuant to OCGA § 11-2-608. “The parties to a contract subject to the UCC may provide for remedies in substitution of those provided by the UCC, and may limit the measure of damages. . . . OCGA § 11-2-719 (1) (a). However, ‘(w)here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.’ OCGA § 11-2-719 (2). The Official Comment to this section states: ‘(I)t is of the very essence of a sales contract that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article they must accept the legal consequence that there be at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract. Thus any clause purporting to modify or limit the remedial provisions of this Article in an unconscionable manner is subject to deletion and in that event the remedies made available by this Article are applicable as if the stricken clause had never existed. Similarly, under subsection (2), where an appar ently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this Article.’ (Emphasis supplied.) [Cit.]” Id. at 705.

Appellant’s exclusion of warranties contained in the purchase agreement provided that appellees “understand that the implied warranties of merchantability and fitness for a particular purpose and all other warranties express or implied are excluded by [appellant] from this transaction and shall not apply to the goods sold [and that they further] understand that [appellant] make[s] no warranties whatsoever regarding the unit or any appliances or component contained therein, except as may be required under applicable state law.” The purchase agreement also provided that appellant would deliver to appellees copies of any written warranties supplied by the manufacturer. As noted earlier, the manufacturer unsuccessfully attempted to rectify the problems with the mobile home. Since that time, however, the manufacturer has gone out of business and is no longer available for warranty work.

Thus, like the situation in Freeman, appellant seller took no responsibility for the merchantability and fitness of the mobile home despite appellees’ obligation to pay over $66,000, including finance charges. In other words, the purchase agreement excluded all remedies of appellees except those which they may have had against the now-defunct manufacturer. “OCGA § 11-2-719 (1) (a) . . . allows the parties to provide substitute remedies and limit damages, not bar all remedies and avoid all damages. Under the circumstances of this case we find [appellant’s exclusion of warranties] to be unconscionable.” Freeman, supra at 706. Thus, the trial court did not err in denying appellant’s motion for directed verdict.

3. Appellant’s third enumeration cites as error the trial court’s charge allowing recovery of attorney fees if appellant had acted in bad faith or had been stubbornly litigious or had caused appellees unnecessary trouble and expense. See OCGA § 13-6-11. “To warrant the court in charging the jury on a given topic . . . it is not necessary that the evidence should shine upon it with a clear light. It is enough if glimpses of it be afforded by the evidence. Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.” Brown v. Matthews, 79 Ga. 1 (2) (4 SE 13) (1887). There being some evidence of record by which the jury was authorized to find that appellant had been stubbornly litigious and had caused appellees unnecessary trouble and expense, the trial court did not err in its charge in this regard. See, e.g., Chambers & Co. v. Harper, 83 Ga. 382 (2) (9 SE 717) (1889); Lindsey v. Heard Oil Co., 170 Ga. App. 572 (3) (317 SE2d 597) (1984). See generally Ken- Mar Constr. Co. v. Bowen, 245 Ga. 676 (266 SE2d 796) (1980).

4. Appellant’s remaining enumerations cite as error the trial court’s refusal to give certain of its requests to charge dealing with breach of warranty, exclusion of warranties, and mitigation of damages. However, in light of the holdings in Divisions 1 and 2, supra, and in view of the entire charge as given by the trial court, we find no ground for reversal. See generally Columbus, Ga. v. Smith, 170 Ga. App. 276 (3) (316 SE2d 761) (1984).

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., and Ben-ham, J., concur. Beasley, J., concurs in Divisions 1, 3 and 4 and in the judgment. Deen, P. J., Banke, P. J., Carley and Sognier, JJ., dissent.

Carley, Judge,

dissenting.

I cannot agree with the majority’s decision affirming the judgment of the trial court in this case. Under the circumstances before us, it is my opinion that appellant was entitled to judgment as a matter of law and, therefore, I must dissent.

In Division 1 of the opinion, the majority, relying primarily upon foreign authority, finds that there was evidence to support the jury’s verdict that the mobile home was “nonconforming.” As the majority recognizes, however, the plaintiffs in this case obtained and received exactly what the contract between the parties described. In fact, they received the exact mobile home which they had viewed and selected on the dealer’s lot. The majority opinion blurs the distinction between “nonconforming” and “defective.” The effect of the majority’s ruling is to allow every purchaser who later believes the item purchased is defective to seek to rescind the contract on the basis of allegations that the object of the sale was “nonconforming.” I do not believe this is the law. Compare Hill Aircraft &c. Corp. v. Planes, Inc., 169 Ga. App. 161 (312 SE2d 119) (1983). See also Bicknell v. B & S Enterprises, 160 Ga. App. 307 (287 SE2d 310) (1981). Thus, it is my opinion in the case at bar that, regardless of any defects which may have existed in the product sold, the product itself was not “nonconforming” and this issue was erroneously submitted to the jury.

In Division 2 of the opinion, the majority finds unenforceable, as unconscionable, the exclusion of implied warranties contained in the agreement between the parties. Paragraph 9 of the contract states as follows: “EXCLUSION OF WARRANTIES. I UNDERSTAND THAT THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED ARE EXCLUDED BY YOU FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE GOODS SOLD. I UNDERSTAND THAT YOU MAKE NO WARRANTIES WHATSOEVER REGARDING THE UNIT OR ANY APPLIANCES OR COMPONENT CONTAINED THEREIN, EXCEPT AS MAY BE REQUIRED UNDER APPLICABLE STATE LAW.” In addition to being in all capital letters, paragraph 9 of the contract was in boldface type. Therefore, the contract in this case clearly and unequivocally met the requirements for valid exclusion of implied warranties as set forth in OCGA § 11-2-316.

Decided March 19, 1987

Rehearing denied April 3, 1987

James E. Brim III, for appellant.

Ernest H. Woods III, for appellees.

In determining the otherwise valid exclusion of implied warranties to be “unconscionable” in this case, the majority is persuaded by the fact that the manufacturer, whose warranties the plaintiffs received and took advantage of for some time, has become defunct. The problem with this analysis is that the statutory provision authorizing a court to refuse to enforce a contract because of unconscionability is contingent upon the finding of the court that the contract was “unconscionable at the time it was made. . . .” (Emphasis supplied.) OCGA § 11-2-302. At the time of the execution of this contract, there is no doubt that the exclusion of warranty provision was in conformity with the requirements of the law and was not unconscionable. The Supreme Court case of Freeman v. Hubco Leasing, 253 Ga. 698 (324 SE2d 462) (1985) is distinguishable because in Freeman, the effect of the disclaimer, under all of the circumstances of the agreement and the facts of the case, was to deprive the purchaser of any remedy. I believe that the implied warranty disclaimer in this case is valid and enforceable and that the trial court erred in denying appellant’s motion for directed verdict.

Because, based upon the above discussion, it is my opinion that appellant is entitled to judgment as a matter of law, I would not reach the issues concerning attorney fees as discussed in Division 3 nor the enumerations directed to the charge as discussed in Division 4. I would reverse the judgment of the trial court and, therefore, I respectfully dissent.

I am authorized to state that Presiding Judge Banke and Judge Sognier join in this dissent and that Presiding Judge Deen joins this dissent except that as to Division 2 of the majority opinion, he joins this dissent in judgment only.


text:
    73492.
    ITT-CONTINENTAL BAKING COMPANY et al. v. POWELL.
    (356 SE2d 267)
   Beasley, Judge.

We granted ITT’s application for discretionary review of the trial court’s affirmance of a workers’ compensation award to claimant Powell.

Claimant’s duties required prolonged standing on a concrete floor. Because of swelling and pain in his feet, claimant consulted a podiatrist not on the employer’s list of approved physicians. When the problems worsened claimant left his employment on June 9, 1984, and had surgery on June 19. He returned to work in September, having filed a claim for medical insurance, but then at the end of November he notified ITT that he wished to file a workers’ compensation claim.

ITT filed a WC-1 form (Employer’s first report of injury) with the Board on December 21. It contained a notice to controvert which recited that “Mr. Powell’s present disability is the result of a congenial [sic] defect and is unrelated to his employment with Continental Baking.”

The ALJ found: Shortly after he began work as an oven operator with ITT, claimant noticed his feet were gradually getting worse. His supervisor noticed he was limping with increased frequency. Claimant told his supervisor that his feet had bothered him for a long time but he had begun to limp after starting work. The supervisor told claimant to see a doctor. Subsequently claimant told his supervisor that prolonged standing on concrete caused his feet to swell and he was to have surgery on June 9, 1984. When claimant returned to work on September 8, he changed jobs to dough mixing at a higher wage and regular hours. After his discharge on March 24, 1985, claimant related he had problems with his feet in that he was unable to bend his toes and thus perform any work requiring him to bend or squat.

Claimant’s podiatrist found multiple medical problems with his feet. The podiatrist’s opinion was that claimant’s conditions were preexisting and became worse with time, and that prolonged weight bearing on concrete surfaces hastened the onset of pain. A doctor for ITT testified that it was not clear whether claimant’s employment caused the foot pain but it did not cause his foot deformity. The doctor questioned the use of surgery rather than conservative methods and stated he did not think there was any clearcut medical opinion as to whether a short history of working on concrete floors would justify foot surgery or workers’ compensation coverage.

Based on these facts, the ALJ found claimant sustained a compensable injury on June 9 and that he underwent a further change of condition from ability to work to total disability on March 24, 1985. Claimant was awarded medical benefits for the services of his podiatrist as well as income benefits from June 9 to September 8, 1984, and from March 24, 1985, until terminated by law. The full board adopted the ALJ’s findings and added that “claimant’s inability to secure suitable employment after March 24, 1985, was caused by his compensable injury.”

ITT posits three grounds for its position that the superior court erred in affirming the award: 1) claimant’s condition did not arise out of and in the course of his employment and thus he did not suffer a compensable injury; 2) claimant used a physician not on the panel, relieving ITT of responsibility for medical expenses; 3) claimant was not entitled to disability benefits after his termination because there was no evidence that he was unable to secure employment due to his alleged foot condition.

1. Discretionary review was not granted to reexamine the any evidence rule or the principle that an employer takes his employee as it finds him and assumes the risk of a diseased condition aggravated by injury. Colonial Stores v. Hambrick, 176 Ga. App. 544, 545 (3) (336 SE2d 617) (1985). Since there was some evidence that claimant’s preexisting condition was aggravated by his job, the award of income benefits from June 9 to September 8, 1984, will not be disturbed. Home Indem. v. Brown, 141 Ga. App. 563, 566 (2) (234 SE2d 97) (1977); Home Ins. Co. v. McEachin, 151 Ga. App. 567 (260 SE2d 560) (1979).

2. The medical expenses are not ITT’s responsibility. Claimant made no effort to select from the panel of physicians but chose his doctor and used his services before the filing by employer of a notice to controvert. State of Ga. v. Tungler, 181 Ga. App. 21 (351 SE2d 248) (1986) is controlling. Accord Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654, 656 (2) (350 SE2d 299) (1986).

Initially, claimant argued that since the employer ITT controverted the claim it could not restrict his choice of physicians under Boaz v. K-Mart Corp., 254 Ga. 707 (334 SE2d 167) (1985). Tungler distinguished Boaz on the fact that in Tungler, notice to controvert was given after the employee’s choice of physicians. Of course, if within 21 days after knowledge of the injury the employer files a notice to controvert the claim, then from that point forth the employee may select any physician he chooses and the employer need give no further notice that it will not pay medical expenses.

By supplemental brief, claimant changed tack, pointing out that the employer failed to file a notice to controvert within 21 days of notice of the accident. From that premise it is argued that the employer should not be allowed to question claimant’s selection of a physician. This argument overlooks that the primary effect of the notice to controvert is on the payment of income benefits.

A distinction must be recognized between income benefits and medical expenses. Income benefits are to be paid automatically once the employer is notified of the injury, unless the employer in return informs the employee by means of a notice to controvert that in its view the injury is not compensable as not arising out of and in the course of the employment, etc. OCGA § 34-9-221.

Employer-liable medical expenses, on the other hand, initiate with the services of a physician selected from the approved list (except when justified otherwise) as required by OCGA § 34-9-201 (c). When the expenses arise from treatment by one not on the approved list, nothing would trigger a decision to pay these expenses or controvert liability for them until the employer is informed of their incurrence.

This fundamental difference between the two types of claims and how they mature is illustrated by a typical example. An employee is injured on the job and notifies the employer who, since the injury is job-related, begins to pay income benefits while the employee is absent from work. OCGA § 34-9-221. Sometime later the employee is operated on by a physician not on the list. The employer still continues to pay disability income benefits. The employee then seeks payment of his medical expenses from the employer. At this point, the employer would inform the employee of its refusal to pay such medical benefits, on the ground that it is not responsible for them because the expenses did not originate with a listed physician (OCGA § 34-9-201 (c)). This would not affect the employer’s continuance, or refusal to continue, the payment of income benefits.

Rule 221 (d) of the Workers’ Compensation Board provides: “To controvert in whole or in part the right to income benefits or other compensation, use Forms WC1 or WC3.” Even if an employer is required to notify the board of its refusal to pay medical expenses, it is not a statutory requirement as the statutory scheme regarding time constraints for a “notice to controvert” — the 21-day period after knowledge of the injury of OCGA § 34-9-221 (d) and the “within 60 days of the due date of the first payment of compensation” of OCGA § 34-9-221 (h) — relates solely to income benefits. As we have endeavored to illustrate, an employer cannot be expected to refuse to pay an unapproved medical expense until a request for payment is made. This event may occur a considerable time later than 21 days after knowledge of the injury or 60 days of the first payment due date; it varies from case to case. Only from the time it learns that payment is sought would the employer have any obligation to respond.

Based on claimant’s actions here, the employer had no reason to assume that claimant was seeking workers’ compensation medical benefits. Its failure to file a notice to controvert earlier does not preclude it from denying responsibility for medical services from a physician not on the posted panel. The Board erred in awarding medical expenses.

3. The composite finding of the ALJ and the Board was that claimant was unable to perform any job requiring him to bend or squat and that his inability to secure suitable employment after March 24, 1985, was caused by his compensable injury.

The claimant was not discharged for any reason relating to his injury. In fact, claimant stated that he was terminated because one of his foremen said he was drunk. He denied being intoxicated.

“It is well settled that where an employee returns to work following a disabling injury and is then discharged for a cause unrelated to the injury, he is entitled to receive benefits for loss of earning capacity if he is unable to find other employment because of his disability.” Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326, 327 (316 SE2d 535) (1984). Where an employee seeks resumption of his disability income benefits following his job termination “the only relevant ‘change of condition’ is a change in the employee’s ‘wage-earning capacity,’ not in his physical condition . . . The requisite economic change in condition exists when the employee is able to demonstrate that, as a proximate result of his previous work-related injury, he is unable to secure suitable employment elsewhere.” Ga. Power Co. v. Brown, 169 Ga. App. 45, 48-49 (311 SE2d 236) (1983). Accord J & M Transp. Co. v. Crowe, 173 Ga. App. 13, 14 (1) (325 SE2d 412) (1984). The claimant has the burden of establishing this. Hartford Accident &c. Co. v. Bristol, 242 Ga. 287, 288 (248 SE2d 661) (1978).

The Board made a conclusionary finding that claimant’s inability to find suitable employment was caused by his injury. No facts sustain that conclusion and it must be reversed. There is no showing that claimant was in any way unable to find suitable work, that work was unavailable, or that he made any effort to discover the status of the job market.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Deen, P. J., concur. Sognier, and Pope, JJ., concur in the judgment only. Carley, J., concurs in Divisions 1 and 2.and dissents as to Division 3. McMurray, P. J., Banke, P. J., and Benham, J., dissent.

Benham, Judge,

dissenting.

1. I am unable to agree with the majority ruling that ITT is not responsible for the medical expenses sought by the appellee because he made no effort to select from a panel of physicians provided by the employer in accordance with OCGA § 39-9-201. There was no evidence of record to show that such a list was posted in a prominent place or that ITT complied with the other requirements of OCGA § 34-9-201 (b). Compare Dairymen, Inc. v. Wood, 162 Ga. App. 430 (4) (291 SE2d 763) (1982). “[I]f the employer does not adequately meet the duty of providing treatment the employee may make other arrangements and once treatment by a physician is undertaken an employer may not change positions and cut off the right to continue such treatment. [Cit.]” Boaz v. K-Mart Corp., 254 Ga. 707, 710 (334 SE2d 167) (1985).

Moreover, if an emergency or “other similarly justifiable reason” exists, under OCGA § 34-9-201 (c) the selection requirements are not applicable. The evidence was undisputed that appellee was advised to “see a doctor” by his supervisor when his worsening condition became apparent, that he did so and was treated. After the ALJ awarded medical benefits for such treatment, appellants complained for the first time on their appeals to the board and the superior court that the ALJ had not considered “the entire issue of whether [appellee’s doctor’s] medical treatment was authorized.” However, at no time did appellants submit any evidence to show how or why appellee’s choice of a doctor or his treatment was not authorized, either before or after the finding of the ALJ that appellee was entitled to an award of his medical expenses, arguing on appeal only that it was not. Appellants’ notice to controvert was based solely upon the alleged noncompensability of his injury.

While the majority states that appellee “made no effort to select from the panel of physicians,” it could also be said in the absence of any evidence to the contrary that ITT made no effort to adequately meet its duty of providing treatment. In my view, the burden should be placed upon the employer to show that it complied with the requirements of OCGA § 34-9-201 before it can assert the employee’s noncompliance as a defense to the claim. See generally Firestone Tire &c. Co. v. Crawford, 177 Ga. App. 242 (3) (339 SE2d 292) (1985); Cornell-Young v. Minter, 168 Ga. App. 325 (309 SE2d 159) (1983). Such a construction is necessary to effectuate the humane purposes for which the Workers’ Compensation Act was enacted. Cf. Schwartz v. Greenbaum, 236 Ga. 476 (1) (224 SE2d 38) (1976); Wilson v. Manville Bldg. Materials Prods., 179 Ga. App. 408, 410 (346 SE2d 851) (1986). Thus I must dissent from the holding in Division 2 of the majority opinion.

2. The ALJ found that appellee was employed on February 11, 1984, and that, shortly thereafter, appellee noticed that his feet were swelling and getting worse; that the supervisor noticed appellee was limping and the limping was happening more frequently; that appellee told the supervisor that prolonged standing on concrete caused his feet to swell and he had to have surgery on June 9, 1984; that appellee returned to work on September 8, 1984, was given the job of dough mixing and performed normal duty work; that appellee was discharged on March 24, 1985, and presently has foot problems and is unable to perform any job that requires bending or squatting. After reviewing the reports of appellee’s treating physician and the doctor employed by appellants for an independent medical evaluation, the ALJ concluded that appellee had sustained a compensable injury on June 9, 1984, at which time he became totally disabled. He further found that appellee underwent a change for the better when he returned to work after the foot surgery, but then incurred a change in condition from ability to work to total disability as of March 24, 1985, at which time he was discharged, and still suffered from the residual effects of his surgery. The full board reviewed the claim, adopted the ALJ’s findings of fact and conclusions of law, and made his award the award of the board. The superior court found evidence to support the findings and conclusions, and affirmed the award of the board.

Review of the record before this court on appeal convinces me that there was sufficient evidence to support the award of income benefits. “The issue on appeal to the superior court is whether there is any evidence to authorize a finding in accordance with the contentions of the prevailing party before the Full Board. The rule is that the decision of the trier of fact will not be set aside on appeal if there is any evidence to support the finding. The Full Board’s findings of fact are not to be set aside because the reviewing court disagrees with the conclusions drawn therefrom. When using the any evidence criteria, the facts are to be construed in a light most favorable to the party prevailing before the board. Reviewing courts do not consider the weight of evidence. [Cit.] With the foregoing standards of appellate review in mind, we turn to the facts of this case. The issue is simply whether or not there is any evidence to support the finding of the ALJ and the board that the claimant is incapable of doing whatever bending or stooping is required by the lighter duty job .... Holloway v. Lo-Temp, 180 Ga. App. 513, 514 (349 SE2d 534) (1986). Although [appellants] presented medical evidence to the contrary, we find sufficient record evidence to support the Full Board’s award in claimant's favor. [Cits.] Questions as to credibility and preponderance address themselves to the trier of facts. On appeal, the appellate tribunal does not determine the credibility of witnesses or the preponderance of the evidence. The appellate tribunal utilizes the any evidence test, a test not available to the trier of facts in deciding disputed factual issues. This court and the superior court are bound by the findings of the Board supported by any evidence. [Cit.]” Id. at 515. Accord Fulton-DeKalb Hosp. Auth. v. Hadley, 174 Ga. App. 503 (1) (330 SE2d 432) (1985); Walton County Bd. of Commissioners v. Williams, 171 Ga. App. 779 (320 SE2d 846) (1984). I therefore also disagree with the ruling of the majority in Division 3, that there was no evidence to support the finding of the board that appellee’s inability to find suitable employment was caused by his injury. Accordingly, I also respectfully dissent from Division 3.

Decided March 20, 1987

Rehearing denied April 3, 1987

Daniel C. Kniffen, for appellants.

John M. Strain, for appellee.

I am authorized to state that Presiding Judge Banke and Presiding Judge McMurray join in this dissent. Judge Carley joins in this dissent as to Division 3 of the majority opinion.


author: Carley, Judge. Beasley, Judge,

text:
    73509.
    BURNETT v. THE STATE.
    (356 SE2d 231)
   Carley, Judge.

Appellant was indicted in 1980 for three counts of violating the Georgia Controlled Substances Act. He was initially afforded representation by appointed counsel. However, appellant’s appointed counsel subsequently withdrew from the representation. At a pre-trial hearing during the October 1982 Term of the superior court, appellant appeared without legal representation and informed the court that he did not have counsel. In response to the trial court’s repeated inquiries, however, appellant stated that he was financially able to employ an attorney and that he had no desire for the appointment of counsel. He further stated that, upon the call of his scheduled trial the following January, he would be represented by retained counsel. Appellant was specifically advised that, if he could not secure counsel for his trial, “for any reason, [he was to] contact either [the assistant district attorney] or [the trial court] immediately ... so the appointment [could] be made. But if [he] waited until three or four days before trial, . . . that [would] not . . . warrant a[nother] continuance.” Appellant stated that he understood.

At the call of his trial in January of 1983, however, appellant was not represented by counsel. It was determined that appellant had not even been in contact with an attorney until a day or so prior to trial. That attorney had declined to represent appellant. Based upon appellant’s status as a non-indigent, the trial court refused to appoint counsel. Appellant was also refused additional time within which to retain counsel. Consequently, appellant was required to represent himself at his trial. The jury returned verdicts of guilty on all three counts. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts and from the denial of his motion for new trial.

1. The trial court’s ruling that appellant would be required to go to trial without counsel is the subject of several related enumerations of error. Appellant urges that he had the right to be represented by counsel, which right was never waived by him.

Defendants in criminal cases have both a federal and a state constitutional right to be represented by counsel or, in the alternative, to represent themselves. However, it is only indigent defendants for whom the trial court must appoint counsel. For a non-indigent defendant, such as appellant, the constitutional right to counsel only “ ‘entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.’ ” (Emphasis in original.) Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983).

The constitutional right to counsel may be waived. Since no defendant has the right to simultaneous representation by counsel and self-representation, his election of the latter right is necessarily a waiver of the former. When waiver of the right to counsel rests upon the defendant’s election of his alternative right of self-representation, “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” (Emphasis supplied.) Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981). A defendant’s voluntary election of the alternative right of self-representation is not, however, the only circumstances in which the waiver of the right to counsel may arise. Notwithstanding a defendant’s present verbal insistence upon his right not to be tried without counsel, his own past actions may nevertheless demonstrate that the right has been waived. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. See generally Bostick v. Ricketts, 236 Ga. 304, 306 (2) (223 SE2d 686) (1976); Ward v. State, 248 Ga. 60, 65 (281 SE2d 503) (1981); Fernandez v. State, 171 Ga. App. 290, 294 (319 SE2d 503) (1984); United States v. Casey, 480 F2d 151 (5th Cir. 1973). Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, “the trial judge [has] a duty to delay the proceedings long enough to ascertain whether [the defendant has] acted with reasonable diligence in obtaining [an attorney’s] services and whether [the] absence [of an attorney is] attributable to reasons beyond [the defendant’s] control.” Shaw v. State, supra at 112.

Turning to the case sub judice, the trial court determined some months prior to trial that appellant was not indigent and that he had no desire that counsel be appointed to represent him. Compare Stapp v. State, 249 Ga. 289 (1) (290 SE2d 439) (1982). The trial court apprised appellant of his right to appointed counsel should he be unable to secure representation, informed him of his responsibility to request appointed counsel within a sufficient time prior to the scheduled trial date, and specifically warned him that a failure either to secure representation or to request appointment of counsel would not be grounds for another continuance of his trial. Notwithstanding appellant’s statement that he understood his rights and responsibilities regarding his representation, he appeared at his trial without having requested appointment of counsel and without any retained counsel being present. The trial court delayed the proceedings long enough to ascertain whether appellant had acted with reasonable diligence in securing representation and whether the absence of counsel was attributable to reasons beyond appellant’s control. Compare Shaw v. State, supra. The trial court was clearly authorized to find that the lack of representation was entirely attributable to appellant’s lack of diligence in retaining counsel. See generally Walker v. State, 157 Ga. App. 484 (1) (277 SE2d 740) (1981).

Appellant contends, however, that there could be no viable waiver of his right to counsel because, on the day of trial, he did not receive a warning from the trial court regarding the danger of proceeding pro se. As noted above, a showing that such a warning was made is a requirement in those cases wherein the purported waiver of the right to counsel arises from the defendant’s own voluntary invocation of his countervailing right to self-representation. Clarke v. Zant, supra. The giving of a warning of the danger of proceeding pro se would obviously be relevant to the waiver issue under those circumstances, since the issue will ultimately turn upon whether the defendant’s relinquishment of one constitutional right by the election of another is the product of an informed and valid choice on his part. Whether or not the warning has been given would have no such relevance in circumstances where a non-indigent defendant has invoked his right not to proceed to trial without counsel. In such cases, the ultimate determination of waiver does not turn upon the existence of a present informed choice by the defendant to proceed pro se. Waiver under those circumstances is solely a function of the non-indigent defendant’s own prior exercise of diligence in securing representation. Appellant certainly needed no warning of the danger of proceeding pro se. By his very invocation of the right to counsel at trial, appellant clearly understood and wished to avoid the danger of self-representation. However, in determining whether that choice was still available to appellant, the focus was on whether his failure to heed the trial court’s past warning was itself an accomplished waiver of his right to counsel. “If [he] was not indigent, [his] failure to retain counsel constituted waiver.” Ward v. State, supra at 65.

The consequences would be totally unacceptable if the requirement of Clarke v. Zant, supra, was extended and a warning of the danger of proceeding pro se was required in cases wherein a non-indigent defendant appears for trial without representation and invokes his right to counsel. Assuming that the warning would be crucial to the issue of waiver and that a non-indigent defendant would therefore be entitled to make a choice after receiving such a warning, he could postpone his trial indefinitely. By failing to retain counsel and by then invoking the right to counsel after his case had been called for trial and he had received the requisite warning of the danger of proceeding pro se, the non-indigent defendant could manipulate the courts at will by simply “refusing” to waive his right. Assuming, on the other hand, that a non-indigent defendant would be entitled to receive but not to act upon such a warning and that he could still be required to stand trial pro se based upon his lack of diligence, the warning would be superfluous and irrelevant. He would certainly derive no benefit from a mere admonishment that his prior lack of diligence has now placed him in the admittedly dangerous position of defending himself.

There is, however, apparent authority for appellant’s assertion that, under the circumstances, he was entitled to receive a warning of the danger of proceeding pro se. See Brown v. State, 161 Ga. App. 663 (289 SE2d 535) (1982). However, any reliance upon Clarke v. Zant, supra, as authority for the holding in Brown v. State, supra, is misplaced. It is clear from the language in Clarke v. Zant, supra at 197, that its holding applies only in the context of a waiver of the right to counsel by election of the countervailing right of self-representation. See also Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984). Moreover, as discussed above, there are no compelling reasons why the rationale of Clarke v. Zant, supra, should be extended to those cases wherein the issue of the waiver of the right to counsel arises other than by virtue of the election of self-representation. In addition, the holding in Brown is inconsistent with our Supreme Court’s own post-Clarke v. Zant pronouncements that it is upon a non-indigent defendant’s own diligence in retaining counsel that the issue of the waiver of his right to counsel must ultimately be resolved. Ward v. State, supra; Shaw v. State, supra. Accordingly, Brown v. State, supra, is overruled to the extent that it purports to establish a requirement that a non-indigent defendant who has. invoked his right to counsel but who has otherwise waived that right by failing to exercise the requisite diligence must be given a warning of the dangers of self-representation before he can be required to undertake a pro se defense.

It was, therefore, not error in this case to hold that appellant’s right to counsel had been waived and to deny a continuance until counsel could be retained. Nor was it error to fail to appoint counsel to represent appellant. See Scott v. State, 151 Ga. App. 840, 841 (2) (262 SE2d 198) (1979).

2. After a careful review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of the three crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Remaining enumerations of error have not been preserved for appellate review.

Judgment affirmed.

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

Beasley, Judge,

concurring in part and dissenting in part.

I concur in the judgment but cannot agree with all that is contained in the opinion.

I would not overrule Brown v. State, 161 Ga. App. 663 (289 SE2d 535) (1982).

Brown is distinguishable. There was nothing in the opinion to indicate that defendant was warned at any time of the dangers of proceeding without trial or knew of them. Thus there was no assurance that, when he was told he did not qualify for publicly-paid counsel, his decision whether to hire counsel or represent himself should be guided by the dangers of proceeding pro se.

Here it is abundantly clear from the record that defendant knew the danger of representing himself and kept insisting at the outset of the trial that the court still allow him to seek employed counsel even though the court had already given months and months for him to do so. Any error, then, in not advising him at the time he was found not indigent, when his choice became one of hiring an attorney or representing himself, would be harmless. This is because he demonstrated his knowledge of the danger of representing himself, which role was not affirmatively chosen but was cast upon him by his own default, occasioned when he completely ignored the court’s early admonition to settle the question of representation promptly.

Of course, I agree with the majority that the warning need not be given at trial if it has already been given or is understood. It would be merely perfunctory.

As I read Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981), Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984), and the United States Supreme Court authority governing these decisions, there must be assurance that a criminal defendant who chooses to represent himself knows of “the dangers and disadvantages of self-representation,” whether the defendant is indigent or not. The choice must be made by the non-indigent just as it must be made by the indigent. The consequences of opting for self-representation are identical. I would follow Horton v. State, 161 Ga. App. 664 (2) (289 SE2d 788) (1982) and Glaze v. State, 172 Ga. App. 802 (325 SE2d 172) (1984) in this regard.

Decided March 18, 1987

Rehearing denied April 3, 1987

Charles A. Mathis, Jr., D. James Jordan, for appellant.

Dennis C. Sanders, District Attorney, Howard W. Wallace III, Margaret E. McCann, Assistant District Attorneys, for appellee.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this opinion.

On Motion for Rehearing.

Appellant urges that the transcript of the pre-trial hearing that was conducted during the October 1982 Term of the superior court should not be considered as part of the record on appeal because of the absence of the court reporter’s certificate as to correctness of the transcript of that hearing.

The absence of the court reporter’s certificate does not preclude consideration of the transcript on appeal. “The defect was amendable. Appellant makes no assertion of any error or incorrectness in the transcript. Either party might have objected to the filing of the uncertified transcript and, if necessary, could have moved for a hearing to get a certified transcript filed or have errors corrected if they appeared. [Cits.] But, by having failed to do so, he waived the objection.” Harper v. Green, 113 Ga. App. 557, 559 (2) (149 SE2d 163) (1966).

Motion for rehearing denied.


author: Beasley, Judge. Been, Presiding Judge, Sognier, Judge,

text:
    73552.
    STATE OF GEORGIA v. VURGESS.
    (356 SE2d 273)
   Beasley, Judge.

On January 15, 1986, pursuant to a search warrant, a detective of the Chatham County Police Department searched an apartment and seized stolen goods, drugs and $7,442 in cash. On February 20, the state petitioned to condemn the money pursuant to OCGA § 16-13-49. The money was claimed to belong to appellee Frank Vurgess. After a bench trial, the court entered judgment on July 31 for appellee and dismissed the petition.

Four days later appellee’s attorney obtained the money from the custodian, based on the order. The state filed its notice of appeal on August 28. Appellee has moved this court to dismiss the appeal as moot.

1. The first question is whether the appeal from dismissal of the state’s action for condemnation of money seized in a drug search must be dismissed because the state failed “to obtain a supersedeas” prior to the custodian’s paying out the money to defendant.

The condemnation proceeding provided for in OCGA § 16-13-49 is civil in nature. It resolves the disposition of property seized in connection with the enforcement of the criminal laws concerning controlled substances and marijuana. The statute is silent as to the mechanics of appeal when either the state or the defendant in the underlying criminal case or any other party to the proceeding is dissatisfied with the ruling of the trial court.

The law provides a right of appeal generally. OCGA § 5-6-33. It is taken by filing a notice of appeal within 30 days after entry of the appealable decision or judgment. OCGA § 5-6-38. The Appellate Practice Act, which the court applies in this case, provides that the notice of appeal shall serve as supersedeas on payment of costs, and a supersedeas bond is not necessary unless the appellee moves for one; then the trial court must set the amount. OCGA § 5-6-46 (a).

By enforcing the trial court’s order of dismissal at once rather than waiting for the 30-day appeal period to expire, appellee has sought to deprive the state of its right of appeal. There is no requirement in the condemnation statute nor in the Appellate Practice Act for the losing party to file the notice of appeal immediately upon the entry of the judgment or suffer the possibility of mootness. Nor is there a requirement that a stay be obtained or a bond be posted while the losing party decides whether to appeal. Even where a supersedeas bond is required but not posted, the severe sanction of dismissal is not in order. Hawn v. Chastain, 246 Ga. 723 (273 SE2d 135) (1980).

As there said: “The cases uniformly hold that the failure to post a supersedeas bond neither mandates nor permits dismissal of an appeal but simply allows the prevailing party (the appellee) to enforce the judgment pending appeal. As noted in Defee v. Williams, 114 Ga. App. 571, 572 (151 SE2d 923) (1966): ‘The proviso . . . requiring a supersedeas bond on motion of an appellee to the trial court is intended to prevent the notice of appeal from serving as a supersedeas, and does not operate as a condition precedent to deprive an appellant of his right to have his appeal transmitted to the appellate court for review. In the absence of such bond as may be required by the appropriate court the appellee is free to enforce the judgment at his peril pending decision on appeal.’ ” Id. at 725.

If dismissal for failure to post a supersedeas bond which has been ordered is not warranted and the right of review remains unaffected, then certainly this ultimate sanction is not justified when a losing party in a drug-related forfeiture proceeding fails to take affirmative action to prevent enforcement of the complained-of judgment prior to the expiration of the 30-day period for filing a notice of appeal. The result of the prevailing party’s enforcement before the time expires is the assumption of the risk that the property may have to be returned, after the appeal is heard on its merits.

Cases which were regarded as mooted on appeal involved injunctive action regarding events which then transpired before the appeals were heard. In those instances there is a statutory requirement for the complaining party to take affirmative action to prevent mootness. OCGA § 9-11-62.

It appears also that, if we consider the evidence submitted with the motion to dismiss, appellee violated OCGA § 9-11-62 (a). It provides that no proceedings shall be taken for the enforcement of a judgment until after 10 days from its entry. Appellee obtained the money from the custodian four days after judgment was entered.

Finally, what type of a “supersedeas” the movant claims is missing is hard to discern, since even if the state were required to secure a stay, it would not be required to post a bond, obligation, or other security. OCGA § 9-11-62 (d).

The motion to dismiss is denied.

2. The first enumeration is that the court erred in failing to dismiss the answer of appellee as untimely. It was filed 48 days after the filing of the condemnation action, whereas the statute requires it to be filed in 30 days. OCGA § 16-13-49 (e). The answer was too late and the funds should have been condemned. Farley v. State of Ga., 180 Ga. App. 694 (1) (350 SE2d 263) (1986).

3. The remaining enumerations thus become moot.

Judgment reversed.

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

Been, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, I believe that it is not inappropriate to add these additional comments.

I cannot agree with the observation made in one of the dissenting opinions to the effect that the “funds are no longer in existence.” We have no way of knowing at this point in time whether the particular and identical funds still exist. It may be that Vurgess still has in his possession the actual money seized, squirreled away in a safe, sock drawer, or under a mattress, or it may be that the state actually still has the money, if the officer below disbursed the $7,442 in other funds (or perhaps by check). The present problem of placing one’s finger upon the exact money found in the apartment, locating the exact dollars and cents might be “ ‘much like trying to nail a jellyfish to the wall.’ ” Sewell v. Eubanks, 181 Ga. App. 545 (352 SE2d 802) (1987). Nevertheless, that possible problem should not prematurely deprive the state of its right to appeal. The state’s attempted appeal at this stage is neither a day late nor a dollar short.

Sognier, Judge,

dissenting.

Appellee successfully resisted the State’s libel to condemn his funds under the provisions of OCGA § 16-13-49. The trial court’s order, valid on its face, dismissed the State’s action. While it is true, as the majority points out, that there is no requirement in the condemnation statute nor in the Appellate Procedure Act for the losing party to file the notice of appeal immediately upon the entry of judgment, neither is there a requirement in either statute that the prevailing party wait 30 days after entry of judgment to enforce it. OCGA § 9-11-62 (a). I agree that there was a violation of OCGA § 9-11-62 (a) in this case, in that the judgment dismissing the state’s libel was executed prior to the expiration of the 10-day period prescribed by that statute. However, I believe any violation of OCGA § 9-11-62 (a) is irrelevant to the decision in this case, as the notice of appeal was not filed until 28 days after entry of the order complained of. Thus, even had OCGA § 9-11-62 (a) not been violated, the State would be faced with the same problem it now faces.

It is apparent to me that the question here is not whether the appeal must be dismissed because of the State’s failure to obtain a supersedeas, but rather whether the appeal is now moot. I conclude that it is. It is not failure to obtain a stay which results in depriving the State of its right to appeal, but the nature of the action itself. It is for this reason that DeFee v. Williams, 114 Ga. App. 571 (151 SE2d 923) (1966) is also inapposite. The funds as they existed when seized and when in the possession of appellant are no longer identifiable. While it is true that cash is, in a sense, fungible and that other funds supplied by appellee would certainly satisfy the State should it appeal and win, that result would be permissible only if the State here sought an in personam judgment against Vurgess. It is clear that is not the case. Condemnation is an in rem proceeding. Lang v. State, 168 Ga. App. 693, 694 (2) (310 SE2d 276) (1983). The action was brought by the State against the seized funds, and judgment was sought for those funds. As those funds are no longer in existence, any appeal of the judgment against the funds is indeed moot. I fail to see what we can obtain by making an idle declaration in this matter. For these reasons and those stated by Judge Benham, I dissent.

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

Benham, Judge, dissenting.

The issue here is not, as the majority asserts, whether an appeal must be dismissed because the State failed to obtain a supersedeas prior to the custodian’s paying out the money to appellee. The issue is whether voluntary compliance with a judgment renders an appeal from that judgment moot. There is nothing in the record or in the materials relating to the motion to dismiss which suggests that appellee did anything to enforce the trial court’s order. All we know is that the State complied with the trial court’s judgment without waiting for an appeal. That action renders an appeal from the judgment moot. St. Clair v. Robert A. McNeil Corp., 151 Ga. App. 876 (261 SE2d 782) (1979); Willis v. Century Fin. Co., 149 Ga. App. 859 (256 SE2d 152) (1979).

Decided March 20, 1987

Rehearing dismissed April 3, 1987.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellant.

John B. Achord, Bruce A. Howe, for appellee.

Since the majority denies appellee’s motion to dismiss the appeal and reaches the merits of the State’s appeal, I must dissent.

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