author: Johnson, Judge.

text:
    A92A1409.
    MORTON v. THE STATE.
    (425 SE2d 336)
   Johnson, Judge.

Albert W. Morton was convicted of violating the Fulton County Zoning Ordinance by improperly using his property, which was zoned for residential use, as storage for automobiles. The trial court sentenced Morton to serve three concurrent six-month terms of imprisonment and ordered him to pay a $500 fine. Morton appeals.

At the outset, we note that the Supreme Court, rather than this court, has the exclusive jurisdiction to decide cases in which the constitutionality of a law or ordinance has been properly raised. See Art. VI, Sec. VI, Par. II of the Constitution of 1983. See also Kariuki v. DeKalb County, 253 Ga. 713 (324 SE2d 450) (1985). However, we are not divested of jurisdiction over an appeal where attempts to raise such constitutional challenges were not properly raised and ruled upon below.

1. In his first three enumerations of error, Morton contends that the trial court erred when it failed to recognize his constitutionally protected property rights; that the ex post facto provision of the Georgia Constitution was violated by the State; and that the trial court violated his constitutional due process rights. These enumerations are considered together.

“In order to raise a question as to the constitutionality of a law, at least three things must be shown: (1) The statute or the particular part or parts of the statute which the party would challenge must be stated or pointed out with fair precision; (2) the provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or some designated part of it, violates such constitutional provision.” (Citations and punctuation omitted.) Wallin v. State, 248 Ga. 29, 30 (279 SE2d 687) (1981). After a review of the record, we find that Morton’s attempted constitutional challenge does not comply with the foregoing guidelines and must fail.

A law is ex post facto when it is enacted after the offense was committed, and which, in relation to it or its consequences “alters the situation of the accused to his disadvantage.” (Citations and punctuation omitted.) Bailey v. State, 210 Ga. 52, 54 (77 SE2d 511) (1953). The subject ordinances were revised prior to the commission of the offense. Fulton County Zoning Resolution, Art. IV, Section 4.2.5 (a) and (b) was amended in July 1989, and Art. XVIII, Section 18.3.1 was amended October 1989. Morton was charged with violating zoning ordinances in May 1990, more than eight months after the amendment of the statutes at issue. Consequently, the laws were not retroactively applied to him. We find no error.

Morton contends that the trial court denied his right to due process by allowing the prosecution to conduct an arraignment as to an amended Count 2 of the accusation without adequate notice. A few weeks prior to his trial, the state filed an accusation which amended Count 2 of the original accusation by adding the word “not” and correcting the spelling of the word “storage.” Morton had originally been arraigned several weeks earlier, but the trial court allowed the State to re-arraign Morton on the amended accusation. Morton requested a continuance so that he could file a demurrer contending that the amendments in Count 2 of the accusation materially affected his defense. The trial court overruled the motion for a continuance, holding that the two changes in the accusation were typographical in nature and would not substantively change either the charge or Morton’s defense, and that the demurrer he had previously filed covered the matter.

Morton did not object to his arraignment on the amended Count 2, nor did he object or except to the denial of his motion for continuance. Instead, he went forward with the argument on his demurrer, which the trial court subsequently overruled.

Objections not properly raised at trial cannot be considered on appeal. Barnwell v. State, 197 Ga. App. 116, 118 (4) (397 SE2d 717) (1990). Accordingly, there is nothing before us to review as to this enumeration.

In his brief, Morton attempts to further support his contention that his due process rights were violated by arguing that evidence presented at trial was insufficient to uphold his conviction. “It is basic appellate practice that error argued in the brief, but not enumerated as error will not be considered on appeal. And, enumerations of error cannot be enlarged by means of statements in the brief ... to include issues not made in the enumeration.” (Citations and punctuation omitted.) Giles v. State, 197 Ga. App. 895, 897 (1) (400 SE2d 368) (1990). Accordingly, his claim is not meritorious.

2. Morton contends generally that he was denied a fair trial.

Our review of the record shows that Morton’s trial was conducted properly, fairly, and in accordance with the laws of this state. Furthermore, Morton’s enumeration is unduly vague, and the scope of his contention is neither narrowed nor clarified in his appellate brief, nor in any other place in the record. “Where the enumerated error is so general, and does not contain a key which the brief clarifies to identify the specific error enumerated, and neither record nor the notice of appeal assists in determining which one specific error is enumerated, we will consider only the general grounds as to sufficiency of the facts to support the judgment.” (Citations and punctuation omitted.) MacDonald v. MacDonald, 156 Ga. App. 565, 569 (275 SE2d 142) (1980); see also Veit v. State, 182 Ga. App. 753, 755 (357 SE2d 113) (1987). There is ample evidence in the record to support Morton’s conviction beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Morton asserts and the state concedes that the trial court imposed an unlawful term of incarceration as part of his sentence. OCGA § 36-1-20 (b) provides, in pertinent part, “in no case shall the maximum punishment for a violation of any such ordinance exceed a fine of $1,000.00 or imprisonment for 60 days or both. . . .” The trial court ordered Morton to pay a $500 fine, which is within the statutory authority. However, in its imposition of concurrent six-month terms of incarceration on each of Morton’s three counts of zoning code violations, the court exceeded the maximum punishment permitted by the statute. It appearing that the trial court imposed an unlawful term of incarceration, that portion of Morton’s sentence requiring him to serve six months in jail is vacated, and the case is remanded for re-sentencing in accordance with OCGA § 36-1-20 (b). See Little-john v. State, 191 Ga. App. 852, 854 (383 SE2d 332) (1989).

Decided November 3, 1992 —

Reconsideration denied November 23, 1992

Albert W. Morton, pro se.

James L. Webb, Solicitor, R. Lee O’Brien, Jr., Helen A. Roan, Michael S. Moody, Assistant Solicitors, for appellee.

Judgment affirmed, sentence of incarceration vacated, and case remanded for re-sehtencing.

Carley, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A1648.
    GRACE v. GOLDEN et al.
    (425 SE2d 363)
   Sognier, Chief Judge.

Betty L. Grace, as trustee of a family trust, brought an action against Randall Golden and Brenda Golden on a note executed by the Goldens. The trial court entered summary judgment in favor of the Goldens, and Grace appeals.

The record reveals that in 1989, appellees entered into a transaction to purchase real estate in Fayette County owned by appellant and her husband. The sellers lived in California and did not attend the closing, which was attended on their behalf by their attorney in fact, Keith Carey. The note in issue was given as a portion of the purchase money, and a deed to secure debt was executed contemporaneously with the note. Mr. Grace subsequently died, and his interest in the note passed to his widow, who then transferred it to the Betty L. Grace Family Trust, of which appellant is trustee. Upon appellees’ default in the payments required under the terms of the note, appellant instituted this action.

As their sole defense, appellees relied on a provision in the exhibit attached to and incorporated into the deed to secure debt in which the parties had “expressly agreed that the Grantor’s liability hereunder shall be limited to the lien, power of sale, or right of foreclosure granted under the provisions of this Deed to Secure Debt, and upon default by Grantor, the Grantee hereto shall look solely to the security of the land conveyed by this Deed to Secure Debt and shall not be entitled to enter suit or obtain a judgment in any court with respect to any unpaid balance of the debt after exercising the power of sale or right of foreclosure granted hereunder, or provided by statute.” It is undisputed that appellant has not exercised the power of sale in the deed to secure debt.

1. In two enumerations, appellant contends the trial court erred by granting summary judgment to appellees and denying her cross-motion for summary judgment because the provision relied upon by appellees is unenforceable, and Georgia law permits a creditor holding a note secured by a security deed to elect to proceed solely under the note without first proceeding against the property. We agree with appellant that under Georgia law, unless otherwise provided by agreement, upon default by a debtor a creditor need not look first to the property securing a note. Brown v. Ga. State Bank, 141 Ga. App. 570, 571 (234 SE2d 151) (1977). However, that principle may be altered by agreement. See OCGA § 11-3-119; see generally Piedmont Arbors &c. v. BPI Constr. Co., 197 Ga. App. 141-142 (397 SE2d 611) (1990); Pendergrast v. Ewing, 158 Ga. App. 5, 6-7 (1) (279 SE2d 233) (1981). We turn, therefore, to the enforceability of the agreed upon provision in this case.

(a) Citing Finlay v. Oxford Constr. Co., 139 Ga. App. 801, 802 (1) (230 SE2d 69) (1976), appellant first asserts that the note creates an unconditional personal obligation on the part of appellees to pay the amount due under it, and consequently the provision in issue is unenforceable because it conflicts with this unconditional obligation. We do not agree. The principle set forth in Finlay refers explicitly to a conflict “in respect to the terms of the debt or interest, or the time for its payment” (citations and punctuation omitted), id., terms that are not in issue here. Moreover, here, as in Finlay, we perceive no conflict between the note and the provision at issue. The obligation created by the note still exists. “The fact that liability in the event of default was limited to the land described in the security deed in no way eliminated the underlying indebtedness evidenced by the note.” Pendergrast, supra at 7. The provision in the security deed merely limited appellant’s options as to enforcement and recovery.

(b) Appellant also maintains the provision in question is unenforceable because it fails to meet the requirement in Georgia law that all exculpatory clauses be explicit, prominent, and unambiguous. Hall v. Skate Escape, Ltd., 171 Ga. App. 178, 180 (319 SE2d 67) (1984). Given that the deed to secure debt, including the attached exhibit, is only two pages long and the typeface used is larger and bolder than that in the preprinted portions of the deed, we do not agree with appellant that placement of the exculpatory provision after the legal description and use of the same typeface as that employed for the legal description was an attempt by appellees, as drafters of the documents, to “camouflage” the provision and prevent it from being detected at closing. Indeed, the existence of the signature of appellant’s attorney in fact immediately under and adjacent to the provision, when such signature was legally unnecessary on the document, belies such an inference. We note that as appellant has alleged neither fraud on the part of appellees nor an inability to read on the part of Carey, her attorney in fact, under the circumstances present here Carey was not only free to examine the deed before signing it, he was under a duty to do so. Marett Properties v. Prudential Ins. Co., 167 Ga. App. 631, 633 (307 SE2d 69) (1983).

Decided November 9, 1992 —

Reconsideration denied November 23, 1992

Alderman, Green & Hamby, Brady D. Green, for appellant.

Rosenzweig, Kam, Jones & MacNabb, Joseph P. MacNabb, for appellees.

2. We do not agree with appellant’s contention that the provision in question is ambiguous. Appellant argues that since the exculpatory provision is contained in the deed to secure debt and refers to appellees’ “liability hereunder,” it applies only to a default in appellees’ obligations under that document. However, the security deed refers to the note, and the note is explicitly made a part of the security deed “as if incorporated herein.” We likewise do not agree with appellant that the exculpatory provision applies only should she elect to exercise the power of sale. The plain meaning of the provision clearly and unambiguously requires appellant to “look solely to the security of the land conveyed” by the deed in the event of default by appellees.

Because the facts were undisputed, and an enforceable provision in the security deed operates to exculpate appellees from personal liability, in this suit on the note appellees raised a defense entitling them to judgment. Accordingly, the trial court did not err by denying appellant’s motion for summary judgment and entering summary judgment in favor of appellees. See generally Francis v. Union Bank, 183 Ga. App. 84-85 (1) (357 SE2d 837) (1987).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A2330.
    STEVENS v. THE STATE.
    (425 SE2d 373)
   McMurray, Presiding Judge.

Defendant was indicted for murder. Following a jury trial, he was convicted of voluntary manslaughter and sentenced to serve 20 years in the penitentiary. Defendant moved for a new trial. The motion was denied and defendant appealed.

Viewed in a light favorable to the State, we find the following evidence: On June 24, 1990, defendant was nearly hit by a “Mustang 5.0” as he sat on a car parked on Meldon Street in Atlanta, Georgia. Defendant peered into the Mustang and exchanged words with the driver. An argument ensued and the driver emerged from the Mustang and grabbed defendant. The driver and defendant began to fight. Friends broke up the fight and tried to keep the situation under control, but the arguing continued. Defendant walked over to his car and retrieved a 9 millimeter pistol. Defendant approached the victim and opened fire from a distance of about ten feet. The victim had been standing with his hands on his hips when defendant approached him; he did not have a gun. Defendant rapidly fired between four and six shots and the victim fell to the ground. Defendant walked over to the victim, and standing over him, reeled off another eight shots. When the police arrived, they found the victim lying on the ground with nine bullet holes in his body. Defendant had fled the scene. Held:

1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hollis v. State, 201 Ga. App. 224, 227 (7) (411 SE2d 48). Defendant’s first enumeration of error, alleging the general grounds, is without merit.

2. Defendant contends that the trial court erred in failing to grant his motion for a directed verdict of acquittal. We disagree.

A directed verdict of acquittal in a criminal case is only authorized if “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” (Emphasis supplied.) OCGA § 17-9-1 (a). A verdict of acquittal or not guilty was not demanded in this case.

Even if it can be said that the trial court should have granted a motion for directed verdict on the murder charge, defendant shows no harm in the denial of the motion. Dickerson v. State, 151 Ga. App. 429 (2) (260 SE2d 535). Defendant was convicted of voluntary manslaughter and the evidence was sufficient to support the conviction. See Miller v. State, 201 Ga. App. 108, 109 (410 SE2d 328) (evidence cannot be said to have demanded a verdict of acquittal when conviction upheld on general grounds).

3. The trial court did not err in charging the jury on the law of voluntary manslaughter. “On the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given the jury.” Banks v. State, 227 Ga. 578, 580 (182 SE2d 106). Accord Lord v. State, 173 Ga. App. 419 (1) (326 SE2d 794).

4. After the jury began deliberating, the trial court received a request for the definitions of murder and manslaughter. The trial court intended to recharge the definitions just as soon as it could assemble the attorneys in the courtroom. Approximately 15 minutes later, the jury notified the trial court that it reached a verdict. Accordingly, the trial court did not recharge the jury on the definitions of murder and manslaughter.

In his fourth enumeration of error, defendant contends the trial court erred in failing to recharge the jury on the definitions of murder and manslaughter pursuant to the jury’s request. We disagree. “[W]here, after requesting a recharge, the jury returns a verdict before the trial judge has time to recharge, the trial judge’s failure to recharge before the verdict is reached does not require reversal.” Harrell v. State, 249 Ga. 48, 49 (1) (288 SE2d 192), overruled on other grounds, by Edge v. State, 261 Ga. 865, 867 (414 SE2d 463). See also Johnson v. State, 254 Ga. 591, 602 (18) (331 SE2d 578).

5. The day after the victim was killed, defendant, accompanied by an attorney, Bobby Wilson, surrendered to the police. He was advised of his Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) rights and voluntarily gave a statement concerning the crime. Defendant’s statement was admitted into evidence over defendant’s objection that Wilson rendered ineffective assistance of counsel during his representation of defendant.

In his final enumeration of error, defendant asserts the trial court erred in admitting his statement into evidence. In this regard, he claims that before representing defendant, Wilson represented one of the State’s primary witnesses, Donnie Holland, in several criminal matters; that Wilson’s previous representation of Holland was in conflict with his representation of defendant; and that, therefore, Wilson’s representation of defendant was ineffective. We disagree. Defendant failed to show any actual conflict of interest, how any such conflict actually impaired Wilson’s representation, or how any such conflict rendered defendant’s statement involuntary. See Dill v. State, 193 Ga. App. 213 (387 SE2d 424); Daniels v. State, 192 Ga. App. 446, 448 (9) (385 SE2d 107).

The record shows that defendant’s statement was voluntary. The trial court did not err in admitting it into evidence.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Decided November 12, 1992 —

Reconsideration denied November 23, 1992.

H. Clay Collins, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Vivian D. Hoard, Assistant District Attorneys, for appellee.


text:
    A92A0997.
    THE STATE v. PHILLIPS.
    (425 SE2d 412)
   Sognier, Chief Judge.

Franklin Phillips was charged by accusation with driving under the influence of alcohol and failure to maintain lane. Phillips demurred to the accusation, objecting to language identifying the DUI offense as a “High and Aggravated Misdemeanor.” The trial court granted the demurrer and ordered the State to amend the accusation as to any copy to be submitted to the jury by omitting the “high and aggravated” language. The State appeals, contending that the grant of the demurrer resulted in the striking of a material allegation in the accusation. OCGA § 5-7-1 (1); State v. Mendoza, 190 Ga. App. 831 (1) (380 SE2d 357) (1989).

The issue presented in this appeal is whether a “high and aggravated” misdemeanor DUI is a separate and independent offense from a misdemeanor DUI so that the phrase “high and aggravated” is a material allegation that must be included in the accusation, see Darty v. State, 188 Ga. App. 447 (373 SE2d 389) (1988), or whether the “high and aggravated” language merely serves as direction for the imposition of punishment under specified aggravated circumstances so that it need not be set forth in the accusation. See State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984). The State argues the first position, citing Darty as authority that the “high and aggravated” language in OCGA § 40-6-391 (c) “changes the very nature of the offense.” Darty, supra at 448.

OCGA § 40-6-391 (a) sets forth the five ways the Code section is violated. Subsection (c) provides that “[ejvery person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor.” A review of the maximum periods of imprisonment authorized as punishment for violating OCGA § 40-6-391, as set forth in subsection (c) (1) (B) (upon the first conviction), subsection (c) (2) (B) (upon the second conviction), and subsection (c) (3) (B) (upon the third or subsequent conviction), reveals an identical maximum period of 12 months. Only the minimum fine amounts and minimum periods of imprisonment increase.

We agree with appellee that the statutory provision authorizing punishment for a high and aggravated misdemeanor upon a third or subsequent conviction of DUI does not create a separate and independent offense but instead “falls within the category of other legislative directions as to punishment, such as mandatory minimum terms of imprisonment,” Hendrixson, supra at 854, and accordingly does not constitute a material allegation that must be set forth in the accusation. “OCGA § 40-6-391 (c) is not an enhanced penalty statute, because it neither increases the maximum confinement authorized nor converts a misdemeanor offense into a felony.” Moore v. State, 181 Ga. App. 548, 549 (1) (352 SE2d 821) (1987). We find Darty, supra, on which the State relies, to be clearly distinguishable because the misdemeanor in that case, a simple shoplifting offense, was converted into a felony by the accused’s prior convictions. See OCGA § 16-8-14 (b) (1) (C).

Contrary to the State’s assertion, the mere fact that punishment for misdemeanors of a high and aggravated nature, OCGA § 17-10-4, is codified separately from punishment for misdemeanors, OCGA § 17-10-3, does not make the principle in Darty, supra, applicable. As the definitional statute for the criminal Code of Georgia reflects, Georgia law distinguishes only between felonies, i.e., those crimes punishable by death, life imprisonment, or by “imprisonment for more than 12 months,” OCGA § 16-1-3 (5), and “any crime other than a felony,” (emphasis supplied), id. at (9), a definition that encompasses both misdemeanors and misdemeanors “of a high and aggravated nature.” Id. Hence, we do not agree with the State that in the context of OCGA § 40-6-391, the imposition of the punishments set forth in subsection (c) (3) (B) changes the nature of a DUI charge.

OCGA § 5-7-1 (1) authorizes direct appeal by the State “[f]rom an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof.” Although we have interpreted this statute to authorize an appeal by the State from the sustaining of a special demurrer, the result of which is to strike a material allegation of an indictment or accusation, see Mendoza, supra, research has failed to disclose any authority permitting the State to appeal from an order of a court striking an immaterial allegation of an indictment or accusation which does not result in the setting aside or dismissal of the indictment or accusation or any count thereof. It is well established that OCGA § 5-7-1 must be construed strictly against the State. State v. Clark, 191 Ga. App. 708, 709 (382 SE2d 670) (1989); State v. McIntyre, 191 Ga. App. 565, 566 (382 SE2d 669) (1989). Because of our holding that the “high and aggravated” language in the accusation did not constitute a material allegation of the accusation, we conclude that the State’s appeal from the trial court’s striking of this immaterial language does not fall within any of the circumstances in which the State is authorized to appeal, and accordingly the appeal is dismissed. See McIntyre, supra.

Decided November 23, 1992.

Patrick H. Head, Solicitor, Victoria S. Aronow, Assistant Solicitor, for appellant.

James C. Strayhorn, for appellee.

. Appeal dismissed.

McMurray, P. J., and Cooper, J., concur.

       Although Moore predated the 1990 amendment to OCGA § 40-6-391 (c), Ga. L. 1990, pp. 2048, 2312-2317, § 5, under which appellee is charged, a comparison of the punishments set forth in the two versions of the statute reveals that other than the 1990 amendment capping the monetary fine payable upon third or subsequent conviction at “not more than $5,000.00,” id. at 2314 (OCGA § 40-6-391 (c) (3) (A)), the two versions are identical and the conclusion reached by the Moore court applies to the current version of that statute in issue in the case sub judice.

       We note that OCGA § 40-6-391 (f), which provides that OCGA § 17-10-3 (general punishment for misdemeanors) is not applicable to any person convicted of violating OCGA § 40-6-391 (a), was not changed when the legislature in 1990 amended subsection (c) to add the “high and aggravated” language. Ga. L. 1990, p. 2312.


text:
    A92A1109.
    ROBERTS v. ROBERTS.
    (425 SE2d 414)
   Sognier, Chief Judge.

Ethel Roberts brought suit against James Roberts and obtained a judgment establishing easements across his property and enjoining him from interfering with the easements. Four months later, Ms. Roberts filed a motion for contempt alleging that Mr. Roberts had erected a fence on his property preventing her from enjoying her easements, in violation of the trial court’s judgment, and seeking removal of the fence. The trial court denied her motion, and she filed this direct appeal.

1. Initially, we note that this court has jurisdiction over this appeal, see Cook v. Thomas, 175 Ga. App. 836 (334 SE2d 727) (1985), and that nothing in the trial court’s order reflects it is other than a final judgment. See Levingston v. Crable, 203 Ga. App. 16, 18 (416 SE2d 131) (1992). Compare Moody v. Moody, 238 Ga. 257 (232 SE2d 842) (1977), explained in Berger v. North American Co., 146 Ga. App. 475, 476 (1) (246 SE2d 716) (1978). Accordingly, appellate jurisdiction is conferred pursuant to OCGA § 5-6-34 (a) (2). See Ramsey v. Ramsey, 231 Ga. 334, 335-337 (1) (201 SE2d 429) (1973). Accord Lupo v. Long, 145 Ga. App. 876 (245 SE2d 73) (1978).

2. The record in the case sub judice reveals that in the prior litigation between the parties, judgment was entered on the jury’s finding that appellant has easements across appellee’s property for a septic tank and for pipes to connect improvements on her property with municipal sewer services. In its order on appellant’s motion, the trial court found that appellee was not in contempt of that judgment. However, in the same order the trial court ruled that if appellant “desires to remove the approximately four foot section of the fence at the back corner of [her] building near [part of the sewer line], for the purpose of repairing any problems which [appellant] allegedly is having with her pipes, [she] may do so with the proviso that [she] then replace said fence in the condition it is presently in, all at [appellant’s] own expense.”

The defenses to a civil contempt “are that the order was not sufficiently definite and certain, was not violated, or that the violation was not wilful. . . . [Cit.]” Schiselman v. Trust Co. Bank, 246 Ga. 274, 277 (271 SE2d 183) (1980). No issue is presented here regarding the definiteness or certainty of the judgment. It thus appears that the trial court’s order on appellant’s motion was based either on a determination that the fence erected by appellee does not interfere with appellant’s fair enjoyment of her easements or that appellee’s violation of the judgment was not wilful.

We agree with appellant that to the extent the trial court’s order constituted a ruling that appellee’s fence does not interfere with her easements, that ruling was wrong as a matter of law. In Jakobsen v. Colonial Pipeline Co., 260 Ga. 565, 566 (2) (397 SE2d 435) (1990), a pipeline easement case, the Supreme Court held that “[t]he grant of an easement impliedly includes the authority to do those things which are reasonably necessary for the enjoyment of the things granted, [cit.],” and thus the easements included implied rights to trim trees in order to inspect the pipeline. Even if Jakobsen can be distinguished on the basis that the easement in that case granted a detailed enumeration of rights to the holder, cases such as Georgia Power Co. v. Leonard, 187 Ga. 608, 610-611 (2) (1 SE2d 579) (1939) and Stewart County v. Holloway, 69 Ga. App. 344, 347 (25 SE2d 315) (1943), applying a more restrictive construction of easements, have nonetheless recognized that the grant of an easement includes those rights that are “requisite to its fair enjoyment [and] essential to the reasonable enjoyment of the easement granted. [Cits.]” Leonard, supra. “[W]hen one grants a thing, he is deemed also to grant that within his ownership without which the grant itself will be of no effect.” Jones v. Mauldin, 208 Ga. 14, 16 (1) (a) (64 SE2d 452) (1951). “The easement and servitude possessed by [the grantee] extends to all uses directly or incidentally necessary to the advancement of the purposes for which the [easement] was reserved. Though the owner holds title in fee, his right to use the way must not in any way interfere with the full and free use of the easement by its owner. [Cits.]” Georgia Power Co. v. Sullivan, 217 Ga. 699, 702 (124 SE2d 634) (1962).

The easements granted by the judgment in appellant’s favor contain no limitations on their use; hence, appellant as grantee is entitled to avail herself of all reasonable uses that significantly relate or are essential to the object for which the easements were granted. Jakobsen, Leonard, supra. The right to maintain and repair the sewer pipes and septic tank cannot be severed from the sewerage purposes for which the easements were granted. The trial court obviously recognized in its order that evidence exists to show that appellee’s fence interferes with the full and free use of the easements by appellant, as the order authorized the fence’s removal when repairs to the sewer pipes are required. It is incongruous to acknowledge the fence’s interference with appellant’s use of the easement when repairs need be made but then to conclude that the fence’s presence does not violate the judgment prohibiting appellee from interfering with those easements.

“ Tt is fundamental that every court possesses the inherent power to preserve and enforce order and compel obedience to its judgments and orders, to control the conduct of . . . persons connected with the judicial proceedings before it and to inflict summary punishment for contempt upon any person failing and refusing to obey any lawful order of such court. [OCGA §§ 15-1-3 (3); 15-1-4 (a)]; [cit.] This court will not undertake to control the wide discretion vested in the trial court in the exercise of this fundamental power unless it is made to appear that wrong or oppression has resulted from an abuse of such discretion reposed in the court. [Cits.]’ ” Young v. Champion, 142 Ga. App. 687, 691 (236 SE2d 783) (1977). To the extent the trial court’s order is based on a finding that appellee is not in violation of the judgment because he is not interfering with appellant’s easements, the trial court’s order is wrong and erroneously oppresses appellant’s right to full and free enjoyment of her easements.

However, the record reflects that appellee also asserted the defense that his violation of the judgment was not wilful because when he erected the fence, he did not act with the intention of violating the judgment’s mandate against interfering with appellant’s easements. See Schiselman, supra. Evidence to support this defense is present in the record in the form of appellee’s unrebutted statements in his affidavit regarding his intentions in erecting the fence and the actions he took in an attempt to avoid interfering with appellant’s easements.

Given that the trial court’s denial of appellant’s contempt motion could validly be based upon a lack of wilfulness on appellee’s part, and given that “[a] correct decision of the trial court will not be reversed, regardless of the reasons given therefor, [cit.]” National Con sultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344) (1988), we affirm the trial court’s order with direction that the trial court vacate the language obligating appellant to remove and replace appellee’s fence and substitute in its stead language addressing appellee’s interference with appellant’s easements in a manner consistent with this court’s opinion.

Decided November 23, 1992.

King & Spalding, Stephanie E. Parker, for appellant.

Groover & Childs, Frank H. Childs, Jr., Sara E. Roberts, for appellee.

Judgment affirmed with direction.

McMurray, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A92A1367.
    HARDWICK-MORRISON COMPANY v. MAYLAND et al.
    (425 SE2d 416)
   Cooper, Judge.

Appellant is a corporation in the business of selling industrial pumps. Appellee Lawrence Mayland is a former salesman, shareholder and member of the board of directors of appellant. Mayland resigned from his employment with appellant and set up a corporation to compete with appellant in the industrial pump market. Appellant filed a complaint against Mayland and his corporation (hereinafter “appellees”) alleging tortious interference with business relations, misappropriation of business opportunities and breach of fiduciary duties. Appellees counterclaimed for payment of stock and commissions and tortious interference with business relations, seeking damages as well as litigation expenses and attorney fees. The parties engaged in discovery for several months, and on March 28, 1991, appellant voluntarily dismissed its complaint without prejudice pursuant to OCGA § 9-11-41 (a). Appellees subsequently amended their counterclaim by dismissing all claims except their claim for litigation expenses and attorney fees. The trial court treated appellees’ counterclaim as a motion for attorney fees brought pursuant to OCGA § 9-15-14 and awarded appellees $15,000 in attorney fees. We granted appellant’s discretionary appeal to determine whether the trial court’s award of attorney fees was proper.

Appellant contends that the trial court erred in considering appellees’ counterclaim for litigation expenses and attorney fees after appellees failed to object to the voluntary dismissal of the case. In an action containing a counterclaim, the failure of a defendant to object to a properly written and filed voluntary dismissal of the main action results in the counterclaim’s dismissal. OCGA § 9-11-41 (a); Moore v. McNair, 145 Ga. App. 888 (245 SE2d 25) (1978). Appellant also argues that the trial court erred in considering appellees’ counterclaim as a motion pursuant to OCGA § 9-15-14 (b). OCGA § 9-15-14 (b) provides that “[t]he court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. . . .” (Emphasis supplied.) Notwithstanding whether the trial judge had authority to treat appellees’ counterclaim as a motion under OCGA § 9-15-14 (b), the trial judge had authority under that Code section to award attorney fees sua sponte upon finding a lack of substantial justification or unnecessary expansion of the proceeding by improper conduct. Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441 (3) (385 SE2d 307) (1989), overruled in part on other grounds in Fowler v. Vineyard, 261 Ga. 454 (2) (405 SE2d 678) (1991).

Decided November 23, 1992.

Webb & Daniel, Harold T. Daniel, Jr., Marcia D. Ernst, Linda K. Thompson, for appellant.

Black & Black, Adrienne Black, John K. Dunlap, for appellees.

However, since the trial court’s order does not include findings of conduct which would authorize the award of attorney fees under OCGA § 9-15-14, the trial judge’s order must be vacated. Porter v. Felker, 261 Ga. 421 (3) (405 SE2d 31) (1991); Coker v. Mosley, 259 Ga. 781 (2c) (387 SE2d 135) (1990). The case is remanded with direction that the trial judge vacate the order, prepare appropriate findings of fact and enter a new judgment thereon, after which the losing party may appeal.

Judgment reversed and remanded with direction.

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


text:
    A92A1410.
    THE STATE v. GILLESPIE.
    (425 SE2d 418)
   Sognier, Chief Judge.

Johnny Mac Gillespie filed a plea in bar based on double jeopardy. The State answered, denying the allegation. The trial court granted the plea, and the State appeals. State v. Stowe, 167 Ga. App. 65, 66 (1) (306 SE2d 663) (1983).

We agree with the State that the trial court erred by granting appellee’s plea in bar. The record reveals that the two indictments in issue in the case sub judice were returned against appellee in September 1991. Both indictments charged him with selling cocaine to an undercover officer, but set forth the separate dates for those sales, March 12 and March 25, 1991. Appellee attached to his plea in bar a certified copy of an earlier indictment dated March 5, 1991 charging him with selling cocaine to an undercover officer on April 13, 1990 and his guilty plea and sentence to that charge entered on April 25, 1991. The dates of the sales were not made a material averment in any of the indictments.

Citing the well-established principle that when the date of the alleged offense is not made a material averment the State can prove commission of the offense at any time within the statute of limitation, e.g., Ledesma v. State, 251 Ga. 885-886 (1) (a) (311 SE2d 427) (1984), appellee asserts his plea was properly sustained because the current indictments could have arisen out of the same conduct that was the subject of the first indictment and guilty plea. However, “[i]n order to sustain a plea of former jeopardy, it is always incumbent upon the defendant to plead and prove that the transaction charged in the second indictment or accusation is the same as a matter of fact as that charged in the first indictment or accusation under which he was put in jeopardy.” (Citations and punctuation omitted.) Sandner v. State, 193 Ga. App. 62, 63 (1) (387 SE2d 27) (1989). In this case, appellee offered no evidence whatsoever that the two indictments in issue pertain to the same transaction as that which was the basis for his prosecution on the first indictment and does not contend he was confused or misled in any way. Accordingly, appellee failed to carry his burden of proof. Id. See also Neal v. State, 198 Ga. App. 13 (400 SE2d 375) (1990); Grogan v. State, 179 Ga. App. 300 (346 SE2d 378) (1986) (physical precedent); Gilstrap v. State, 90 Ga. App. 12, 14 (1) (81 SE2d 872) (1954). The cases cited by appellee do not support a contrary result, as they involved offenses which “ ‘by nature [were] continuing and potentially indefinite in duration. Therefore, the date as a material element in the transaction was critical because the culpability had to be pinpointed in time so as to prevent multiple prosecution for various instances of the ongoing criminal activity.’ ” Sandner, supra. Those cases are thus distinguishable from the offenses charged in the case sub judice, which involve distinct and separate transactions as a matter of fact.

OCGA § 16-1-8 (b) does not authorize a different result. As interpreted in McCannon v. State, 252 Ga. 515, 517-518 (315 SE2d 413) (1984), OCGA § 16-1-8 (b) provides in relevant part that prosecution is barred “if the accused was formerly prosecuted for a different crime . . . if such former prosecution: (1) resulted in ... a conviction . . . and: . . . (iii) is for a crime which involves the same conduct, unless (A) each prosecution requires proof of a fact not required on the other prosecution or (B) the crime was not consummated when the former trial began.” Given that “same conduct” under OCGA §§ 16-1-7; 16-1-8 means “same transaction,” McCannon, supra at 518, n. 5, we find no merit in the argument that “the same conduct” encompasses “the same type of conduct,” i.e., different transactions involving the identical crime. See Neal, supra. The interpretation of “same conduct” to mean “same transaction” is not inconsistent with (b) (1) (iii) (B) of OCGA § 16-1-8, McCannon, supra at 517-518 (the latter crime “was not consummated when the former trial began”), because the purpose of that language is not to include “different transactions” within the meaning of “same conduct” but rather the language is meant to address situations such as that arising in Lowe v. State, 240 Ga. 767, 768-769 (1) (242 SE2d 582) (1978) (five months after accused was indicted and pled guilty to charge of aggravated assault, victim of that assault died; murder indictment not barred by former aggravated assault prosecution because murder was not consummated when former trial began).

Decided November 23, 1992.

Timothy G. Madison, District Attorney, Jerry C. Gray, Jeffrey G. Morrow, Assistant District Attorneys, for appellant.

Donna L. Avans, for appellee.

Accordingly, OCGA § 16-1-8 is no bar to appellee’s subsequent prosecution on the two indictments in issue. See generally Sandner, supra at 63 (2).

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1448.
    DIX v. THE STATE.
    (425 SE2d 419)
   Cooper, Judge.

Appellant was convicted by a jury of entering an automobile with intent to commit a theft therein. He appeals following the denial of his motion for new trial.

The evidence reveals that an officer with the Atlanta Police Department responded to a call regarding a theft at a local church. When the officer arrived at the church, he was met by a man who stated that he had witnessed a man breaking into the back window of a car parked in the church parking lot. The witness described the man he saw as wearing a white jacket, blue jeans and tennis shoes and carrying a black canvas bag. The witness also told the officer that the man took a black purse from the car and placed it inside his canvas bag. The officer observed that the car identified by the witness had a broken rear window. The witness agreed to accompany the officer around the immediate area to see if they could locate the suspect. As the officer and the witness drove around, they observed a male fitting the suspect’s description, and the witness identified the man as the person he saw break into the car. The officer placed the suspect, identified as appellant, under arrest and then searched the canvas bag and discovered a black purse. Appellant testified and denied breaking into a car, contending that he found the purse in some bushes.

1. Appellant, an indigent, contends in his first enumeration of error that the trial court erred in denying his motion for complete recordation of the proceedings. Specifically, appellant argues that the lack of a transcript of the closing arguments prevents him from showing error which allegedly occurred during the prosecutor’s argument to the jury and which is the subject of appellant’s second enumeration of error.

“[OCGA § 17-8-5] mandates the transcription of the proceedings in all felonies except the argument of counsel.” Brown v. State, 242 Ga. 602 (2) (250 SE2d 491) (1978). We note initially that appellant’s objection and motion for mistrial were not timely made. Even in the absence of complete recordation, it is customary that objections to arguments are transcribed by the court reporter at the time they are made for purposes of appeal. See Newell v. State, 237 Ga. 488 (2) (228 SE2d 873) (1976). The record reflects that while the jury was deliberating, appellant objected and moved for mistrial on the ground that the prosecutor had commented that if convicted, appellant might not serve all of his sentence because of overcrowding in the jails. The prosecutor responded that she referred only to appellant’s early release from prison on a prior conviction and that she did not comment on the sentencing in the present case. The trial court overruled appellant’s motion for mistrial. Appellant’s failure to object either during the prosecutor’s closing argument or at the conclusion of all argument, precluded the trial judge from issuing any curative instructions which he deemed appropriate at the time.

Furthermore, “ ‘ “(t)he trial judge in passing upon a motion for mistrial on account of alleged improper argument... is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Cit.)’ [Cit.]” Martin v. State, 193 Ga. App. 581, 587 (4) (388 SE2d 420) (1989). “Considering the state of the record and the totality of the circumstances, we are satisfied that the trial judge did not abuse his discretion in denying appellant’s [motion] for mistrial. [Cit.]” Oller v. State, 187 Ga. App. 818, 822 (3) (371 SE2d 455) (1988).

Decided November 23, 1992.

Harry L. Hutchinson, Steven J. Jackson, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.

2. Appellant also enumerates as error the trial court’s refusal to give his written request to charge on the lesser included offense of criminal trespass. “A person commits the offense of criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without his consent.” OCGA § 16-7-21 (a). Appellant argues that he was entitled to a charge on criminal trespass based on his testimony at trial that he found the stolen purse which was in his possession at the time of his arrest. “The correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). Even if appellant’s testimony was sufficient to warrant a charge on the lesser included offense of criminal trespass, we cannot conclude that the failure to give the charge was reversible error. An explanation of the lesser included offense would have properly contained an instruction to the jury that it could only consider the lesser included offense after it found the accused not guilty of the charged offense. See Brownlee v. State, 155 Ga. App. 875 (5) (273 SE2d 636) (1980). The jury found appellant guilty of the charged offense beyond a reasonable doubt, and the evidence supports the verdict. Consequently, we find no reversible error. See State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).

Judgment affirmed.

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


text:
    A92A1551.
    WEEKS v. THE STATE.
    (425 SE2d 421)
   Cooper, Judge.

Appellant was convicted of possession of marijuana. In his sole enumeration of error, appellant contends the trial court erred in denying his motion to suppress contraband seized from his vehicle because the State failed to prove that the police roadblock in which he was stopped was reasonable and that he consented to the search of his vehicle.

The transcript of the hearing on the motion to suppress shows that the roadblock was authorized by a Major Bass of the Cherokee Sheriff’s Department but was executed by other department personnel; that the area was well lit; that the roadblock was marked with the flashing blue lights of three patrol cars; and that every vehicle which approached the checkpoint was briefly stopped. When appellant reached the checkpoint, as one officer checked his driver’s license and proof of insurance, another officer shined a flashlight into the car. The officer spotted cigarette rolling papers in the back seat and observed leaves and grass on the passenger side of the car. The officer then asked appellant “if he had ever smoked dope and specifically referenced marijuana.” Appellant stated that he had but that it had been about a month before. At that point, appellant was asked to get out of the car and perform field sobriety tests. While he was outside the vehicle, the officer asked if she could look in his car. Appellant did not recall giving his consent; however, the officer testified that appellant replied, “that was fine, it was okay, it didn’t matter.” With her flashlight, the officer then looked at the passenger side floorboard and saw a cellophane wrapper from a cigarette package and what appeared to be an eighth of a teaspoon of marijuana residue on the floorboard. The officer asked appellant if that was marijuana on the floorboard. Appellant hesitated before answering and then asked, “Am I in trouble?” Appellant said he would get the suspected marijuana from the car, but the officer intervened. She picked up the residue, smelled it and concluded it was marijuana.

The trial court found that the roadblock met the requirements of State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984) and more recent cases applying the “totality of the circumstances” test to roadblocks. The court also found that appellant consented to the search of the car and denied appellant’s motion as to the marijuana seized. However, the court concluded that the questioning of appellant was improper, without probable cause and without advice of Miranda rights, and ordered the suppression of the questioning of appellant and the circumstances and results of the field sobriety tests.

“In Golden v. State, supra at 29 (2), and Evans v. State, [190 Ga. App. 856 (380 SE2d 332) (1989)], we addressed several factors in determining whether the roadblocks which were there in issue were ‘reasonable’ and constitutional. However, ‘(n)either Evans nor Golden establishes) absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this court looked “at the totality of the circumstances surrounding the roadblock” to decide whether “the factors in Golden were satisfied.” (Cit.) . . .’ [Cit.]” Christopher v. State, 202 Ga. App. 40, 42 (1) (413 SE2d 236) (1991). “As there is no question that [police] are authorized to enforce laws on use, ownership, control, licensing, and registration of motor vehicles and using roadblocks for such purposes are reasonable and acceptable ([cit.]), the . . . issue in this appeal is whether the trial court correctly decided that the evidence established that this roadblock was authorized and that [appellant] was not singled out to stop. In deciding the issue, however, our review is governed by the principle that in ruling upon motions to suppress ‘the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.’ [Cit.]” Mims v. State, 201 Ga. App. 277, 280 (410 SE2d 824) (1991). Under the totality of the circumstances, the evidence shows that the roadblock was valid and was not established and implemented as a pretext for stopping appellant. Id. at 280; Christopher, supra at 42.

As to appellant’s contention that the State failed to show by clear and convincing evidence that he freely and voluntarily consented to the search of his car, appellant argues that he was not free to leave and was illegally detained during the search of his car. Thus, his consent was not voluntarily given. Whether a person is “free to leave” is not “the sole basis for determining whether a defendant’s consent to search was freely and voluntarily given. ‘The more appropriate inquiry is whether a reasonable (person) would feel free to decline the officers’ request (to search) or otherwise terminate the encounter.’ [Cit.] More specifically, ‘(t)he courts determine the voluntariness of . . . consent by examining the “totality of the circumstances,” including the age of the accused, his education and intelligence, the length of detention, whether he was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of these factors. [Cits.]’ [Cit.]” State v. Jackson, 201 Ga. App. 810, 814-815 (412 SE2d 593) (1991). The trial court correctly determined that the questioning and administration of field sobriety tests were improper and on that basis suppressed the introduction of evidence regarding the questioning of appellant in the vehicle as well as the circumstances and results of the field sobriety tests. Appellant had been removed from his car and was performing repeated sobriety tests, the results of which were negative, when he was asked, without advice of his constitutional rights and without probable cause, to consent to a search of his car. Under the totality of the circumstances, it is difficult to imagine a clearer example of an instance in which an individual would not feel free to decline the request to search. Moreover, the plain view doctrine will not support the illegal warrantless search and seizure because the doctrine does not apply unless the police “are lawfully in position to obtain the view [and] the discovery is inadvertent.” Samuel v. State, 198 Ga. App. 558, 560 (2) (402 SE2d 325) (1991). The officer testified that she spotted one-eighth of a teaspoon of suspected marijuana amidst leaves and grass on the floorboard of appellant’s car with a flashlight while standing outside the vehicle during appellant’s unlawful detention. Without the unlawful detention of appellant, the stop would already have been concluded. Furthermore, the marijuana residue was not inadvertently discovered because the officer was no longer performing a general search of the vehicle for safety reasons but in fact was searching for marijuana when the marijuana residue was discovered.

Decided November 23, 1992.

Hicks, Marsh, Casey & Young, Diana W. Young, for appellant.

Daniel T. Stringer, Solicitor, James A. Ward, Jr., Assistant Solicitor, for appellee.

Based on the foregoing, we conclude that although the roadblock was properly established and implemented, the trial court should have granted appellant’s motion to suppress the unlawfully seized marijuana.

Judgment reversed.

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


text:
    A92A1603.
    ATLANTA ECONOMIC DEVELOPMENT CORPORATION v. RUBY-COLLINS, INC.
    (425 SE2d 673)
   Cooper, Judge.

This is a construction contract dispute involving a claim by appellee, a general contractor, against appellant, the owner and developer of an industrial park, for damages resulting from delays in a construction project. We granted this interlocutory appeal to consider whether the trial court erred in denying appellant’s motion for partial summary judgment. In its sole enumeration of error, appellant contends its motion for partial summary judgment on the issue of damages for delay should have been granted because the contract between the parties provided that appellee waived its right to damages for delay.

Appellant and appellee executed a written contract under which appellee agreed to widen a parkway and extend a culvert in return for a set sum. As their contract, the parties used a form published by the American Institute of Architects (“AIA”), the “Abbreviated Form of Agreement Between Owner and Contractor.” The parties incorporated into their contract the bid package prepared by engineers hired by appellant. The bid package contained a suggested contract form different from the AIA contract signed by the parties in many respects. The AIA contract did not contain a provision waiving damages for delay; however, paragraph 3 of the contract form in the bid package contained an alleged no-damages-for-delay clause which stated as follows: “The Owner hereby agrees to pay the Contractor for the faithful performance of this Agreement and as full compensation for everything furnished and done by the Contractor under the Contract, subject to addition and deduction as provided in the specifications or proposal, in lawful money of the United States, the sum of which sum shall also pay for losses or damages arising out of work aforesaid, or from the action of the elements or from unforeseen obstructions or difficulties encountered in the prosecution of the work, and replacing defective work or material for a period of one (1) year [from] completion.”

The contract form in the incorporated bid package was unsigned, and the lines provided for entry of the sum to be paid were left blank as they are here. The engineers’ suggested contract form was contained on pages 3-6 of the incorporated bid package, the rest of which included the notice to contractors, appellee’s bid, general specifications of the job and special provisions regarding the work required. Other terms of the AIA contract executed by the parties provided that a flat sum would be paid appellee “provided that the scope of the work does not change”; that the time for completion of the work would be extended in the event of delays beyond appellee’s control; and that appellee was responsible for coordinating work on the project.

Appellant argues that the parties bound themselves by the terms of the unexecuted contract form in the bid package when they incorporated that package into their agreement, and therefore that paragraph 3 of that form, viewed in light of the provisions of the executed AIA contract noted immediately above, unambiguously waived damages for delay. Even if the parties’ agreement unambiguously incorporated the bid package as a whole, however, the omitted price term in paragraph 3 renders the paragraph and the parties’ intent to incorporate and be bound by the terms of that paragraph ambiguous. Moreover, this ambiguity is compounded by the very circumstance that the executed contract purported to incorporate a draft, unexecuted contract form, particularly in light of the fact that this unexecuted form was a relatively small portion of a larger incorporated document containing work specifications which were clearly an essential part of the parties’ agreement and were logically the intended target of the incorporation of the document. See OCGA § 13-2-2 (1) (in interpreting a contract, “[a]ll the attendant and surrounding circumstances may be proved . . .”); see also Brunswick Floors v. Carter, 199 Ga. App. 110, 111 (1) (403 SE2d 855) (1991). In short, we believe the parties in this case could easily have agreed to incorporate the package containing the unused contract form without intending to be bound by terms of that form. Appellant cites no case in which an earlier, unexecuted form version of the same contract is incorporated by reference into a final agreement under circumstances such as these, and cases cited by appellant for the undisputed general proposition that a contract can incorporate by reference another document do not persuade us that incorporation of the form is what the parties intended or accomplished here.

Having concluded that the scope and effect of the incorporation provision was rendered ambiguous by the omitted price term, the nature of the incorporated documents and the circumstances surrounding the incorporation, we now attempt to resolve the ambiguity by applying pertinent rules of construction. See Intl. Business &c. v. Archer Motor Co., 187 Ga. App. 97, 99 (369 SE2d 268) (1988). First, we note that although a provision waiving damages for delay will be enforced if it is clear and unambiguous, any ambiguity in the existence or coverage of such a provision must be construed against appellant, the drafter who seeks to rely on such a provision, because no-damages-for-delay provisions act as exculpatory clauses. See Department of Transp. v. Arapaho Constr., 257 Ga. 269, 270 (357 SE2d 593) (1987). Second, we may consider parol evidence relevant to the parties’ intent to incorporate the unexecuted contract form in general and paragraph 3 of that form in particular. See OCGA §§ 13-2-2 (1); 24-6-3 (b); Manuel v. Manuel, 239 Ga. 685, 689 (238 SE2d 328) (1977). Both parties attached affidavits to their briefs on the partial summary judgment motion below. Appellant’s affidavit did not address or mention anything relevant to the parties’ intent to incorporate the terms of the unexecuted contract form. However, the affidavit submitted by appellee stated that the AIA contract prepared by appellant and sent to appellee did not have the unexecuted contract form attached; that various changes to the AIA contract were negotiated and made but the contract form was never mentioned; that when the AIA contract was passed back and forth to make the necessary changes, the contract form was never attached or discussed; that appellant wanted to eliminate the words “provided the scope of work does not change” from the paragraph in the AIA contract providing for the payment of a lump sum, but appellee refused to accept that change; and that the actual executed copy of the final AIA contract forwarded by appellant to appellee did not have the contract form attached. We also note from the documents in the record that, although the parties did not specifically address delay damages in their executed AIA contract, they did specifically include in that contract an insurance provision that was part of the unexecuted contract form.

Applying the relevant rules of contract interpretation, it is clear that the ambiguity regarding the parties’ intent to incorporate the contract form in the bid package as a whole and paragraph 3 in particular cannot be resolved in favor of appellant. Thus, the trial court properly denied appellant’s motion for partial summary judgment. At best there is a question of fact regarding the parties’ intent to include a waiver of damages for delay in their agreement, and in light of appellee’s undisputed evidence and the rule that the ambiguity should be construed against appellant, it is likely that partial summary judgment for appellee on this limited issue would have been appropriate.

Decided November 23, 1992.

Alston & Bird, John I. Spangler III, Matthew H. Triggs, for appellant.

Schreeder, Wheeler & Flint, David Flint, Lynn C. Stewart, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, C. J., concurs in judgment only.


author: Andrews, Judge.

text:
    A92A1625.
    McDANIEL et al. v. PETERBOROUGH CABLEVISION, LTD.
    (425 SE2d 424)
   Andrews, Judge.

Appellants sued Peterborough Cablevision, Ltd. (PC) and others to recover damages for the death of Granger Rodgers, who was killed when his automobile collided with a car driven by David Gosling. Appellants alleged that, at the time of the accident, Gosling was acting within the scope of an employer-employee relationship with PC, and that PC is liable under the theory of respondeat superior for Gosling’s negligence in causing the accident and resulting death. PC, a foreign corporation organized under the laws of England, moved for dismissal of the complaint on the basis that the court lacked jurisdiction over the corporation. In part, PC argued that it was not subject to jurisdiction as a non-resident under OCGA § 9-10-91 (2) on the basis of committing a tort within the state because: (1) Gosling was hired as an independent contractor, and not as an employee of PC, and (2) even if the court concluded Gosling was an employee of PC, he was not acting within the scope of that employment at the time of the accident. The trial court’s order on the motion to dismiss reflects that at a hearing the court considered affidavits submitted by PC in support of its motion, and with the consent of the parties, treated the motion as one for summary judgment. Subsequent to the hearing, the trial court granted summary judgment in favor of PC, concluding that, at the time of the accident, Gosling was engaged in personal entertainment rather than activities within the scope of PC’s business. The appellants’ sole enumeration of error is that the trial court erred in granting summary judgment because a question of fact exists as to whether Gosling was acting within the scope of employment with PC.

The record reflects that Gosling, a citizen of England, was in the United States to observe the cable company operations of Premier Cable Communications (Premier) for PC. On the evening of March 2, 1990, Gosling left the Premier offices and drove to Atlanta with a Premier employee to watch a professional basketball game. After the game, Gosling rented a car in his name using his own money, and went with the Premier employee to two restaurants. After leaving the second restaurant driving the rented car, Gosling was involved in the automobile accident at issue. In support of its motion, PC presented the affidavits of Keith Davis, the managing director of PC, and Gosling, who both stated that Gosling was hired by PC, not as an employee, but as an independent contractor consultant, to travel to the United States to observe the operations of Premier. The affidavits state that Gosling was compensated a fixed amount monthly; that he received no health insurance benefits from PC, nor did PC pay any taxes on his behalf; that Gosling paid for the rented car with his own money, and sought no reimbursement from PC; that PC had no authority to control the manner, time or means of Gosling’s consultant work, nor did PC ever assume such control. Gosling’s deposition testimony also supports the facts related in the affidavits.

Generally, an employer is not responsible under the theory of respondeat superior for the torts of one employed as an independent contractor. St. Paul Cos. v. Capitol Office Supply Co., 158 Ga. App. 748 (282 SE2d 205) (1981). An employer-employee relationship exists when the employment agreement gives, or the employer assumes, the right to control the time and manner of executing the work. In an employer-independent contractor relationship, the employer has the right merely to require results in conformity with the employment agreement, and the independent contractor retains the right to perform the work by his own means, method and manner. Dennis v. Malt, 196 Ga. App. 263, 265 (395 SE2d 894) (1990).

PC has set forth specific facts showing that Gosling was employed as an independent contractor, and denying the existence of any employer-employee relationship upon which liability could be imputed to PC on the basis of respondeat superior. “A denial of the existence of an agency relationship may constitute an uncontradicted fact which will sustain a motion for summary judgment. Likewise, the bare denial of the particular agency relationship of employer-employee, made by a purported party to the relationship, is a statement of fact sufficient to support a motion for summary judgment in an action based on the doctrine of respondeat superior. In such circumstances the adverse party may not rest on his pleadings, but by response must set forth specific facts revealing a genuine issue for trial. Exhibiting the mere possibility of a control situation falls short of the specific facts required.” (Citations and punctuation omitted.) Id. at 266; Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551-553 (261 SE2d 361) (1979); Dunlap v. First Rock Credit Corp., 194 Ga. App. 563, 565 (390 SE2d 919) (1990); Hill-Everett v. Jones, 197 Ga. App. 872, 873 (399 SE2d 739) (1990). The evidence presented by PC pierced appellants’ allegations that PC was liable for Gosling’s negligence on the basis of an employer-employee relationship, and appellants failed to come forward with evidence sufficient to show a genuine issue for trial. Although it appears the trial court may have granted summary judgment to PC on another basis, a judgment right for any reason will be affirmed. Spiezio v. American Gen. Finance, 204 Ga. App. 350, 352 (419 SE2d 149) (1992).

Decided November 23, 1992.

Williams & Henry, Benjamin S. Williams, Harvey R. Spiegel, Howard Beer, for appellants.

Troutman, Sanders, Lockerman & Ashmore, William N. Withrow, Jr., A. William Loeffler, Irwin, Bladen, Baker & Russell, Thurbert E. Baker, for appellee.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

       “ ‘A respondent to a motion to dismiss is entitled to notice of conversion of the motion into one for summary judgment and to thirty days to respond to the motion for summary judgment unless such notice and opportunity are waived.’ Peppers v. Elder, 248 Ga. 136 (281 SE2d 582) (1981).” Bonner v. Fox, 204 Ga. App. 666, 667 (420 SE2d 312) (1992). The trial court’s order reflects such an apparent waiver, and appellants do not claim as error that they were denied notice and opportunity to be heard under OCGA § 9-11-56.

       Under specified circumstances not applicable in the present case, an employer is liable for the negligence of an independent contractor. OCGA § 51-2-5.


text:
    A92A1658.
    SPEEDWAY GRADING CORPORATION v. GARDNER.
    (425 SE2d 676)
   Sognier, Chief Judge.

Speedway Grading Corporation brought an action for libel and slander against the Reverend Warren Gardner. The trial court granted Gardner’s motion for summary judgment, and Speedway appeals.

Appellant operates a private sanitary landfill in Barrow County pursuant to a permit issued by the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources (“DNR”). Appellee, who resides near the landfill, has acknowledged that he has long been concerned about the presence of the landfill and the safety of its operations. During the period of time relevant to this action, appellant had pending before EPD a request for a permit to expand the landfill. In December 1990, appellant held a public hearing required as part of the application process, and appellee was one of a number of citizens who spoke in opposition to the grant of the expansion permit. Appellee subsequently was invited to a meeting of citizens opposed to the permit and became involved with a loosely organized group known as Citizens Against Pollution (“CAP”).

On January 24, 1991, appellee wrote á letter to Joe Tanner, DNR Commissioner, expressing his concerns over the operation and expansion of the landfill and requesting the Commissioner to investigate the questions appellee raised about the legality and propriety of appellant’s operations. At the same time, appellee wrote EPD to request that the water in the creek and lake downstream of the landfill be tested for contaminants before any expansion was permitted. Appellee also distributed to various persons copies of two documents: (1) a report of laboratory tests made on water samples taken by another concerned citizen, which indicated that the level of arsenic in the sample taken downstream of the landfill exceeded that of the upstream sample; and (2) a summary appellee prepared of the history of the landfill’s operations, prior citations issued by EPD, and his concerns about its continued operation. In addition, at a county commission meeting appellee presented three motions concerning the pending permit application, and the commission passed a nonbinding resolution opposing the issuance of the expansion permit.

Appellant alleged in its complaint that appellee intentionally published false statements that appellant’s operations had contaminated a creek with arsenic and that appellant had, through the making of a campaign contribution, improperly influenced a judge to rule in its favor in an unrelated lawsuit concerning the validity of its permit. In response to appellee’s discovery requests, appellant identified the written and oral communications of appellee it contended were defamatory and the persons to whom the statements were communicated. Appellee then filed these communications in support of his motion for summary judgment made on the ground that the statements were not defamatory. Appellant contends that the grant of summary judgment was error because the question whether appellee implied or “insinuated” false charges on these two topics must be decided by a jury. We disagree and affirm.

“[L]ibel is a false and malicious defamation of another, expressed in print [or] writing . .. tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule” and published to another. OCGA § 51-5-1. Slander is defined as, inter alia, “[m]aking charges against another in reference to his trade . . . calculated to injure him therein” or “[u]ttering any disparaging words productive of special damage which flows naturally therefrom.” OCGA § 51-5-4 (a) (3), (4). To be actionable, a communication must be both false and malicious, Williams v. Trust Co., 140 Ga. App. 49, 50 (230 SE2d 45) (1976), and the truth of the statement may be proved in justification. Id.; see OCGA § 51-5-6. Although as a general rule the question whether a particular communication is defamatory is for the jury, if the statement is not ambiguous and reasonably can have only one interpretation, the question of defamation is one of law for the court. Southern Business Machines v. Norwest Fin. Leasing, 194 Ga. App. 253, 259 (4) (390 SE2d 402) (1990).

1. With regard to the chemical testing of the creek water, appellee stated only that the tests had been performed and quoted the results reported by the laboratory. He did not misstate or mischaracterize the results, and he never attributed any contamination to appellant. Instead, he merely described the locations where the samples had been taken and requested further testing by appropriate governmental bodies to ascertain the source of the contamination. Indeed, when a newspaper article indicated appellee had accused appellant of contamination, he demanded and received a retraction because, as he explained, he had never stated that appellant was in fact the source of the elevated arsenic levels. Considering these writings as a whole and in the eyes of the average reader and avoiding any strained construction of their contents, id. at 259-260 (4), we conclude that as a matter of law the writings were not libelous. See generally id.

Appellee also submitted affidavits of each person identified by appellant as having heard or received the alleged defamatory communications, and each person denied having been informed by appellee that appellant had contaminated the creek or any other waterways. Appellant has submitted no evidence to controvert these affidavits. When a defendant who will not bear the burden of proof at trial moves for summary judgment and identifies evidence in the record or submits affidavits, depositions, or other documents that demonstrate “an absence of evidence to support the nonmoving party’s case . . . the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue” or suffer judgment against it. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Since appellee met his burden of rebutting appellant’s allegations of libel and slander and appellant failed to produce any specific evidence in response, appellee was entitled to summary judgment on the claim concerning the statements about arsenic contamination. See id.

2. Appellee’s comments concerning appellant’s possible influence of the judge were made in the letter to Tanner and in the summary appellee apparently distributed to several members of CAP. In these documents, appellee first noted the campaign contribution, which had been disclosed in the judge’s campaign finance reports, and then questioned rhetorically whether the receipt of that contribution had influenced the judge to look favorably upon appellant’s position in the prior litigation. We agree with appellant that these writings, considered in the context in which they were made, could be construed to infer that appellant committed bribery. However, if these communications were privileged under OCGA § 51-5-7, recovery by appellant would be barred absent proof of actual malice. OCGA § 51-5-5; Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) (1986). Although the questions of privilege and malice are generally for the jury, complete privilege may be established as a matter of law if good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons are shown. Id.

“Statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which [he] is concerned” are deemed privileged. OCGA § 51-5-7 (3). Given that appellee resides near the landfill and that it is sited on public waterways, its operations materially affect him and other members of the community, giving him an “interest in a matter in which [he] is concerned.” Appellee certainly has the right under the free speech clauses of the federal and state constitutions to object to the grant or extension of the landfill permit. Accordingly, good faith statements made in the furtherance of that goal fall within the privilege set forth in OCGA § 51-5-7 (3).

The record shows that appellee published the statements in question only to Tanner, the public official charged with granting or denying appellant’s permit application, and to his fellow citizen protestors, and only in the context of raising his objection to the grant of the permit because of appellant’s prior violations and appellee’s concern about water quality. This evidence establishes that the communications were properly limited in scope and published upon proper occasion to proper persons. See generally Thomas v. Hillson, 184 Ga. App. 302 (361 SE2d 278) (1987). Moreover, appellee has asserted his good faith intentions and has denied any malicious intent, stating that his goal was limited to protection of his property and the quality of the water in the public waterway. Appellant has presented no direct evidence to rebut that testimony, and our review of the evidence from which appellant contends an inference of malice can be drawn finds no support for that argument. See generally Cohen, supra at 850-851. Since appellee has presented evidence of each element necessary to establish complete privilege and has denied malice, and appellant has presented no evidence to permit an inference (rather than speculation) of malice, appellee was entitled to summary judgment as a matter of law. See id. at 852; see also Thomas, supra at 304.

Decided November 23, 1992.

Cook, Noell, Tolley & Aldridge, Dan H. Aldridge, Jr., for appellant.

Russell, Adamson & Stell, John E. Stell, Jr., for appellee.

Hollie Manheimer, Gerald R. Weber, amici curiae.

Judgment affirmed.

McMurray, P. J., and Cooper, J. concur.


author: Beasley, Judge.

text:
    A92A1199.
    THE STATE v. DANIELS.
    (425 SE2d 366)
   Beasley, Judge.

The State appeals pursuant to OCGA § 5-7-1 (1) from an order granting Daniels’ motion for discharge and acquittal, following a plea of autrefois acquit for failure to comply with his OCGA § 17-7-170 demand for speedy trial.

This case began in April 1990 when appellee, a Florida resident, was indicted for selling cocaine on June 13, 1989 and trafficking in cocaine on June 14, 1989. This was during the March term of court. OCGA § 15-6-3. Rather than being subject to an arrest warrant and extradition proceedings, his counsel approached the district attorney who agreed to appellee’s voluntary surrender. A bench warrant was thereafter issued Wednesday, May 30, apparently because the district attorney expected the surrender soon after the discussion. Defense counsel apparently intended surrender to be at arraignment or whenever else the court required his appearance.

Appellee filed an OCGA § 17-7-170 demand for speedy trial on Thursday, May 31, 1990, which was the next to last day of the March term of court in which the indictment was filed. OCGA §§ 15-6-3; 15-6-19. Juries were impaneled and qualified to try him at that time. OCGA § 17-7-170 (b). See Kirk v. State, 194 Ga. App. 801, 802 (392 SE2d 249) (1990). Although the case never appeared on the court calendar for any purpose, appellee appeared at his co-defendant’s arraignment on June 4, surrendered to the bench warrant, and was arraigned. That was the first day of the June term. OCGA § 15-6-3.

On June 20, appellee was reindicted and charged with the same two original counts plus a third count of selling cocaine on June 7. He was arraigned and entered a plea of not guilty to the three-count indictment on August 20. Appellee’s counsel testified at an evidentiary hearing on the motion to dismiss that, at arraignment, he orally moved to adopt all motions filed previously in the case. He did not file a written motion for speedy trial after return of the June 20 indictment.

Appellee was not tried during the June term of court, which ended when the next term began on the first Monday of September. The June term was the next succeeding regular term following the term in which the demand was made. There were juries impaneled and qualified to try him during both the March and June terms. A motion for discharge and acquittal was filed in October (in the September term), based on the State’s failure to comply with that demand. It was denied by the trial court and affirmed by this court in Daniels v. State, 199 Ga. App. 400 (405 SE2d 88) (1991). The basis was that a waiver of the demand occurred during a term when Daniels was not physically present but had voluntarily absented himself from the court and so waived his demand.

State v. Collins, 201 Ga. App. 500, 501 (411 SE2d 546) (1991), overruled Daniels, supra, holding that “OCGA § 17-7-170 is satisfied if a defendant is available for trial, whether physically present in court or not.” Following Collins, appellee was called for trial on the new indictment and renewed his plea of autrefois acquit, which was granted.

1. The State contends that appellee waived his speedy trial demand when he failed to surrender to the jurisdiction of the court during the March term, “thereby effectuating a continuance from one term to the next by keeping himself unavailable for trial.”

. Although defense counsel agreed to have appellee present in court at any time the State wanted him, no proceedings of any kind were scheduled on the court calendar during the March term and no date was set for surrender. Nor did the State establish that appellee was unavailable. See Collins, supra. In fact, he was subject to appearance upon notice. There occurred no affirmative act on appellee’s part which delayed trial during the March term or which passed the case to the subsequent term. See Ciprotti v. State, 190 Ga. App. 639, 641 (4) (379 SE2d 802) (1989). Compare State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984). He did nothing which conflicted with his demand or interfered with its fulfillment.

Appellee presented himself the first day of the June term but the State took no action to try him until after the period mandated by the demand. The delay was not occasioned by appellee’s failure to appear. See Ciprotti, supra. Compare Hardwick v. State, 231 Ga. 181 (3) (200 SE2d 728) (1973).

Implicit in the trial court’s order is a determination that appellee was available for trial under Collins, supra. That finding is supported by the evidence. The State did not carry its burden of establishing a waiver of his speedy trial demand. Ciprotti, supra at (3).

2. The State contends that appellee is nevertheless not entitled to discharge and acquittal because he failed to file a written demand after return of the second indictment.

Appellee filed his demand for trial after return of the first indictment and before the reindictment. Both indictments were identical regarding the offenses of selling cocaine on June 13, 1989 and trafficking in cocaine on June 14,1989. The reindictment had the same effect as a nolle prosequi of the first indictment. “The entry of an order of nolle prosequi in a case does not prevent a defendant as a matter of law from claiming the benefits of OCGA § 17-7-170. [Cit.]” Ciprotti v. State, 187 Ga. App. 61, 63 (2) (369 SE2d 337) (1988). “It is the State’s failure to try a defendant pursuant to his original demand for a speedy trial, not the subsequent entry of a nolle prosequi, that results in an automatic acquittal. It does not ‘matter that a demand for trial had been entered on the (subsequently nolle prossed) first indictment, provided (the defendant) was tried on it or on (a) new indictment, charging the same offense, at the term when the demand was made, or at the next succeeding term.’ [Cit.]” Knight v. State, 197 Ga. App. 250, 251 (1) (398 SE2d 202) (1990).

The speedy trial demand effective as to the first indictment, and adopted after reindictment, was effective as to the repeated charges in the second. Hurt v. State, 62 Ga. App. 878 (10 SE2d 136) (1940). Prosecution of those two offenses was barred. Compare Jordan v. State, 194 Ga. App. 415 (390 SE2d 614) (1990) (a motion for acquittal was properly denied where defendants had not filed a demand for trial nor had a written order been entered granting their motions to adopt the demand of a co-defendant).

However, “discharge and acquittal under the demand could only be operative as to the offence charged in the indictment which was . . . pending when the demand for trial was made.” Brown v. State, 85 Ga. 713, 717 (3) (11 SE 831) (1890). Since no new speedy trial demand was filed after reindictment, the demand was ineffective as to the added count charging the sale of cocaine on June 7, 1989.

The district attorney conceded that the State knew of the events of June 7 at the time of the first indictment but did not charge appellee with that offense until receiving additional information tying him to that transaction. Appellee asserts that the State is therefore barred under OCGA § 16-1-7 (b) from prosecuting the new offense. “OCGA § 16-1-7 (b) presupposes that the defendant has been subjected to a previous prosecution. [Cit.] A ‘prosecution’ encompasses more than the mere return of an indictment. . . . For purposes of OCGA § 16-1-7 (b), as well as OCGA § 16-1-8, a defendant has been prosecuted on an indictment or accusation ‘only after (he) has been initially placed in jeopardy. “A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment ... , he has been arraigned, has pled and a jury has been impaneled and sworn.” (Cit.)’ [Cit.]” Cochran v. State, 176 Ga. App. 58, 60 (335 SE2d 165) (1985). Appellee was never placed in jeopardy as to the first indictment; prosecution of the new offense is not barred under OCGA § 16-1-7 (b).

Decided November 10, 1992 —

Reconsiderations denied November 20, 1992 and November 24, 1992

Spencer Lawton, Jr., District Attorney, Elise 0. Gray, Assistant District Attorney, for appellant.

John R. Calhoun, William 0. Cox, for appellee.

The order of the trial court granting appellee’s motion for acquittal as to Count 1 is accordingly reversed; otherwise the order is affirmed.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1516.
    HURST BOILER & WELDING COMPANY, INC. v. FIRSTLINE CORPORATION.
    (426 SE2d 22)
   Johnson, Judge.

Firstline Corporation brought this action against Hurst Boiler & Welding Company, Inc., seeking damages for the negligent repair of its boiler. The boiler supplies hot oil to a laminating machine which produces a material used to seal the roofs and floors of mobile homes. This material cannot be produced without a functioning boiler. Firstline sought to recover lost profits for the period that its lamina-tor was “down” due to the alleged negligent repair of its boiler, and damages in the amount of the actual costs of repair. The jury returned a verdict in favor of Firstline in the amount of $59,302. Hurst appeals from the judgment entered on the verdict, seeking a new trial solely on the issue of damages.

1. Hurst contends that the trial court erred in allowing Firstline’s financial officer to testify regarding the amount of time during March 1990 that Firstline was not in operation as a result of ineffective repairs made to its boiler. Hurst argues that the testimony was inadmissible hearsay because it was based upon the financial officer’s summary of the contents of production records which were never introduced into evidence and about which he had no personal knowledge. We agree.

Firstline’s financial officer testified that Firstline had not operated for 132 3/4 hours in March 1990. In reaching this calculation, the financial officer testified that for the days on which no production records were generated, he inferred that the boiler had not been operating. The record shows that Firstline’s production records, as a whole, were not admitted into evidence, thus it cannot be determined whether production records did or did not exist for the hours in question. The financial officer’s testimony, to the extent that it was based upon the plant’s production records, should have been excluded. This testimony, which was presented to prove the specific contentions of Firstline with respect to lost profits resulting from Hurst’s negligent repair work, may have improperly influenced the jury in arriving at its verdict. Foster v. National Ideal Co., 119 Ga. App. 773, 775 (3) (168 SE2d 872) (1969).

The third party who prepared the production records did not testify at the trial, and the financial officer admitted that he did not have any personal knowledge that the boiler was not functioning during the hours for which there were no production records. That portion of the officer’s testimony based solely on the production records prepared by a third party and not based on his personal knowledge is inadmissible hearsay and, as such, should not have been allowed to be considered by a jury. Foster, supra; see also Sabo v. Futch, 226 Ga. 352 (1) (175 SE2d 16) (1970). See also State v. Speir, 189 Ga. App. 254, 255 (2) (375 SE2d 298) (1988); accord Highsmith v. Fillingim, 171 Ga. App. 548, 549 (320 SE2d 391) (1984).

It is the plaintiff’s burden to prove its damages. Damages must be proved by evidence which furnishes the jury with sufficient data to enable them to calculate the amount with reasonable certainty. Simmons v. Boros, 176 Ga. App. 346, 347 (1) (335 SE2d 662) (1985); see also Allison v. Auto-Owners Ins. Co., 256 Ga. 446, 447 (349 SE2d 682) (1986). Proof of damages cannot be “left to speculation, conjecture and guesswork.” Simmons, supra.

The trial court erred in admitting the testimony of the financial officer regarding the production records. In the absence of that testimony, the evidence on the issue of damages is not sufficient to sustain plaintiff’s burden of proof. For this reason the case must be reversed and remanded to the trial court for a new trial on the issue of damages. See generally Cassidy v. Wilson, 196 Ga. App. 6, 9 (395 SE2d 291) (1990).

2. In view of our holding above, we need not address the remaining enumerations of error.

Judgment reversed and case remanded for new trial on the issue of damages only.

Carley, P. J., and Pope, J., concur.

Decided November 9, 1992 —

Reconsideration denied November 24, 1992.

McCollum & Rawlins, Elliott P. McCollum, Jr., for appellant.

Oris D. Blackburn, P.C., J. Converse Bright, for appellee.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A0827.
    COLLAR v. THE STATE.
    (426 SE2d 43)
   Birdsong, Presiding Judge.

Richard E. Collar, Jr., appeals his conviction for sexually molesting his daughter. He contends the trial court erred by denying his motion for an independent psychological examination of his daughter, by excluding the testimony of a psychologist to the effect that he did not fit the child abuser profile, by excluding testimony concerning his polygraph examination, and by limiting the testimony of two of his character witnesses. Held:

1. The trial court did not err by refusing to order an independent psychological examination of the victim. Our Supreme Court has recognized that in criminal cases it is violative of the rights of witnesses or victims for them to be ordered to submit to surgery or examinations for visual acuity. See State v. Haynie, 240 Ga. 866 (242 SE2d 713). We perceive no difference between those procedures and the examination that Collar sought. Moreover, although a defendant has a right to interview witnesses, witnesses cannot be compelled to submit to the interview (Baxter v. State, 254 Ga. 538, 541 (331 SE2d 561); Rutledge v. State, 245 Ga. 768, 770 (267 SE2d 199)), and when the witness is a child, the child’s guardian may make this decision. Dover v. State, 250 Ga. 209, 211-212 (296 SE2d 710); Sosebee v. State, 190 Ga. App. 746, 748-749 (380 SE2d 464).

2. Collar claims error because the trial court barred testimony he did not fit a child abuser profile. He bases this argument on the proffer of expected testimony of a psychiatrist, who was not present in court, that he gave Collar certain tests for signs of sexual deviance or abnormality and characteristics of the child abuser profile, and that Collar did not fit the profile.

This proffer was insufficient to show that expert opinion testimony on the child abuser profile should have been admitted. In Jennette v. State, 197 Ga. App. 580, 582-583 (398 SE2d 734), this court affirmed the exclusion of opinion evidence concerning the child abuser profile because the testimony went to the credibility of the defendant and was not beyond the ken of jurors. Nothing in Collar’s proffer suggests that a different result is now appropriate. Collar’s argument in this court, without supporting evidence, that the profile is beyond the ken of the jury is insufficient to establish that as fact.

In cases in which testimony concerning other profiles or syndromes have been found admissible, e.g., Smith v. State, 247 Ga. 612 (277 SE2d 678); Allison v. State, 256 Ga. 851, 852 (353 SE2d 805), the testimony was allowed to assist the jury on matters that otherwise would have been beyond the ken of the jurors. As Collar has not shown that such assistance is necessary, he failed to show that the evidence was admissible. Williams v. State, 254 Ga. 508, 510 (330 SE2d 353). Finally, as Collar presented no evidence on the scientific validity of the opinion testimony he sought to introduce, the trial court could have rejected the testimony on that basis. See Harper v. State, 249 Ga. 519, 525 (292 SE2d 389); Smith v. State, supra. Accordingly, this enumeration of error is without merit.

3. Collar also contends the trial court erred by excluding testimony concerning the results of a polygraph examination conducted by the Georgia Bureau of Investigation. In this state, the results of polygraph examinations are only admissible upon the stipulations of the parties. Miller v. State, 259 Ga. 296 (380 SE2d 690). The evidence shows that although the State was prepared to so stipulate prior to Collar’s examination, Collar refused to do so in this case, and the polygraph results which Collar sought to introduce concern juvenile proceedings involving the custody of his daughter, and not this case. Hence, there was no such stipulation and the results were not admissible. State v. Chambers, 240 Ga. 76-77 (239 SE2d 324). Accordingly, this enumeration is without merit.

4. Finally, Collar contends the trial court erred by refusing to allow two of his character witnesses to explain their answers. The transcript shows the testimony Collar sought exceeded the scope of character evidence established in OCGA § 24-9-84. Further, the scope of the examination of witnesses is committed to the sound discretion of the trial court, and appellate courts will not disturb this discretion unless that discretion is abused. Palmer v. State, 186 Ga. App. 892, 895 (369 SE2d 38). As there is no evidence of such an abuse of discretion, we find no merit to these enumerations of error.

Judgment affirmed. Andrews, J., concurs.

Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 3.1 concur in Division 2 in finding no error, because the evidence, if otherwise admissible, was not shown to have scientific validity. Harper v. State, 249 Ga. 519, 523 (1) (292 SE2d 389) (1982). I do not reach the other ground of exclusion, which is based on whether the evidence has a valid purpose. That is the question addressed in Jennette v. State, 197 Ga. App. 580, 581 (3) (398 SE2d 734) (1990), and Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981).

Decided November 24, 1992.

Clark & McLaughlin, Michael C. Clark, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.