author: Cooper, Judge.

text:
    A91A1170.
    In the Interest of S. E. M., a child.
    (411 SE2d 350)
   Cooper, Judge.

On December 31, 1990, appellant, a juvenile, was arrested and detained for obstruction of a law enforcement officer, possession of a firearm while attempting to commit a crime and public drunkenness in connection with an incident which occurred on that date. A detention hearing was held on January 2, 1991, and appellant was ordered detained until the final adjudicatory hearing; however, a petition on the charges was not filed until January 7, 1991 (File # 91-0001). After further investigation of the incident, the State took steps to bring additional charges against appellant arising out of the same incident. On January 3, 1991, a separate complaint was drawn charging appellant with the additional offenses of escape, two counts of aggravated assault and possession of a firearm while attempting to commit a crime. This complaint states that the date of appellant’s detention on these charges was January 3, 1991, although the record reflects that appellant remained in custody continually from his arrest on December 31, 1990. A detention hearing on the new charges was held on January 7, 1991, wherein the court found reasonable cause and again ordered appellant’s detention. The petition on the second set of charges (File # 91-0051) was filed on January 7, 1991, with File # 91-0001. An adjudicatory hearing was held on both petitions, wherein appellant moved to dismiss File # 91-0001 because the petition was not filed within 72 hours of the January 2 detention hearing pursuant to OCGA § 15-11-21 (e) and File # 91-0051 because the State failed to hold a detention hearing on the charges within 72 hours of appellant’s detention on December 31, 1990, as required by OCGA § 15-11-21 (c). The court granted the motion as to the first petition and ultimately adjudicated appellant delinquent as to three of the offenses in File # 91-0051. Appellant appeals the trial court’s refusal to dismiss the second petition, File # 91-0051.

1. Appellant contends the trial court erred in denying his motion to dismiss based on the State’s failure to hold a detention hearing on the charges in File # 91-0051 within 72 hours of his detention. The State maintained in the trial court that although appellant had actually been detained since December 31, 1990, for the charges enumerated in File # 91-0001, appellant underwent a second “intake” on January 3, 1991, which marked the beginning of his detention on the additional charges in File # 91-0051. Thus, the detention hearing on January 7, 1991, complied with the 72-hour requirement of OCGA § 15-11-21 (c), as the 72 hours actually expired over a weekend, and January 7, 1991, was the Monday following the weekend. Appellant argues that the second “intake” was a fiction and was not a “re-detention”; that he was detained continuously from December 31, 1990; that the additional charges could have and should have been brought by January 2, 1991; and therefore, that his week-long detention on the charges in File # 91-0051 without a hearing until January 7, 1991, was unlawful.

OCGA § 15-11-21 (c) and (e) refer to two critical periods in the prosecution of a juvenile, subsection (c) referring to the 72-hour period between initial detention and the detention hearing, and subsection (e) addressing itself to the 72 hours between the detention hearing and filing of the petition formally setting forth the charges against the juvenile. Appellant’s contentions with regard to File # 91-0051 fall within subsection (c); however, in In re B. A. P., 180 Ga. App. 433 (1) (349 SE2d 218) (1986), we considered the similar question of whether within 72 hours of a detention hearing the State must bring forth charges on all crimes and offenses a juvenile may have committed up to that date or forever waive them. We concluded that if the initial charge upon which the juvenile was detained was properly petitioned within 72 hours and he was then lawfully detained, the State could prosecute for any offenses it uncovered in the meantime. In the instant case, the trial court dismissed the initial charges for which appellant was detained, File # 91-0001, upon a finding that the filing of that petition on January 7, 1991, exceeded the 72 hours required in subsection (e), although it appears that the State could have argued that because the 72 hours expired on Saturday, January 5, 1991, that filing on January 7, 1991 was not untimely. Nevertheless, on January 3, 1991, when the complaint on File # 91-0051 was drawn on the offenses discovered subsequent to the initial complaint, appellant was in lawful detention, since a detention hearing had been held on January 2, 1991, and the 72-hour period following that hearing did not expire until January 5. Consequently, the State was authorized to bring the additional charges, and thereafter the detention hearing on January 7,1991 on File # 91-0051 constituted compliance with OCGA § 15-11-21 (c). Accordingly, the trial court did not err in refusing to dismiss File # 91-0051.

2. In his second enumeration of error, relying on R. A. S. v. State of Ga., 156 Ga. App. 366 (274 SE2d 752) (1980), appellant contends that File # 91-0051 contained some of the same allegations as File # 91-0001 which was dismissed by the trial court and that the court erred in not also dismissing File # 91-0051. In R. A. S., supra, three of the four allegations in a second delinquency petition were previously charged in an initial complaint whereupon there was no detention hearing in violation of OCGA § 15-11-21 (c). However, while the offenses charged in both File # 91-0001 and File # 91-0051 arose from the same incident, they referred to different offenses committed against two victims and were not the same. This enumeration is without merit.

Decided October 9, 1991.

Steven M. Reilly, for appellant.

Phyllis Miller, Solicitor, for appellee.

3. Appellant’s contention that he was illegally detained at the time the additional charges were brought due to the expiration of the 72 hours on File # 91-0001, as enumerated in his third enumeration of error, was addressed in Division 1 of this opinion. This contention is also without merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Carley, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A91A1187.
    SHAW v. THE STATE.
    (411 SE2d 537)
   Carley, Presiding Judge.

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

A witness for the State, who had originally been indicted for robbery, agreed to testify against appellant in return for a reduction in the charge to misdemeanor theft-by-taking and a probated sentence of 12 months. On direct and cross-examination, this witness was questioned and testified about her plea agreement. However, the trial court refused to allow appellant’s counsel to ask the witness what the maximum sentence for robbery was or what she believed it was. The trial court held that these were legal questions which the witness, as a layperson, could not answer. This evidentiary ruling is enumerated as an erroneous restriction on appellant’s Sixth Amendment right to confront the witness.

“ ‘Where the only effect of testimony sought to be adduced is to elicit the opinion of the witness upon a question of law, and not one of fact, such testimony should be repelled.’ [Cit.]” (Emphasis supplied.) Janney v. Dugger, 86 Ga. App. 414, 416 (2) (71 SE2d 777) (1952). See also McWilliams v. State, 177 Ga. App. 447, 449 (2) (339 SE2d 721) (1985). However, the questions that were posited to the witness in the instant case did not seek to elicit from her any opinion upon a question of law. The witness was merely questioned about the extent of her own personal knowledge of a certain legal fact. The maximum sentence for robbery is, as a matter of fact rather than opinion, 20 years. OCGA § 16-8-40 (b). Although a lay witness may not give a legal opinion, there is no prohibition on the questioning of a lay witness about his personal knowledge of relevant legal facts. Although the witness in the instant case was a layperson, the questions that were asked of her certainly related to a legal fact which could have been within her personal knowledge since she had been indicted for robbery. The extent of the witness’ personal knowledge of that legal fact was certainly relevant to the credibility of her testimony in the instant case. See Owens v. State, 251 Ga. 313 (1) (305 SE2d 102) (1983) (a witness’ belief as to his potential sentence in a pending criminal charge against him is relevant evidence of his motives in testifying). See also Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). Thus, the trial court’s restriction of appellant’s cross-examination of the witness was clearly based upon an erroneous reason.

It does not necessarily follow, however, that appellant’s conviction must be reversed. The Sixth Amendment does not afford the defendant in a criminal proceeding an absolutely unfettered right to cross-examine the State’s witnesses as to their potential bias. “On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U. S. 673, 679 (106 SC 1431, 89 LE2d 674) (1986). Accordingly, a trial court’s restriction of the pursuit of cross-examination as to the potential bias of a State’s witness, even if erroneous, may yet be harmless. Delaware v. Van Arsdall, supra at 684; Kinsman v. State, 259 Ga. 89, 91 (7b) (376 SE2d 845).

In the instant case, appellant was not entirely prevented from pursuing the topic of the witness’ pending prosecution. Compare Hines v. State, supra at 260 (2) (wherein the trial court had disallowed “ ‘all inquiry on [the] subject. . . .’ [Cit.]”). Likewise, appellant was not prevented from establishing the specific terms of the witness’ actual plea agreement. The jury was apprised of the fact that, although the witness had been indicted for robbery, she had agreed to testify against appellant in return for a probated 12-month sentence for misdemeanor theft-by-taking. Compare Owens v. State, supra at 314 (1) (wherein the trial court disallowed inquiry into the issue of the sentence that the State’s witness would actually receive for his testimony). The only topic that appellant was prevented from pursuing was that of the potential sentence that the witness might otherwise have faced had no plea agreement been reached. Thus, appellant was permitted to show that the witness had been offered a 12-month probated sentence, but was not permitted to show that, if she had not made a deal, the witness might have been sentenced to as much as 20 years. Showing the maximum sentence that a State’s witness could have received might be “marginally relevant” to reflect on his amenability to secure a deal and on the beneficence of the sentence that the State had actually agreed to seek. However, it seems clear that, considering what appellant was permitted to prove, “[t]he jury’s evaluation of [the witness’] credibility would not have been altered significantly if [appellant] had been allowed to show [that the witness had faced a maximum 20-year sentence]. In view of the foregoing, conjoined with the overall strength of the prosecution’s case, we conclude that any error was harmless beyond a reasonable doubt. [Cit.]” Kinsman v. State, 259 Ga. 89, 92 (7b) (376 SE2d 845) (1989).

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the conclusion that there was error and in the further conclusion that it was harmless under the circumstances. However, I do not fully concur in the characterization which is given to the questions which defendant contends he should have been permitted to ask the State’s witness on cross-examination.

With respect to her potential sentence for robbery, defendant sought to elicit the witness’ understanding of what she faced if she was convicted of robbery instead of cooperating with the State and pleading guilty to misdemeanor theft by taking (OCGA §§ 16-8-2; 16-8-12) in exchange for a probated 12-month sentence. Defendant’s purpose was to show that the witness was biased by self-interest, to the degree of wanting to avoid the risk of a 20-year sentence (OCGA § 16-8-40 (c)). Obviously, her understanding of what she faced, whether she was correct or incorrect as to the legal maximum punishment for robbery, was relevant.

Defense counsel’s initial question was, “What was the maximum that you were — you were indicted for robbery?” That was legally objectionable because it called for a legal fact (the maximum penalty provided by OCGA § 16-8-40 (c)), although the answer, right or wrong, would have shown what she believed the maximum was. After some colloquy, counsel inquired of the court, “May I ask the witness what she thought the maximum sentence for robbery was?” That did not call for a legal fact, much less a legal opinion, but only for her understanding of what she faced. That was relevant to the degree of her bias, as it would show how high she thought the stakes were. Its exclusion was an abuse of discretion. See Fletcher v. State, 197 Ga. App. 112 (1) (397 SE2d 605) (1990), for the rule.

Decided October 9, 1991.

Omotayo Alii, for appellant.

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

We are not, in either event, dealing with a legal opinion. Opinion testimony is “[e]vidence of what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves.” Black’s Law Dictionary, 5th ed. A legal opinion “relates to the legal consequences of a given set of facts. . . .” Grude v. State, 189 Ga. App. 901, 903 (2) (377 SE2d 731) (1989). Only a witness who is qualified as a legal expert would be permitted by the rules of evidence to give a legal opinion. See Grude for an example of a lay legal opinion, which is inadmissible.

One of the reasons the error was harmless is that the witness admitted on cross-examination that she had previously been convicted of the felony of burglary, so the jury was aware that she knew the serious consequences of a felony conviction.


author: Andrews, Judge.

text:
    A91A1082.
    CULLEN v. NOVAK.
    (411 SE2d 331)
   Andrews, Judge.

Novak sued Cullen for injuries from an automobile collision. The case was tried by a jury and a verdict for $190,000 in general damages and $10,000 in punitive damages was returned against Cullen, from which he now appeals.

1. Cullen claims that the trial court abused its discretion by denying his motion for new trial in that the verdict was excessive and was the product of a biased jury. Specifically, Cullen argues that an improper question during Novak’s cross-examination of him and a statement in Novak’s closing argument prejudiced the jury against him, despite the fact that his objections to both were sustained. Pretermitting the question of whether the error was properly preserved for appeal, see Seaboard C. L. R. Co. v. Wallace, 227 Ga. 363, 364 (4) (180 SE2d 743) (1971); Averette v. Oliver, 128 Ga. App. 54, 55 (195 SE2d 925) (1973), we find no abuse of discretion in the trial court’s denial of Cullen’s motion for new trial. OCGA § 5-5-25; see also Medoc Corp. v. Keel, 166 Ga. App. 615 (3) (305 SE2d 134) (1983). The verdict was supported by the evidence, was not excessive, and no prejudice, bias or corrupt means in reaching the verdict appears. OCGA §§ 5-5-20; 5-5-21; West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864 (198 SE2d 420) (1973).

2. In a separate enumeration of error, Cullen contends that the trial court improperly charged the jury on punitive damages since there was no evidence of intentionality, aggravating circumstances, wilful misconduct, malice or wantonness, to justify this charge. Viewed in favor of the verdict, there was evidence from which a jury could have concluded that Cullen carelessly ran a red light and caused the collision with Novak.

There was, however, no evidence of such an entire want of care and conscious indifference to the consequences sufficient to authorize an award of punitive damages. See generally OCGA § 51-12-5; Currie v. Haney, 183 Ga. App. 506 (359 SE2d 350) (1987). To authorize punitive damages under Georgia law, there must be evidence of “wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (365 SE2d 827) (1988). “Negligence, even gross negligence, is inadequate to support a punitive damage award.” Colonial Pipeline, supra at 118; Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (366 SE2d 147) (1988). “ ‘Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton.’ ” Colonial Pipeline, supra at 121.

After a thorough review of the record, we find no evidence to support Novak’s argument that Cullen deliberately and consciously ran the red light. Construing the evidence most favorably for Novak, it shows, at most, the negligent commission of a tort. See Gaither v. Barclaysamerican/Financial of Ga., 194 Ga. App. 188, 189 (390 SE2d 97) (1990). Accordingly, the trial court erred by charging the jury on punitive damages and the award of punitives was improper. Nevertheless, we find no evidence that the verdict was otherwise tainted and the judgment is affirmed on the condition that the plaintiff in error write off from said judgment the sum of the $10,000 awarded as punitive damages within ten days from the date the remittitur of this court is made the judgment of the trial court; otherwise it is reversed in its entirety. See Co-op Cab Co. v. Arnold, 106 Ga. App. 160 (126 SE2d 689) (1962).

Judgment affirmed with direction.

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

Decided September 27, 1991

Reconsideration denied October 10, 1991

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellant.

Hill & Bleiberg, Robert P. Bleiberg, for appellee.


text:
    A91A1191.
    BLALOCK v. THE STATE.
    (411 SE2d 914)
   Andrews, Judge.

Defendant appeals his conviction of driving under the influence and speeding, contending that the trial court misconstrued OCGA § 40-6-392 (a) (3) and erred in not finding that the officer prevented Blalock from obtaining an independent blood test.

The grant of defendant’s motion in limine concerning his requested blood sample was previously appealed by the State and reversed. State v. Blalock, 197 Ga. App. 71 (397 SE2d 491) (1990). Neither a motion for rehearing nor petition for certiorari was filed by Blalock. The motion in limine was premised on the officer’s failure, at the time of the arrest, to allow Blalock his right to an independent test. An evidentiary hearing was held by the court at which the officer and Blalock testified. After the remand, the trial of the case was by the court without a jury and the only testimony at trial was the officer’s, which was found by the trial court not to be at variance from the motion hearing.

The issues here sought to be appealed have been decided adversely to Blalock by the previous ruling of this court and relitigation of the issue is precluded by res judicata. Ga. Const., Art. VI, Sec. V, Par. I; Lindsey v. State, 227 Ga. 48, 52 (2) (178 SE2d 848) (1970); Albert v. State, 180 Ga. App. 779, 784 (5) (350 SE2d 490) (1986).

Despite Blalock’s contention that new and different trial evidence requires a different conclusion, the trial judge concluded there was none and our review of both records reveals none. Compare Vogel v. State, 196 Ga. App. 514, 515 (1) (396 SE2d 262) (1990).

Judgment affirmed.

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

Decided September 30, 1991

Reconsideration denied October 10, 1991

Ralph J. Hunstein, Jake Arbes, for appellant.

Ralph T. Bowden, Jr., Solicitor, Cassandra J. Cook, Cliff Howard, Assistant Solicitors, for appellee.

       Both the breath test and blood test registered .12 grams.


author: Beasley, Judge.

text:
    A91A0783.
    DEPARTMENT OF HUMAN RESOURCES v. OAKES.
    (411 SE2d 363)
    Decided October 10, 1991.

      Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.
    Lynn K. Oakes, pro se.

   Beasley, Judge.

Appellee, Mr. Lynn Oakes and Vicki Oakes were divorced in 1984. Their divorce decree required appellee to pay $50 per week per child for the support of the parties’ two minor children. The appellee subsequently entered into a consent agreement with appellant, the Department of Human Resources, requiring appellee to pay child support in the amount of $40 per week per child from July 19, 1988, until December 2, 1988, after which he would again pay weekly child support in the amount of $50 per child.

DHR on the relation of Vicki Oakes later instituted the present contempt action against appellee because of his failure to make child-support payments. After a hearing, the trial court entered an order finding appellee to be in contempt of court by reason of being in arrears in child-support payments in the amount of $1,480. The trial court ordered appellee to begin making payments of $50 per week in child-support payments, $19.50 per week per child as a reduced child-support obligation and $11 per week toward the arrearage.

A trial court in a contempt proceeding is without authority to modify previous orders requiring a party to pay child support. Gallit v. Buckley, 240 Ga. 621, 626 (3) (242 SE2d 89) (1978).

Judgment reversed.

Carley, P. J., and Andrews, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1109.
    UNIQUE PAINT COMPANY, INC. v. WM. F. NEWMAN COMPANY, INC.
    (411 SE2d 352)
   Sognier, Chief Judge.

Unique Paint Company, Inc. brought suit against Wm. F. Newman Company, Inc. seeking to recover damages for expenses incurred when six employees of Unique Paint were injured in a vehicular collision allegedly caused by the negligence of a driver employed by Newman. The trial court granted Newman’s motion for partial summary judgment as to all damage claims except the claim for property damages, and Unique Paint appeals.

On appeal, appellant urges this court to overrule or limit existing precedent and follow a foreign case to hold that it is entitled to recover the amount of increase in its workers’ compensation premium which resulted from the collision and the ensuing claims filed by appellant’s employees. We decline, as we find the controlling Georgia decisions to be correct. Moreover, the issue also has been addressed by the Supreme Court, which this court cannot overrule.

In Sanford-Brown Co. v. Patent Scaffolding Co., 199 Ga. 41 (33 SE2d 422) (1945), the Supreme Court held that an increase in the plaintiff employer’s workers’ compensation premium was too remote a consequence to be recovered in a breach of contract claim against the manufacturer of defective scaffolding, the failure of which allegedly caused the plaintiff’s employee’s death. This court extended that rationale in North Ga. EMC v. Thomason &c. Co., 157 Ga. App. 719 (278 SE2d 433) (1981) to a negligence claim. In that case, an employer asserted the same cause of action advanced by appellant in the instant case — a tort claim for increased workers’ compensation insurance premiums resulting from a disability suffered by an employee as a consequence of the negligence of the employee of a third party. This court rejected the claim, holding there existed neither an indemnity right nor a legal duty owed by the defendant to the plaintiff to refrain from injuring the plaintiff’s employee, and relied on Sanford-Brown to find that any such premium increase also was too remote for recovery in tort.

Appellant’s argument that OCGA § 51-2-2 authorizes its claim is similarly without merit because that statute accords an injured party (such as the employees here) a cause of action against the employer of the third party tortfeasor, but does not extend that right to the injured party’s employer. Ireland Elec. Corp. v. Ga. Hwy. Express, 166 Ga. App. 150 (303 SE2d 497) (1983). In addition, as the Ireland court recognized, no cause of action arises under OCGA § 51-1-9 either, as the notion that an employer may recover from a third party for the expenses and loss of services of an employee arising from injuries caused by the negligence of the third party is based on archaic concepts of the servant as chattel and is inconsistent with the modern contractual relationship between employer and employee. Moreover, we note that no right of subrogation exists. Intex Prods. v. Roper Corp., 160 Ga. App. 579, 580 (287 SE2d 610) (1981). Accordingly, we affirm the trial court’s decision.

Decided October 10, 1991.

John P. Partin, for appellant.

Kelly, Denney, Pease & Allison, Ronald W. Self, for appellee.

Judgment affirmed.

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


text:
    A91A1210.
    CITIZENS & SOUTHERN TRUST COMPANY (GEORGIA), N.A. et al. v. JOHNSON.
    (411 SE2d 543)
   Andrews, Judge.

We granted the application for interlocutory review to review the denial of the motion for summary judgment brought by plaintiffs below, Citizens & Southern Trust Company (C & S), Oliver Murray and William Horne in their lawsuit arising out of the following facts.

In Octobery 1984, Johnson bought property from Horne and executed a promissory note to him for one million dollars, payable over ten years. On October 6, 1986, Johnson paid Horne $935,614.29 on the note and executed a second note for $50,000. The second note provided that the entire amount owed would be payable upon demand and stated that “[n]o modification or indulgence by any holder hereof shall be binding unless in writing.” Horne subsequently assigned the note to C & S and Murray.

Demand for payment on the note was made, Johnson refused to pay and C & S, Murray and Horne brought this lawsuit. In his answer to the complaint, Johnson claimed that Horne had forgiven the note simultaneously with its execution on October 8, 1986. More specifically, the answer stated that Horne wanted Johnson to sign the note because of a tax benefit, but that Horne told him that he never intended to collect the debt because of his appreciation of Johnson’s early payment of the prior note. Johnson also filed a counterclaim in which he claimed that the demand for payment was improper and that the lawsuit was filed for purposes of harassment.

C & S, Murray and Horne filed a motion for summary judgment on the note seeking to recover principal and interest, costs of the action and attorney fees. The motion also sought dismissal of Johnson’s counterclaim.

Johnson filed his own affidavit in opposition to the motion and swore that Horne forgave the note. He also filed the affidavit of a tax specialist who swore that because of Johnson’s prepayment, Horne saved more than $50,000 in taxes. Johnson argued that a jury issue existed as to whether Horne’s statements forgiving the debt induced Johnson to execute the note. Johnson also argued that his early payment on the 1984 note and the attendant tax benefit to Horne constituted consideration for the separate, subsequent oral agreement to forgive the note.

It is a well-established rule that oral representations made as inducements to the contract are inadmissible to add to, take from, or vary a written contract. Pepsico Truck Rental v. Eastern Foods, 145 Ga. App. 410 (243 SE2d 662) (1978); OCGA § 24-6-1. “ ‘ “It would be extremely dangerous and inconsistent with those general rules of evidence, by which we proceed in courts of justice, to allow a party, after giving an instrument, in which he says T promise to pay on demand,’ to say by parol evidence, ‘You know I did not mean to pay on demand. . . [Cit.] ‘Evidence that at the time the maker signed the note it was distinctly understood that the maker would not have to pay the note is not permitted to compete with the written contents of the note which fails to contain the alleged stipulations.’ ” Weintraub v. Cobb Bank & Trust Co., 249 Ga. 148, 149 (1) (288 SE2d 553) (1982); see also Wagner v. Howell Enterprises, 184 Ga. App. 394 (361 SE2d 698) (1987). Therefore, with respect to an unambiguous promissory note, “in the absence of fraud, accident or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note. Motz v. National Bank of Ga., 156 Ga. App. 871, 872 (275 SE2d 809) (1981).” Wagner, supra at 394. Here, the promissory note is complete and unambiguous, Johnson does not claim that any fraud, accident or mistake induced him to sign the agreement and parol evidence regarding it was inadmissible. See generally Claussen v. Aetna Cas. &c. Co., 259 Ga. 333 (1) (380 SE2d 686) (1989); see also OCGA § 24-6-4.

Johnson’s argument that the early payments he made to Horne on the first debt constituted consideration for a subsequent, distinct oral agreement to forgive the $50,000 is without merit since there is no evidence that the debt was forgiven subsequent to the execution of the note and, under these facts, such a contemporaneous oral agreement is inadmissible. See generally Cooper v. Mercantile Nat. Bank, 137 Ga. App. 605, 607 (2) (224 SE2d 442) (1976); Llop v. Nat. Bank of Ga., 154 Ga. App. 504 (268 SE2d 777) (1980). Thus, the trial court erred in concluding that an issue of material fact remained with respect to the promissory note since Johnson could not rely upon parol evidence to establish a valid defense to appellants’ prima facie entitlement to judgment as a matter of law. Brooks v. McCorkle, 174 Ga. App. 132 (329 SE2d 214) (1985).

Decided October 10, 1991.

Murray & Merck, Oliver C. Murray, Jr., Vivian D. Hoard, for appellants.

Leroy R. Johnson, Mays & Washington, W. Roy Mays III, for appellee.

Accordingly, the trial court also erred by not granting appellants’ motion for summary judgment on the portions of Johnson’s counterclaim which alleged bad faith in filing the lawsuit. Similarly, the remaining allegations of the counterclain, which claimed that demand for payment on the note was improper, were without merit and it was error to deny appellants’ motion on these claims. See generally Stone v. First Nat. Bank of Atlanta, 159 Ga. App. 812 (2) (285 SE2d 207) (1981). In light of our conclusion that summary judgment was improperly denied to appellants, we remand the case so that the trial court may make a determination on appellants’ claims for interest, costs and attorney fees.

Judgment reversed and case remanded with direction.

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


text:
    A91A1234, A91A1235.
    A91A1236.
    DEANS v. DAIN MANAGEMENT, INC. et al. (two cases) DAIN MANAGEMENT, INC. v. DEANS.
    (411 SE2d 354)
   Cooper, Judge.

Appellant began working for the Environmental Protection Agency (“EPA”) in Atlanta in June 1984. EPA’s offices were housed in two buildings, a five-story building on Courtland Street (hereinafter referred to as the “Courtland” building) and a high-rise office building on Ralph McGill Boulevard (hereinafter referred to as the “Tower” building). Both EPA buildings were managed by Dain Management, Inc. (“Dain”). Appellant’s office was located on the fourth floor of the Tower building; however she made numerous visits to the Courtland building, which was connected to the Tower building on the third and fourth floors by enclosed corridors.

Between February 1984 and August 3, 1984, office partitions made by Open Office Products, Inc. (“Open Office”) were installed on the first, second, third, and fourth floors of the Courtland building. When appellant visited the Courtland building during that period of time, she noticed that an unpleasant odor emanated from the partitions. Within two months after appellant began working for the EPA, she heard people who worked in the Courtland building complaining of eye and throat irritations, which they attributed to the partitions. Between August 15, 1984 and September 10, 1984, tests were conducted on air samples taken from the Tower and Courtland buildings, which concluded that the levels of formaldehyde in both buildings were in excess of the recommended standard for formaldehyde exposure. Also, in 1984, a study by the National Institute of Occupational Safety & Health concluded that the volume of fresh air in the Court-land building was inadequate and the building’s ventilation should be improved.

As a result of employee complaints, the EPA had the partitions removed from the Courtland building. All of the partitions were removed by June 19, 1985. Some of the partitions were sent to a lab for tests, which showed that the partitions were offgassing excessive amounts of formaldehyde and the main source of the formaldehyde was its fiberboard core. The fiberboard core used by Open Office to make the partitions was manufactured by Medford Corporation (“Medford”) and sold under the tradename of “Medite” to Spellman Hardwoods (“Spellman”), which then sold it to Open Office. Medford included the following warning with the sale of Medite: “Medite contains formaldehyde. Formaldehyde may cause health problems such as eye and respiratory irritation and may aggravate respiratory conditions or allergies. Medite should not be used in enclosed areas where formaldehyde could be a problem unless properly sealed.”

The partitions containing the Medite core were replaced with partitions which did not contain the Medite core. In January 1986, appellant was transferred to the Courtland building. Her work area was surrounded by three partitions. In February 1986, appellant began experiencing symptoms similar to those of a sinus infection. Appellant took several days off from work during which time she felt much better, but when she returned to work on February 24, 1986, she began to experience the same symptoms. On March 4, 1986, appellant sought treatment with Dr. Paul Rabinowitz, an allergist who had treated other EPA employees. Appellant told Dr. Rabinowitz during her initial visit that she worked at the EPA and that a source of her problems may be partitions which were releasing formaldehyde. Appellant continued to see Dr. Rabinowitz for several months and on November 13, 1986, Dr. Rabinowitz confirmed that chemicals in appellant’s work environment were causing her allergic reactions. Appellant was subsequently diagnosed as having asthma and an auto-immune system disorder. The medical evidence reflects that both asthma and auto-immune disorders can be caused by formaldehyde sensitivity.

On February 29, 1988, appellant filed a complaint based on theories of negligence and strict liability against Dain, Spellman, Open Office and Medford, alleging that she had suffered permanent injuries as a result of inhaling formaldehyde at her workplace. Appellant subsequently dismissed her action against Spellman, and the remaining defendants moved for summary judgment. The trial court granted Med-ford’s and Open Office’s motions on the grounds that there was a lack of a causal connection between appellant’s injury and the partitions. The trial court also granted Dain’s motion with respect to appellant’s alleged injuries of formaldehyde sensitization and asthma based on the expiration of the statute of limitation. However, the trial court denied Dain’s motion as to appellant’s contention that the formaldehyde exposure caused her to suffer with an auto-immune disorder. The trial court subsequently amended its order to alternatively grant summary judgment to Medford and Open Office based on the statute of limitation.

In Case No. A91A1234, appellant appeals from the trial court’s grant of summary judgment to Dain, Medford and Open Office. In Case No. A91A1235, appellant appeals from the trial court’s amended order, and in Case No. A91A1236, Dain cross-appeals from that part of the trial court’s order which denied Dain’s motion for summary judgment.

Case No. A91A1235

Appellant filed a notice of appeal from the trial court’s first order on August 30, 1990. On August 31, 1990, the trial court entered its second order which amended the first order. Appellant argues that the trial court erred in amending its order after a notice of appeal had been filed from that order. “[T]he filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter, or modify the judgment . . . are without effect. [Cits.]” Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979). Thus, the trial court had no jurisdiction to amend its order and we have no jurisdiction to consider the appeal. Bishop v. Typo-Repo Svcs., 188 Ga. App. 581 (373 SE2d 762) (1988). Accordingly, this appeal is dismissed.

Case Nos. A91A1234 and A91A1236

1. Appellant first contends that the trial court erred in granting summary judgment to Medford and Open Office on the issue of proximate cause. It is undisputed that when appellant began working in the Courtland building in January 1986, the partitions containing the Medite core had been removed and replaced with partitions which were formaldehyde free. However, appellant argues that her exposure to formaldehyde fumes occurred during 1984 and 1985 and sensitized her to the extent that she is unable to tolerate breathing even small amounts of formaldehyde. Medford and Open Office argue that appellant’s alleged formaldehyde sensitization was caused by other sources of formaldehyde in the air in the Tower building. The evidence reflects that the Tower and Courtland buildings had separate heating/ air conditioning and ventilation systems; that formaldehyde fumes are present in cigarette smoke and paper products; that the EPA did not have a “no smoking” policy during 1984 and 1985; and that appellant handled paper products as part of her job. There is also evidence in the record that formaldehyde has a density similar to that of air such that it freely migrates through the air; that formaldehyde will permeate from one room to another just as air does; that tests conducted on air samples from the Tower building over a three week period between August 15, 1984 through September 10, 1984 revealed levels of formaldehyde in the Tower building in excess of the recommended standard for formaldehyde exposure. Dr. Elaine Panitz, an occupational and environmental specialist, testified in her deposition on appellant’s behalf that in her opinion appellant’s formaldehyde sensitization occurred between June 1984 and June 1985 and that appellant began manifesting symptoms of sensitization in June 1985. The trial judge found that there were sufficient other sources of formaldehyde in appellant’s work environment to account for the 1984 formaldehyde readings and that there was a lack of causal connection between the partitions installed in the Courtland building and appellant’s sensitization to formaldehyde while she worked in the Tower building. “On motion for summary judgment, all doubts as to evidence and the benefit of any conflict are to be indulged in favor of the opposing party and construed against the movant. [Cit.] If the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact must be drawn against the movant and in favor of the party opposing the motion. [Cit.]” Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990). While there is evidence that formaldehyde from sources other than the partitions with the Medite core could have caused the elevated levels of formaldehyde in the Tower building, we find that it is also a permissible inference that formaldehyde offgassed from the partitions installed in the Courtland building migrated into the Tower building causing the elevated levels. “The cardinal rule of the summary procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. [Cit.]” Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987). We conclude that an issue of fact was raised as to the causal connection between appellant’s formaldehyde sensitization and the partitions with the Medite core. Therefore, the trial court erred in granting summary judgment to Medford and Open Office.

2. Appellant also contends that the trial court erred in granting partial summary judgment to Dain based on the statute of limitation. Appellant alleges that she suffered three distinct injuries as a result of her exposure to formaldehyde in the workplace: formaldehyde sensitization, asthma, and an auto-immune system disorder. She argues that since she did not receive a medical diagnosis of a formaldehyde-induced problem until November 13, 1986, her action filed on February 29, 1988 was timely. Appellant’s injuries are all based on her exposure to chemicals in the atmosphere and subject to the discovery rule enunciated in King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252) (1981). This court held in King that “ ‘[a] cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.’ [Cit.]” Id. at 320. The trial court applied the discovery rule and concluded that appellant discovered that Dain’s conduct may have been the cause of her allergic-type reaction, including her asthma, on February 24, 1986; therefore, the statute of limitation expired on February 24, 1988. We disagree and reverse. Although appellant may have believed on February 24, 1986, that something in her workplace was causing her recurrent health problems, it is not clear that on that date she associated her problems with the conduct of defendants Dain, Medford and Open Office. Furthermore, any belief that appellant may have had that the office partitions were a source of her problems was erroneous inasmuch as the partitions surrounding her at that time were formaldehyde free. The relevant inquiry for purposes of applying the discovery rule in this case is whether on February 24, 1986, appellant associated her health problems with either the conduct of Dain in failing to adequately ventilate the Tower building in 1984 and 1985, the conduct of Open Office in manufacturing the partition which was installed in the Court-land building in 1984, or the conduct of Medford in manufacturing the Medite core which was the main source of the formaldehyde emitting from the partitions. We do not hold, as appellant argues, that a medical diagnosis is necessary before the statute of limitation begins to run. We hold in accordance with King that under the facts of this case, on February 24, 1986, appellant neither knew, nor through the exercise of reasonable diligence should have known, that her symptoms were the result of having been sensitized to formaldehyde between 1984 and 1985. See Andel v. Getz Svcs., 197 Ga. App. 653 (1) (399 SE2d 226) (1990). Accordingly, we hold that the trial court erred in finding that appellant’s action was filed outside the statute of limitation and in granting summary judgment to Dain. For the foregoing reasons, the trial court correctly denied summary judgment to Dain on appellant’s auto-immune disease, and the judgment appealed from in Dain’s cross-appeal is affirmed.

Decided October 10, 1991.

Middleton & Anderson, Eugene C. Brooks IV, for appellant.

Carter & Ansley, Ben Kingree III, for appellees.

Judgment reversed in Case No. A91A1234. Judgment affirmed in Case No. A91A1236. Appeal dismissed in Case No. A91A1235.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1348.
    MERKA v. THE STATE.
    (411 SE2d 357)
   Sognier, Chief Judge.

Steve A. Merka was indicted with six other persons for violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, forgery, and various other crimes committed in connection with a traffic “ticket-fixing” scheme. Merka was tried jointly with two co-defendants, and in Martin v. State, 189 Ga. App. 483 (376 SE2d 888) (1988), this court reviewed their convictions, which we affirmed in part and reversed in part. The underlying facts are set forth fully in Martin and will not be repeated here. Merka brings this appeal from the trial court’s denial of his extraordinary motion for new trial brought several years after our decision in Martin on the ground of newly discovered evidence.

The newly discovered evidence relied upon by appellant as the ground for his motion consisted of a letter purportedly written by co-defendant Martin from prison to appellant’s trial counsel after the trial. In the letter, Martin stated that because he was advised by his attorney not to take the stand in his own behalf during the trial, he had no opportunity to testify that appellant had never been aware that the signature was not genuine on a document presented to him which was material evidence of the forgery for which appellant was convicted; and that appellant had no knowledge of any wrongdoing in connection with certain other crimes for which he was convicted.

1. Appellant contends the trial court abused its discretion by allowing personal feelings of dislike for Martin to prejudice its decision. This contention, however, is belied by the record. Our examination of the transcript of the hearing on the extraordinary motion for new trial reveals that the trial judge never stated he did not like Martin but only that he did not believe him. In ruling on an extraordináry motion for new trial, “a trial court has a duty to evaluate the credibility of a witness who was an alleged accomplice .... [Cits.]” Dorsey v. State, 187 Ga. App. 725, 728 (3) (371 SE2d 207) (1988). Thus, statements by the trial judge that he would “frankly, have a hard time believing anything Mr. Martin said, under oath and otherwise,” and that he “wouldn’t believe anything [Martin] says on a stack of Bibles up here,” indicate only that the trial court was fulfilling its duty of evaluating Martin’s credibility.

2. In appellant’s remaining four enumerations of error, he contends the trial court erred by finding that the evidence proffered by appellant in support of his motion did not meet the applicable standard for granting a new trial. We do not agree. “The standard for granting a new trial on the basis of newly discovered evidence is well established. Tt is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ [Cits.] All six requirements must be complied with to secure a new trial. [Cits.]” Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980).

We agree with the trial court that the evidence presented fails to meet the Timberlake criteria. Martin’s letter simply reiterates appellant’s defense at trial, which was that appellant was personally unaware of any improprieties or crimes. In Lee v. State, 146 Ga. App. 189, 191-192 (245 SE2d 878) (1978), cited by appellant, the newly discovered evidence corroborating the appellant’s defense was held to be sufficient to meet the criteria for granting a new trial because the corroboration was provided by a hitherto unknown eyewitness to the crime. Conversely, in the case sub judice, appellant was fully aware of Martin’s existence at the time of trial. Indeed, Martin was present at trial and could have, but did not, testify in appellant’s behalf, and there is no guarantee that he would do so if a new trial were granted.

Criterion (4) is not met because the proffered evidence would be merely cumulative of appellant’s testimony at trial, and unlike the situation in Lee, there are no indications that the jury was wavering, thus raising the possibility that the jury would have believed appellant’s version of the facts had it been presented with the new evidence.

Moreover, the new evidence impeaches the trial testimony of a victim, a purpose not permitted under Timberlake. At trial, the person whose name was forged on the document referred to in Martin’s letter testified he had not given any person permission to sign his name and had never heard of appellant or hired him to represent him. In his letter, Martin wrote that he had been authorized by the victim to sign the victim’s name, and that appellant did not know the signature was not actually the victim’s. Thus, contrary to appellant’s contention, regardless of appellant’s intent in presenting Martin’s letter, its sole function would be to impeach the credit of the victim witness.

Decided October 10, 1991.

Steve A. Merka, pro se.

Robert E. Wilson, District Attorney, Nelly F. Withers, Assistant District Attorney, for appellee.

“Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused. [Cit.]” Van Scoik v. State, 142 Ga. App. 341 (235 SE2d 765) (1977). The trial court did not abuse its discretion by denying the extraordinary motion for new trial. Id.

Judgment affirmed.

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


text:
    A91A1360.
    BROWN v. THE STATE.
    (411 SE2d 360)
   Cooper, Judge.

Appellant appeals from his conviction of armed robbery and sentence of life in prison. A jury found appellant guilty of participating in the April 2, 1988, armed robbery of a Big Star grocery store in Clayton County. At the trial, one of appellant’s co-defendants testified that appellant planned the robbery, owned the gun that was used in the robbery, drove the getaway car and shared in the proceeds of the robbery.

1. Appellant first enumerates that the trial court erred in denying his plea in bar in which appellant argued that a plea agreement made in connection with the prosecution of another charge barred the prosecution of the April 1988 robbery. Appellant was indicted and tried for a crime that occurred on March 22, 1988, in Fulton County. At the time of the Fulton County trial, an arrest warrant for the April Clayton County robbery had been issued against appellant. During the Fulton County trial, the Fulton County District Attorney entered into a plea agreement with appellant in which the district attorney represented to appellant and to the court that if appellant pled guilty to one charge of the indictment and accepted a prison sentence of 20 years, the Clayton County charge would be dismissed and appellant would not be prosecuted for that charge. The Fulton County District Attorney asserted that he had the acquiescence of the Clayton County authorities to this agreement. Appellant accepted the plea agreement on these conditions, when, in fact, the Fulton County District Attorney had not consulted with Clayton County and did not obtain the consent of Clayton County to the agreement. Subsequently, the instant prosecution on the Clayton County charge was initiated. This case is controlled by Bryant v. State, 164 Ga. App. 555 (1) (296 SE2d 792) (1982). The Bryant court construed the Georgia Constitution “as limiting the authority and duties of district attorneys to their judicial circuits,” and held that one county’s prosecutor’s agreement with a defendant is not enforceable in another county, but is only enforceable within that prosecutor’s judicial circuit. Id. at 556. Appellant’s reliance on State v. Hanson, 249 Ga. 739 (295 SE2d 297) (1982) is misplaced. Hanson involved a prosecutor’s promise of immunity from prosecution for all charges within his jurisdiction. Appellant’s first enumeration is without merit. While we are concerned with the Fulton County District Attorney’s reprehensible conduct in blatantly misrepresenting the participation of Clayton County authorities, such misrepresentation, if relied upon by appellant, goes to the voluntariness of appellant’s plea in Fulton County, not to the instant Clayton County prosecution.

By our conclusion herein, we do not condone in any way the actions of the Fulton County District Attorney in this case.

2. Appellant next contends that the court erred in allowing the State to introduce evidence of a similar transaction because appellant was not identified as the perpetrator of the similar crime. The State served a notice on appellant that it intended to present evidence of appellant’s participation in another armed robbery of a Big Star grocery store that occurred in DeKalb County on March 20, 1988. Appellant’s co-defendant in the Clayton County case, who was also involved in the DeKalb County robbery, testified that appellant planned the DeKalb County crime and drove the getaway car. A police officer identified appellant as the driver of a vehicle with two other passengers that sped out of the parking lot of the Big Star when the officer attempted to stop the car. Money wrappers from the DeKalb County Big Star were found in a storm drain near appellant’s home. “It is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible. [Cits.] Although a prosecution may fall short of proving a criminal offense, evidence as to certain conduct may nevertheless be admissible in a trial of another offense if the State shows the defendant was the perpetrator of the conduct and the conduct or transaction is similar to or has a logical connection to the offense being tried.” Randolph v. State, 198 Ga. App. 291, 292 (2) (401 SE2d 310) (1991). We have reviewed the evidence presented and we conclude that the above-quoted standard for the admissibility of similar transaction evidence was satisfied and the court did not err in allowing the State to present evidence of the March 1988 DeKalb County Big Star robbery.

Decided October 10, 1991.

William H. Turner, Jr., for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1429.
    PACE v. THE STATE.
    (411 SE2d 361)
   Cooper, Judge.

Defendant, an inmate, appeals his conviction by a jury of obstruction of a correctional officer.

1. In his first enumeration of error, defendant contends that the evidence was insufficient to support his conviction. The trial transcript reflects that Officer Diaz, a correctional officer at the Georgia State Prison in Reidsville, was directed to move defendant from one cell to another cell. When defendant was instructed to pack his belongings, he refused and gave as a reason that he did not want to be moved next to any “sissies.” Defendant was referring to Robert Au-try, an inmate who resided in the cell next to the one where defendant was to be moved. Officer Diaz checked defendant’s inmate sensor sheet to determine if there had been any difficulties between defendant and Autry and found no indication that there had been problems between the two. Officer Diaz testified that if defendant’s sensor sheet had indicated problems between defendant and Autry, then defendant would not have been moved to that cell. Defendant was told several more times to pack his belongings, and each time he refused, giving the same reason. Defendant did not inform Officer Diaz that there had been problems between defendant and Autry or that defendant felt threatened by Autry. When it became clear that defendant was not going to cooperate, Officer Diaz ordered four correctional officers wearing protective gear to forcibly move defendant from the cell. When the officers entered the cell, defendant got up on his bed and violently resisted the officers by swinging and kicking wildly at the officers. Defendant hit one of the officers and grabbed his shirt, tearing off the buttons. Viewed in the light most favorable to the jury verdict, the evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of obstruction of a correctional officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Holloway v. State, 194 Ga. App. 525 (391 SE2d 123) (1990).

Decided October 10, 1991.

Joel E. Williams, Jr., for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

2. In his second enumeration of error, defendant contends that the trial court erred in failing to give his five requests to charge on justification and that the trial court’s charge on the offense of obstruction of an officer was incorrect. The trial court charged the jury that they would be authorized to find defendant not guilty if defendant’s use of force against the correctional officer was for the sole purpose of preventing the unlawful use of force against defendant. “ ‘ “A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” ’ [Cit.]” Fancher v. State, 190 Ga. App. 438, 440 (2) (378 SE2d 923) (1989). The court’s charge adequately instructed the jury on the circumstances which would justify defendant’s use of force, and we find no error with the failure to give the charges defendant requested.

The trial court also charged the jury that “a person commits the offense of obstructing or hindering a law enforcement officer when he knowingly and willfully resists, obstructs, or opposes any law enforcement officer, prison guard, or correctional officer who is in the lawful discharge of his official duties by offering or doing violence to the person. ...” Defendant contends that in a later portion of the court’s charge on the offense of obstruction of a correctional officer, the court left out the words “by offering or doing violence.” “ ‘ “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. (Cits.) . . .” [Cits.]’ ” Johnson v. State, 187 Ga. App. 803, 804 (3) (371 SE2d 419) (1988). Our review of the charge as a whole reveals that the trial court charged the jury adequately on the offense of obstruction of a correctional officer.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0754.
    JABALEY v. MITCHELL.
    (411 SE2d 454)
   Beasley, Judge.

The issue is whether or not a defendant’s plea of nolo contendere to a criminal charge of simple battery, OCGA § 16-5-23.1, is admissible for impeachment of the defendant in the subsequent trial of the civil suit stemming from the battery.

Mitchell sued Jabaley to recover actual and punitive damages for physical injuries Mitchell sustained and alleged that Jabaley “intentionally, willfully and without any cause whatsoever” hit and kicked Mitchell, causing injury to his left eye, chest and rib cage. The incident occurred while Mitchell was helping a friend move her business trailer off property leased from Jabaley. An altercation ensued when Jabaley attempted to prevent removal of the trailer until he was paid rent. At trial, Jabaley claimed that the physical contact with Mitchell was justified.

The court, over Jabaley’s objection, permitted Mitchell to introduce, for “impeachment purposes,” a certified copy of Jabaley’s prior plea of nolo contendere to simple battery. The jury returned a verdict in favor of Mitchell for $5,000 compensatory damages and $5,000 punitive damages. Judgment was entered on the verdict and a new trial was denied.

This Court, in a 5-4 decision, has held that a witness in a civil action may be impeached by the witness’ prior plea of nolo contendere to a felony or other crime involving moral turpitude. Tilley v. Page, 181 Ga. App. 98, 99 (4) (351 SE2d 464) (1986). See also State v. Rocco, 259 Ga. 463 (384 SE2d 183) (1989), discussing Tilley. Such exception to the prohibition contained in OCGA § 17-7-95 (c) has not been extended to include impeachment by a prior plea of nolo contendere to a crime other than a felony and not involving moral turpitude. Simple battery, a misdemeanor, see OCGA § 16-5-23 (b), has been recognized to be a crime not involving moral turpitude. See Miller v. State, 171 Ga. App. 568 (320 SE2d 635) (1984); In re Long, 153 Ga. App. 883, 884 (c) (267 SE2d 481) (1980). See generally Lewis v. State, 243 Ga. 443 (254 SE2d 830) (1979); Pender v. Witcher, 194 Ga. App. 72 (2) (389 SE2d 560) (1989). The trial court was not authorized under authority of Tilley v. Page, supra, to admit evidence of Jabaley’s plea for impeachment or any other purpose. OCGA § 17-7-95 (c); Beal v. Braunecker, 185 Ga. App. 429, 431 (2) (364 SE2d 308) (1987).

Defendant Jabaley is entitled to a new trial.

Judgment reversed.

Birdsong, P. J., and Parley, P. J., concur.

Decided October 11, 1991.

Wood, Odom & Edge, Gus L. Wood III, for appellant.

Baldwin & Mallory, A. Quillian Baldwin, Jr., for appellee.


author: Pope, Judge.

text:
    A91A0788.
    WAL-MART STORES, INC. v. HESTER.
    (411 SE2d 507)
   Pope, Judge.

In this trip and fall case, appellant/defendant Wal-Mart Stores, Inc., appeals from the judgment entered on the jury verdict in favor of plaintiff/appellee Billy Hester and from the trial court’s denial of its motion for judgment notwithstanding the verdict or alternatively for new trial. The evidence presented at trial showed that on June 17, 1986, Hester went to Wal-Mart with a friend and while he was there decided to look at ceiling fans. Hester testified that while he was looking for ceiling fans at eye level, he tripped over a box containing trash bags in one of the aisles.

The trial court found that the evidence was sufficient to charge the jury on the distraction doctrine, and refused to direct a verdict for Wal-Mart. Wal-Mart argues that it was error for the court to deny its motions and charge the jury on the distraction doctrine because if Hester was distracted while in the store, the distraction was self-induced, and therefore, the distraction doctrine is not applicable to this case.

The seminal case on the distraction doctrine in this state is Redding v. Sinclair Refining Co., 105 Ga. App. 375 (124 SE2d 688) (1962). In that case, this court held that where “the plaintiff’s attention is distracted by a natural and usual cause” a lesser degree of prudence may be sufficient to constitute ordinary care. Id. at 378. The distraction doctrine, however, is not without limitation. “Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” Id. at 379.

In this case, Hester testified that at the time he fell he was “looking at the back of the store . . . [at] eye level, looking for the ceiling fans.” Thus, Hester’s own testimony shows that there was no distraction; he simply was not looking where he was walking at the time he fell.

This case is controlled by the plain view doctrine. “[0]ne is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries. [Cits.]” Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 474-475 (249 SE2d 276) (1978). Merchants customarily place merchandise in aisles, for example, as special displays or when stocking shelves. Hester testified that he knew merchants put merchandise on the floor while they stocked shelves and that he had seen boxes on the floor in other Wal-Mart stores.

Decided September 19, 1991

Reconsideration denied October 15, 1991

Forbes & Bowman, Morton G. Forbes, Ranitz, Mahoney, Forbes & Coolidge, Birney 0. Bull, for appellant.

Charles W. Cook, Wilmer L. Salter, Jr., for appellee.

“The proof offered clearly puts this case within the line of cases involving the ‘plain view’ doctrine and effectively eliminates any ‘distraction’ theory.” (Citations and punctuation omitted.) Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 241 (396 SE2d 42) (1990). Accordingly, Hester failed to prove a prima facie case, and the trial court erred in denying Wal-Mart’s motions for directed verdict and for judgment notwithstanding the verdict.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1004.
    CARR v. THE STATE.
    (411 SE2d 913)
    Decided September 6, 1991
    Reconsideration denied October 15, 1991.

      Hal T. Peel, for appellant.
   Cooper, Judge.

Appellant was convicted by a jury of selling cocaine in violation of OCGA § 16-13-30 (b), and because it was his second conviction under OCGA § 16-13-30 (b), he was sentenced to life imprisonment pursuant to OCGA § 16-13-30 (d). Appellant’s sole enumeration of error is that the mandatory life sentencing provisions of OCGA § 16-13-30 (d) are unconstitutional in that they violate the Eighth and Fourteenth amendments. Despite appellant’s attempt to distinguish his case, we find that his case is controlled by Grant v. State, 258 Ga. 299 (2) (368 SE2d 737) (1988), in which the Supreme Court of Georgia held that OCGA § 16-13-30 (d) did not constitute cruel and unusual punishment under the Eighth and Fourteenth amendments.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.


text:
    A91A1008.
    THOMPSON v. LONG.
    (411 SE2d 322)
   Pope, Judge.

In this medical malpractice case, plaintiff Edna T. Thompson appeals the trial court’s grant of defendant’s motion to dismiss. On July 25, 1988, plaintiff delivered a stillborn child during an emergency Cesarean section operation performed by defendant Crawford W. Long, M.D. On July 25, 1990, the day on which the statute of limitation would expire for any cause of action plaintiff might have against the defendant arising from the stillborn death of her child, plaintiff filed a pro se complaint against defendant alleging professional malpractice. Paragraph 13 of the complaint stated in pertinent part: “An Affidavit specifically setting forth at least one negligent act or omission claimed to exist and the factual basis for such claim is attached hereto and made a part of this petition by reference and is listed as ‘Exhibit A.’ ” Plaintiff, however, failed to attach the described affidavit.

OCGA § 9-11-9.1 mandates that an affidavit of an expert competent to testify about any alleged malpractice accompany a charge of professional malpractice. Except under certain circumstances specifically set forth in the statute, subsection (a) of OCGA § 9-11-9.1 requires that the expert’s affidavit be contemporaneously filed with the complaint. It is undisputed that at the time plaintiff filed her complaint, she did not have the requisite affidavit.

On August 24, 1990, defendant filed his answer to the complaint and asserted as a defense that plaintiff had failed to comply with the requirements of OCGA § 9-11-9.1. Seven days later, defendant filed a motion to dismiss for failure to comply with OCGA § 9-11-9.1.

Plaintiff subsequently obtained counsel to represent her, who filed an amendment to the complaint to omit the sentence from paragraph 13 of the complaint quoted above and substitute in lieu thereof the following: “The Plaintiff does hereby show that this Complaint is filed within ten (10) days of the expiration of the applicable statute of limitations and because of such time constraints, the Plaintiff has not been able to obtain the affidavit of an expert. Such an affidavit will be attached by amendment to the Complaint.” The purpose of that amendment was to bring this case within subsection (b) of OCGA § 9-11-9.1, which provides: “The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” Within the 45-day period provided by subsection (b), plaintiff filed a supplement to the complaint attaching the requisite affidavit. In support of her motion to amend her complaint and in opposition to defendant’s motion to dismiss, plaintiff filed an affidavit in which she averred that at the time she filed her complaint, she thought she had to allege an affidavit was attached to the complaint, but that she would be able to obtain it and file it afterwards.

The trial court granted the defendant’s motion to dismiss finding that the protection afforded by OCGA § 9-11-9.1 (b) must be specifically invoked by allegation in the complaint. The trial court further found that this case is governed by OCGA § 9-11-9.1 (e) , which provides that if the plaintiff fails to file the requisite affidavit and the defendant raises that defect in his initial responsive pleading, the plaintiff may not cure the defect by amendment unless the court determines that the plaintiff had the requisite affidavit prior to filing the complaint.

1. Subsection (e) specifically excepts cases governed by subsection (b), as plaintiff contends this one is, from its edicts. The real issue in this case is whether the plaintiff should be allowed to amend her complaint to invoke the protections of subsection (b), although she failed to allege that she was relying on that subsection when she originally filed her complaint. We hold that under the circumstances of this case, the plaintiff can amend her complaint.

It is undisputed that plaintiff filed her cause of action within ten days of the expiration of the applicable statute of limitation for her claim, and therefore, she would clearly be entitled to invoke the protections of OCGA § 9-11-9.1 (b) if she had made the proper allegations in her complaint when it was first filed. OCGA § 9-11-8 (f) requires that “[a]ll pleadings ... be so construed as to do substantial justice.” See Glaser v. Meck, 258 Ga. 468 (3) (369 SE2d 912) (1988). This court has repeatedly held that the spirit and intent of the Civil Practice Act require that pleadings are to be liberally construed in favor of the pleader. Mills v. Bing, 181 Ga. App. 475, 476 (352 SE2d 798) (1987); Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561 (239 SE2d 217) (1977). Pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers. Evans v. City of Atlanta, 189 Ga. App. 566, 567 (377 SE2d 31) (1988); see Haines v. Kerner, 404 U. S. 519 (92 SC 594, 30 LE2d 652) (1972), Dillingham v. Doctors Clinic, 236 Ga. 302 (223 SE2d 625) (1976). As our Supreme Court noted in St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 154 (377 SE2d 847) (1989), the language of OCGA § 9-11-9.1 (b) “shows a clear legislative intent to give a plaintiff extra time to secure an affidavit when the statute of limitation is about to expire.”

To require a pro se plaintiff to include certain “magic language” in his complaint, or suffer dismissal, places pleading formalities above the legislative purpose behind this statute. At the time plaintiff filed her complaint, defendant and his counsel were put on notice at a minimum that plaintiff was asserting a malpractice claim against defendant and her claim was being asserted within ten days of expiration of the applicable statute of limitation which would generally allow plaintiff to invoke the exception provided by subsection (b). Plaintiff filed the requisite affidavit within the 45-day period provided by subsection (b). Thus, defendant is in no worse position than if the plaintiff had understood the language of OCGA § 9-11-9.1 and originally inserted the language required by subsection (b) of that statute in the complaint. Accordingly, the trial court should have denied defendant’s motion to dismiss.

2. Defendant further argues that the affidavit filed was not legally sufficient. In its original order granting defendant’s motion to dismiss, the trial court found that the legal insufficiency of the affidavit provided an alternative basis for granting defendant’s motion. Upon plaintiff’s motion for reconsideration of that order, however, the trial court vacated that portion of the order finding, inter alia, that the defendant did not raise this issue. Nevertheless defendant urges us to affirm the trial court’s order of dismissal on the basis of legal insufficiency. Because this issue was not raised at the trial court, it presents nothing for appellate review. St. Joseph’s Hosp., supra at (2).

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, defendant argues that this opinion “violates” the Georgia Supreme Court’s decision in Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991). The affidavit in the Cheeley case, however, was clearly governed by subsection (a) of OCGA § 9-11-9.1, not subsection (b) as in this case. The affidavit in this case was filed within the time period allowed by subsection (b).

Defendant also urges us again to consider the sufficiency of the affidavit filed by the plaintiff, an issue which the trial court noted was not raised by the defendant at the trial level. This court is a court for the correction of errors and for that reason enumerations of error which raise questions for the first time on appeal present nothing for decision by this court. St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 155 (377 SE2d 847) (1989). Furthermore, unlike the trial court in our ear-Her decision on which defendant relies, Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407 (401 SE2d 602) (1991), the trial court in this case has not had an opportunity to consider whether the plaintiff had the requisite affidavit within the additional 45-day period provided by subsection (b) or if the plaintiff’s failure to file a satisfactory affidavit was the result of mistake.

Decided September 19, 1991

Reconsideration denied October 15, 1991

McGee & Oxford, Andrew J. Hinton, Jr., for appellant.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., for appellee.

Motion for reconsideration denied.