text:
    A11A0419.
    NOORANI v. SUGARLOAF MILLS LIMITED PARTNERSHIP OF GEORGIA.
    (706 SE2d 750)
   Adams, Judge.

Defendant/appellant Amir Noorani filed a notice of appeal on February 24, 2010 seeking review of an order denying his motion to dismiss for lack of jurisdiction entered on July 22, 2009, a judgment and final order entered on February 16, 2010 and an order regarding discovery sanctions entered on December 7, 2006. That appeal was docketed in this Court as Case No. A10A2098 on July 1, 2010 and Noorani filed his brief on July 21, 2010.

On June 11, 2010, Noorani filed a motion to extend the time to file the trial transcript, and the trial court granted the motion on June 14, 2010. On June 18, 2010, plaintiff/appellee Sugarloaf Mills Limited Partnership of Georgia d/b/a Discover Mills (hereinafter Discover Mills) filed a response in opposition to the motion to extend time, arguing that it was not timely filed, and moved to dismiss Noorani’s appeal on the basis that Noorani had unreasonably delayed the filing of the transcript. See OCGA §§ 5-6-41, 5-6-42 and 5-6-48 (c).

On August 10, 2010, following a hearing on August 2, 2010, the trial court entered an order vacating its order extending the time for filing the transcript, finding that the motion requesting the extension was untimely and thus the order granting the motion was “nugatory and void.” The court then granted Discover Mills’ motion to dismiss Noorani’s appeal, finding that his delay in causing the transcript to be filed with the trial court clerk was unreasonable, inexcusable and caused by his own inaction. On August 19, 2010, Noorani filed the current appeal from that order, which has been docketed in this Court as Case No. A11A0419.

On appeal, Noorani contends, inter alia, that the trial court was without jurisdiction to dismiss his original appeal in Case No. A10A2098, which was docketed in this Court prior to the entry of the trial court’s dismissal order. We agree and reverse.

Court of Appeals Rule 20 provides the starting point for our analysis. That rule provides that the appellee is deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript or transmittal of the record “unless objection thereto was made and ruled upon in the trial court prior to the transmittal and such order is appealed as provided by law.” (Emphasis supplied.) In Turner v. Taylor, 179 Ga. App. 574 (1) (a) (346 SE2d 920) (1986), we concluded that the effect of this language, which at that time was contained in Rule 47 of this Court, was to relieve the trial court of its jurisdiction to dismiss an appeal after the record had been transmitted to this Court, and held that an order entered after the case was docketed in this Court dismissing the case for failure to pay costs was a nullity. Id. at 575 (a) (1). We have since applied that holding on several occasions. See, e.g., Hadavi v. Palmer, 260 Ga. App. 509, 512, n. 5 (580 SE2d 291) (2003) (trial court retains jurisdiction to dismiss an appeal based on untimely filing of transcript until the record is transmitted to this Court); Lipsteuer u. CSX Transp., 236 Ga. App. 806, n. 1 (513 SE2d 532) (1999) (because appellee failed to move for and obtain an order of dismissal prior to the transmittal of the record to this Court, any order by the trial court dismissing the notice of appeal is a nullity); Copeland v. Continental Kewitt, 218 Ga. App. 305 (1) (461 SE2d 277) (1995) (“we conclude that once the case was docketed in this court, the trial court lost its jurisdiction to act on the motion [to dismiss the appeal]”). Cf. Ovestco Corp. v. Bowen, 216 Ga. App. 121 (453 SE2d 94) (1994) (per curiam opinion distinguishes Turner on the basis that “it is evident from appellants’ actions . . . that they sought to avoid the trial court’s ruling on the motion” but both the special concurrence and the dissent reiterate that the trial court lost jurisdiction to dismiss the appeal once the record was transmitted to this Court).

Decided March 2, 2011.

Mary Trachian-Bradley, for appellant.

Arnall, Golden & Gregory, James A. Gober, Edward A. Marshall, for appellee.

This issue has also been addressed by our Supreme Court. In Strese v. Strese, 237 Ga. 334 (227 SE2d 749) (1976), that Court, relying on its Rule 11 (c) (now Rule 74), which is identical to this Court’s rule, found appellee’s contention that there had been an unreasonable delay in filing the transcript to be waived because the trial court did not rule on the motion to dismiss until two days after the transcript had been transmitted to that Court. Id.

Discover Mills, however, cites the more recent case of Pioneer Security &c. v. Hyatt Corp., 295 Ga. App. 261 (671 SE2d 266) (2008), for authority that this Court will review on the merits an order by the trial court dismissing an appeal that had already been docketed at the time the dismissal order was entered. Although one of the issues in Pioneer concerned whether the trial court retained jurisdiction after the case was docketed in this Court to decide certain issues regarding the record and transcript, it does not appear that the issue of the trial court’s jurisdiction to enter a dismissal order once the record was transmitted to this Court was raised or ruled upon. However, because it does appear that the original appeal in that case had been docketed in this Court before the trial court entered an order dismissing the case, we hereby disapprove Pioneer to the extent that it can be read to set forth a holding contrary to our prior precedent, including Turner and like cases.

Based on the foregoing, we agree with Noorani that the trial court’s order dismissing his original appeal is a nullity and must be reversed.

Judgment reversed.

Ellington, C. J., Smith, P. J., Barnes, P J., Miller, P. J., Phipps, P J., Andrews, Mikell, Doyle, Blackwell, Dillard and McFadden, JJ., concur.

       The appeal in Case No. A10A2098 is pending in this Court. We have denied Noorani’s motion to consolidate these appeals.

       We noted in Turner that the prior version of Rule 47, under which several cases cited by Discover Mills were decided, required only that objections to the filing of the transcript or the record had to be made in the trial court prior to docketing in this Court. Turner, 179 Ga. App. at 574-575 (1) (a).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A09A1005.
    MILLER v. THE STATE.
    (707 SE2d 135)
   Andrews, Judge.

In Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010), the Supreme Court reversed this Court’s opinion in State v. Miller, 300 Ga. App. 55 (684 SE2d 80) (2009). The Supreme Court held that the trial court correctly granted Ashaunte Miller’s motion to suppress and reversed our judgment to the contrary. Accordingly, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is affirmed.

Decided March 3, 2011.

Larry Chisolm, District Attorney, Christine S. Barker, Assistant District Attorney, for appellant.

Michael L. Edwards, for appellee.

Judgment affirmed.

Barnes, E J., and Miller, P. J., concur.


text:
    A10A1869.
    ANDRADE et al. v. GRADY MEMORIAL HOSPITAL CORPORATION.
    (707 SE2d 118)
   Andrews, Judge.

Reina Andrade and Anabel Quintanilla appeal from the trial court’s order dismissing their suit against Grady Memorial Hospital Corporation over Grady’s closure of the outpatient dialysis clinic where they were patients. For the following reasons, we affirm.

After Grady notified Andrade and Quintanilla that it intended to close the clinic where they received three to four years of free outpatient dialysis treatment, they sued Grady on various grounds. The complaint alleged that Andrade and Quintanilla are indigent immigrants who are uninsured, cannot afford to pay for dialysis treatment, and need the free treatment to stay alive. The amended version of the complaint at issue did not allege that Grady stopped providing Andrade and Quintanilla with free dialysis treatment after the clinic closed. Rather it alleged that, after Grady notified them in early August 2009 of the coming closure and then closed the clinic near the end of September 2009, Grady continued to provide them with free dialysis treatment pursuant to a contract between Grady and another dialysis provider. The complaint alleged that the contract provided for continued free treatment for one year after the closure, but that Grady threatened to stop paying for their treatment about three months after it closed the clinic. Based on these allegations, Andrade and Quintanilla claimed: (1) that Grady’s closure of the clinic threatened to deprive them of necessary dialysis treatment and was state action which violated provisions of the Georgia Constitution prohibiting deprivation of life without due process of law; (2) that Grady threatened to breach the contract to pay for the other provider to give them a year of free dialysis treatment after the clinic closed, and that they are entitled to breach of contract damages as third-party beneficiaries to the contract; and (3) that Grady wrongfully abandoned them as dialysis patients. The suit also sought injunctive relief to prohibit Grady from abandoning treatment, and sought certification as a class action brought in the name of similarly situated persons.

The trial court granted Grady’s motion pursuant to OCGA § 9-11-12 (b) (6) to dismiss the suit for failure to state a claim.

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525 (668 SE2d 723) (2008). Applying these standards, we find no merit to Andrade’s and Quintanilla’s claims that the trial court erred by dismissing the suit.

1. The complaint failed to state a claim for violation of the due process clause of the Georgia Constitution of 1983 (Article I, Section I, Paragraph I) which provides that, “No person shall be deprived of life, liberty, or property except by due process of law.” We need not address Grady’s contentions that this claim fails because Andrade and Quintanilla lack standing in the absence of an allegation that they are Georgia citizens, and because closing the clinic was not governmental or state action of a type regulated by the due process clause. See Reinertsen v. Porter, 242 Ga. 624, 627 (250 SE2d 475) (1978); Dept, of Human Resources v. Northeast Ga. Primary Care, 228 Ga. App. 130,131-133 (491 SE2d 201) (1997). Assuming, without deciding, that there was standing and that the closing was governmental or state action, Andrade and Quintanilla had no constitutional right to the dialysis treatment.

Andrade and Quintanilla allege that closing the clinic where they received life-sustaining dialysis treatment free of charge was state action which placed their lives in jeopardy in violation of the substantive component of the Georgia Constitution’s due process clause. Although the substantive component of the due process clause protects an interest in life, it “imposes upon the State affirmative duties of care and protection (including medical care) with respect to particular individuals . . . when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself. ...” (Punctuation omitted.) Murphy u. Bajjani, 282 Ga. 197, 202 (647 SE2d 54) (2007) (quoting DeShaney v. Winnebago County Dept, of Social Svcs., 489 U. S. 189, 198-200 (109 SC 998, 103 LE2d 249) (1989)). For example, substantive due process “requires the State to provide adequate medical care to involuntarily-committed mental patients, and to suspects in police custody who were injured while being apprehended.” (Citations and punctuation omitted.) Murphy, 282 Ga. at 202. By contrast, even if Andrade and Quintanilla depended for their lives upon the free dialysis treatment they voluntarily received from Grady for several years, they were not forced by any state-imposed restriction to become dependent, and they acquired no constitutional right to continue to receive the treatment. DeShaney, 489 U. S. at 196-197.

2. The complaint failed to state a claim that Grady, acting through its medical provider agents, violated a duty of care not to wrongfully abandon the medical treatment it provided to Andrade and Quintanilla. An allegation that a patient’s medical treatment was abandoned at a critical stage because the medical treatment provider either failed to give reasonable notice or failed to arrange for another competent provider to continue treatment is a claim for medical negligence. King v. Zakaria, 280 Ga. App. 570, 574 (634 SE2d 444) (2006). Essential to this claim is proof that Andrade and Quintanilla suffered actual injury as a result of wrongful abandonment of treatment. Meeks v. Coan, 165 Ga. App. 731, 733 (302 SE2d 418) (1983). The complaint did not allege that treatment was discontinued; rather the complaint alleged that, after Grady closed the clinic, Grady continued to provide Andrade and Quintanilla with free dialysis treatment pursuant to a contract between Grady and another dialysis provider. Andrade and Quintanilla essentially concede this point in their appellate brief arguing that Grady’s “conduct to date holds it in anticipatory breach of their duty of care.” The complaint failed to state a claim because it failed to allege a breach of the duty of care requiring that Grady not wrongfully abandon medical treatment or any injury flowing from such breach.

3. The complaint also failed to state a claim that Andrade and Quintanilla were entitled as third-party beneficiaries to sue for breach of the contract between Grady and another medical provider to provide free dialysis treatment for one year after the Grady clinic closed. In addressing this claim, the trial court properly considered the subject contract between Grady and Fresenius Medical Services, which Grady attached as an exhibit to its answer to the complaint. Shreve v. World Championship Wrestling, 216 Ga. App. 387, 388 (454 SE2d 555) (1995).

The contract, entitled “Outpatient Dialysis Agreement,” was effective September 1, 2009 (about a month prior to the date the complaint alleged that Grady closed its outpatient dialysis clinic) and covered a term of one year from the effective date. The contract provided in relevant part that “[Grady] has, at present, and will have, from time to time, in-patients who have End Stage Renal Disease (‘ESRD Patients’),” and that “[Grady] desires to discharge some ESRD Patients who still require ongoing chronic dialysis treatments.” The contract referenced various outpatient dialysis centers established by Fresenius where Grady desired to arrange for “ESRD Patients” to have the option to receive outpatient dialysis services, and Fresenius agreed to provide outpatient dialysis services to “ESRD Patients.” Under the terms of the contract, Grady and Fresenius agreed to

mutually cooperate to offer continuing outpatient dialysis treatment services to all ESRD Patients requiring outpatient dialysis treatment upon ESRD Patients’ discharge from [Grady]. For all ESRD Patients who are ultimately placed at a Center, [Fresenius] shall bill [Grady] and [Grady] shall pay for such treatment for these patients in accordance with this Agreement.

Decided March 3, 2011.

Lindsay R. M. Jones, for appellants.

Alston & Bird, Bernard Taylor, Sean A. Simmons, for appellee.

The general rule, as set forth in OCGA § 9-2-20 (a), is that an action on a contract “shall be brought in the name of the party in whom the legal interest in the contract is vested. ...” An exception to the general rule is set forth in OCGA § 9-2-20 (b), which provides that “The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” For a third party to have standing under OCGA § 9-2-20 (b) to bring an action on a contract between other parties, “it must appear clearly on the face of the contract that it was intended for the benefit of the third party.” Crisp Regional Hosp. v. Oliver, 275 Ga. App. 578, 583 (621 SE2d 554) (2005); Miree v. United States, 242 Ga. 126, 135 (249 SE2d 573) (1978). “The mere fact that [the third party] would benefit from performance of the agreement is not alone sufficient.” Id. at 135. The subject contract does not clearly show on its face that it was intended for the benefit of Andrade and Quinta-nilla. When Grady and Fresenius entered into the contract effective September 1, 2009, both Andrade and Quintanilla, as alleged in their complaint, had End Stage Renal Disease and had been outpatients at the Grady dialysis clinic for years. The contract makes no reference to clinic outpatients existing on the contract’s effective date. Rather, the contract refers to “ESRD Patients” defined as present and future Grady in-patients with End Stage Renal Disease whom Grady discharges after the contract becomes effective. Even though An-drade and Quintanilla alleged in their complaint that, on the effective date of the contract, they were existing clinic outpatients who benefitted by receiving free dialysis treatment pursuant to the contract, the contract plainly shows that there was no intent to confer third-party beneficiary status on existing clinic outpatients.

4. Because the underlying claims in the complaint were correctly dismissed, as set forth in Divisions 1, 2, and 3, supra, the trial court also correctly dismissed: (1) the associated claim for injunctive relief, and (2) the claim for class certification, as failing to state a basis upon which the requested relief could be granted. Turner v. Amsouth Mtg. Co., 212 Ga. App. 555 (442 SE2d 468) (1994); Dryvit Systems v. Stein, 256 Ga. App. 327, 329 (568 SE2d 569) (2002).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       The complaint, which states that Andrade and Quintanilla are immigrants from Honduras and Mexico, respectively, but does not make clear their immigration status, may be construed to allege that they are legal or illegal resident aliens with the right to bring the subject action. See Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 192 (429 SE2d 671) (1993); OCGA § 1-2-11. Grady did not challenge the trial court’s jurisdiction in this case.

       Andrade and Quintanilla contend that Grady acted as the agent of the Fulton-DeKalb Hospital Authority when it closed the outpatient clinic and that this was governmental or state action regulated by the due process clause.

       Although the complaint also asserted that the alleged abandonment was an intentional tort by which Grady intentionally inflicted emotional distress, Andrade and Quintanilla have abandoned this claim by failing to enumerate error or to address any argument with respect to the dismissal of this claim.

       Although the complaint also alleged that Andrade and Quintanilla were third-party beneficiaries to another contract between Grady and the Fulton-DeKalb Hospital Authority, no error was asserted with respect to the trial court’s dismissal of this claim.


author: Dillard, Judge.

text:
    A10A1937.
    WALKER v. THE STATE.
    (707 SE2d 122)
   Dillard, Judge.

Clyde Walker, Jr., appeals his convictions on four counts of aggravated child molestation and three counts of child molestation. On appeal, he contends that the trial court erred by barring certain evidence under the Rape Shield Statute, preventing defense counsel from impeaching a State witness and commenting on the veracity of this witness, allowing the State to introduce hearsay testimony, and instructing the jury to return a partial verdict. Finding no error, we affirm Walker’s convictions.

Viewed in the light most favorable to the verdict, the evidence shows that Walker is the step-grandfather to the victim, S. T. S. T. was molested between the ages of seven and eight, and she was nine years old at the time of trial. She was shuffled between family members after her mother entered a 30-day rehabilitation program but then failed to return for her. S. T. first lived with an aunt and then moved in with Walker and his wife, S. T.’s maternal grandmother. The victim’s second day in the Walker household marked the first instance of molestation.

The aunt took S. T. back into her care after the Walkers suggested sending her to live with a relative out of state, and it was at that point S. T. revealed what had transpired in Walker’s home when she and Walker were alone together—i.e., that Walker had showered with S. T, had forced her to orally sodomize him, had orally sodomized her, and had attempted sexual intercourse with her. Additionally, S. T. graphically testified that Walker sometimes ejaculated on her bed sheets at night, and this story was corroborated by tests that revealed numerous instances of seminal fluid containing Walker’s DNA on S. T.’s bed sheets. After hearing the foregoing evidence, the jury found Walker guilty of the crimes charged. This appeal follows.

1. Walker first contends that the trial court violated his Sixth Amendment right of confrontation by barring evidence under the Rape Shield Statute that S. T. (1) saw sexually explicit photographs of her mother, (2) overheard a conversation about the taste of semen, and (3) made a prior false allegation of molestation. We address Walker’s claims in turn, finding no error or violation of his Sixth Amendment right to confrontation.

(a) Walker sought to present evidence that S. T. possessed pornographic photographs of her mother and had overheard a sexually explicit telephone conversation. According to Walker, the sole purpose of this evidence was to demonstrate the extent of S. T.’s knowledge about sex and “to keep the jury from reaching the unwarranted conclusion that the only possible explanation for [this] knowledge was that she had been exposed to such things” by Walker. The trial court allowed a proffer on both matters outside the jury’s presence.

As to the photographs, Walker presented testimony that S. T.’s backpack contained an envelope of ordinary family photographs along with a handful of sexually explicit photographs of S. T.’s mother engaging in oral sex with an unidentified man and rubbing her genitals against his. But there was no testimony that S. T. had ever been observed looking at the photographs or that she had placed the envelope in her backpack. S. T.’s older sister did, however, testify that S. T. told her she had “nasty pictures of her mom” (depicting her mother naked on a bed). At the conclusion of this testimony, Walker sought a ruling from the trial court permitting the introduction of all photographs into evidence, as well as permission to question S. T. on the photographs because of their similarity to her allegations. The State vehemently objected to showing the victim pornographic photographs of her mother, arguing that the photographs depicted generic sex acts that were not factually similar to S. T.’s numerous and detailed allegations. The trial court agreed and ruled that the evidence was inadmissible.

As to the sexually explicit conversation, Walker proffered evidence that the victim was sitting within three feet of her mother during a telephone conversation in which the mother described the taste of semen. Walker wished to present the testimony of the person to whom the mother was speaking and that of a great-aunt who witnessed the incident. However, there was no evidence that S. T.’s mother also discussed the appearance of semen, something S. T. could also describe in detail. And after hearing this evidence, the trial court ruled that Walker could not question S. T. about this incident because there was no proof that S. T. actually heard or, at the age of seven, understood the subject matter involved in the conversation, which occurred up to a year prior to her allegations being made.

Regarding both the sexually explicit photographs and conversation, we agree with the trial court’s conclusion and find no error in its decision to bar this evidence from being introduced at trial. Indeed, in the absence of a showing of relevance, evidence of a child’s exposure to sexually explicit material is clearly inadmissible. In this respect, we have previously held that a trial court did not abuse its discretion “in ruling that any knowledge acquired by [a child victim] through observation of his mother performing oral sex on a man, and through possession of certain magazines owned by his father, was not relevant” to a jury’s consideration of whether the defendant sexually molested the child. And here, any alleged exposure to the sexually explicit photographs of her mother or her mother’s sexually explicit conversation was wholly irrelevant to the issue of whether Walker committed the acts alleged by S. T., and was thus properly excluded by the trial court.

(b) Walker also sought to present evidence that S. T. once falsely alleged that a man in a bowling alley had molested her. The trial court allowed a proffer outside the presence of the jury, and Walker presented testimony from S. T.’s grandmother and sister that, after being told she could not attend a slumber party, S. T. stated that “she should have said something about the guy at the bowling alley doing something to her.” When questioned about the statement, S. T. allegedly responded that “he really didn’t do anything to her” and that she “just wanted to go home to her mom.” Walker sought to introduce this testimony “to show the alleged victim’s lack of credibility.”

The trial court ruled that this evidence was inadmissible as a collateral matter that would confuse the issues and lead to a trial within the trial. The court viewed in camera a forensic videotaped interview with S. T. regarding the man at the bowling alley and determined, after watching the interview, that Walker’s evidence did not rise to the level of establishing that S. T.’s claim—that the man had touched and rubbed her ankles and tried to open her legs to look up her skirt—was false. We agree with the lower court that Walker’s evidence did not establish by reasonable probability that this prior allegation was in fact false.

While the Rape Shield Statute does not prohibit the introduction of evidence that a victim has made prior false accusations of sexual misconduct, a trial court must, before admitting such evidence, “make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.” The trial court did not find a reasonable probability of falsity, and we will not disturb this finding absent an abuse of discretion. And while the trial court was faced with conflicting evidence as to the truth or falsity of S. T.’s prior allegation, Walker has not demonstrated that the trial court abused its discretion in concluding that Walker’s proffered evidence did not establish a reasonable probability of falsity.

2. Walker next contends that the trial court inhibited his ability to impeach S. T.’s aunt, one of the State’s chief witnesses, with allegations that she physically abused S. T. through severe beatings. Additionally, Walker alleges that the trial court bolstered the credibility of the aunt in violation of OCGA § 17-8-57.

(a) First, Walker claims that the trial court “banned” him from impeaching S. T.’s aunt by sustaining objections made by the State. The State anticipated that Walker would try to impeach the aunt by alleging that S. T. had moved in with the Walkers after the aunt “beat the hell out other.” Accordingly, the State inquired of the aunt on direct examination whether this was true, and she denied abusing the child. On cross-examination of the aunt, defense counsel’s only attempt at impeachment of the aunt surrounded an untruthful statement that she made in her son’s application to attend private school; and counsel did not question the aunt about any alleged beatings of the victim.

Later, on direct examination of the victim’s grandmother, defense counsel asked her to describe the circumstances surrounding S. T.’s move to her home, and she responded as follows:

. . [S. T.] was just becoming too much for [the aunt]. [The aunt] would come to our house a lot after she picked up [S. T.], and [S. T] was in trouble every day. I mean, every day [S. T] was getting a spanking. And one day . . . [the aunt] went back there, [the aunt] was spanking [S. T] over something [S. T] had done at school and —”

The State immediately objected to this line of questioning as concerning subject matter that its witness had not been questioned about on direct examination and as a reference to specific bad acts “about whether [S. T.] was in trouble.” At no point did Walker’s counsel respond to this objection or explain that he was attempting to impeach S. T.’s aunt. The only explanation offered by defense counsel was that he was “just trying to get [the grandmother] to tell us how [S. T] came to be living with her and when.” The trial judge ruled that it would be sufficient for the grandmother to say that S. T. had come to live with her “because she was having problems” and also sustained the State’s objection as to specific bad acts.

When the State cross-examined the grandmother, she was asked why she did not care about S. T.’s allegations of sexual abuse, and she responded as follows: “I care very much for my granddaughter. I love her. She was beat black and blue by [the aunt].” The State then objected to the grandmother’s answer as unresponsive, and the trial court sustained the objection, saying, “Strike any reference to [S. T] being beaten black and blue by anyone else as unresponsive to the question.” Walker’s counsel did not challenge the court’s ruling or attempt to make a proffer of testimony.

Finally, during direct examination of S. T.’s great-aunt, Walker’s counsel inquired as to whether she noticed anything peculiar when she visited S. T. in the hospital after the molestation allegations were made. The great-aunt responded that she noticed a bruise on S. T.’s leg and asked the doctor to “make note of [it]” because of “[the aunt’s] history of beating [S. T.].” The State objected, and the trial court sustained the objection, instructing the jury to “disregard any reference to an allegation that [the aunt] beat [S. T.].” Once again, Walker’s counsel did not challenge the court’s ruling or make a proffer of the evidence in support of this testimony. Following cross-examination, the trial court held a bench conference and instructed defense counsel that he would be held in contempt if another witness “blurt[ed] out anything about [the aunt] beating” the victim.

In a brief supporting a motion for new trial, Walker explained that he “wanted to use this evidence to show that [the aunt] corroborated [S. T.’s] testimony to hide [the aunt’s] mistreatment of [S. T.].” However, by acquiescing in (and failing to challenge) the trial court’s rulings on the State’s objections, Walker waived the right to complain on appeal about the exclusion of this testimony. Moreover, if Walker truly intended to use evidence of the alleged beatings to show that the aunt’s testimony was biased as a means of self-preservation, the trial judge properly limited the testimony in question because Walker’s counsel failed to lay a proper foundation for this testimony. Indeed, before a witness is impeached to prove bias through the testimony of other witnesses, a foundation “must first be laid by cross-examining the witness sought to be impeached as to his feelings toward the party.” And as noted supra, defense counsel did not cross-examine S. T.’s aunt about the alleged beatings that he now claims were so vital to impeachment. Additionally, if Walker intended to use this testimony to contradict the aunt’s statement that she did not “beat the hell” out of S. T, the trial court had discretion in limiting testimony on this matter. Thus, the trial court did not err by restricting the foregoing testimony.

(b) Second, Walker contends that the trial court violated OCGA § 17-8-57 by bolstering the aunt’s credibility. Again, because Walker did not object or move for a mistrial on this ground, “his complaint regarding the . . . [alleged] violation has been waived.” However, the plain-error doctrine applies to this issue, and as such, we review the trial court’s commentary to determine whether it “is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which so seriously affects the fairness, integrity or public reputation of a judicial proceeding.”

Specifically, Walker characterizes the trial court’s instruction for the jury to disregard any reference to the aunt beating S. T. and to strike “any reference to [S. T.] being beaten black and blue by anyone else” as bolstering the credibility of the State’s witness. We disagree. As detailed supra, these comments were made when ruling on objections by the State, and “[sustaining or overruling an objection is not a violation of OCGA § 17-8-57.” Additionally, “remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” Thus, because this commentary was not improper, Walker has failed to show plain error.

3. Walker further argues that the trial court erred in admitting hearsay testimony without requiring the State to establish the necessity of the testimony or particular guarantees of trustworthiness. Specifically, Walker takes issue with a statement made by S. T.’s aunt who testified that she had in the past informed the grandmother about allegations of sexual assault made by a sister who was deceased at the time of trial. According to Walker, this statement was used against S. T.’s grandmother, one of his chief witnesses, “to assassinate her character by bootstrapping such hearsay testimony . . . without any way for the defense to cross examine such an allegation.” However, this enumeration of error is without merit because the complained-of testimony was not hearsay.

An out-of-court statement is original evidence, not hearsay, when used as proof that such a statement was made and not offered as evidence to prove the truth of the matter asserted. And here, the aunt’s testimony was not presented to establish the truth of the matter asserted—i.e., that her sister had been sexually assaulted. Rather, on cross-examination of the grandmother, the State asked if it was true that she had a history of tolerating the abuse of young children, including her own daughters. Following an objection by the defense, the State then elicited testimony that the grandmother was aware of allegations by all three of her daughters (the third being S. T.’s own mother) that they were molested by the grandmother’s brothers, along with a denial that she did not care about the allegations.

Following the grandmother’s testimony, the State questioned the aunt in rebuttal to testify about the allegations made by her sisters and herself and about the grandmother’s subsequent reaction (or lack thereof) to the allegations of abuse. This testimony revealed that despite the grandmother’s knowledge of her daughters’ allegations, she was still in contact with her brothers and had even made one a pallbearer in her deceased daughter’s funeral. Thus, this testimony was clearly used to attack the credibility of the grandmother, one of Walker’s key witnesses, by showing her bias against S. T. and explaining her conduct. Because it was not used to establish the truth of the matter asserted, the testimony by the aunt was not hearsay and was properly admitted over Walker’s objections.

4. Finally, Walker contends that the trial court committed error when, after learning that the jury had reached a verdict on some counts, it instructed the foreperson as follows:

I understand you want to recess for the night, but this is what I’m going to ask you to do. Go back as foreperson, poll the jury. And if, in fact, you have reached a final judgment on those counts, write it on a separate sheet of paper, [“W]e the jury, find count, whatever it is, count one, count five, six, eight, whatever, guilty or not guilty. [”] Sign it, date it, fold it over. But only after you talk to the jurors and you are fixed in that decision. . . . And then come back and I’ll give you further instructions about recessing for the night.

After retiring to deliberate on these instructions, the jury surprised the court by returning with a guilty verdict on all counts. While Walker’s counsel objected to the court’s instruction when he believed only a partial verdict would be returned (contending that it was premature because the jury had not indicated that it was deadlocked), he did not move for a mistrial or object after learning that the jury had in fact returned with a verdict on all counts. Defense counsel only moved for a mistrial following the reading of the guilty verdict on all counts. On appeal, Walker now argues that the instruction was premature, improper, unduly suggestive, and that it pressured the jurors to reach a decision. He further contends that “[s]uch an instruction should not take the place of an [Allen charge] or be done before it is determined that the jurors are deadlocked or before it is determined that they have had enough time to deliberate.”

To the extent that this issue has not been waived by Walker’s failure to make a new objection upon learning that the jury had reached a full verdict, we find no merit to his contention and do not believe the court’s instruction was erroneous. Indeed, this situation is factually similar to that involved in Disby v. State, in which the Supreme Court of Georgia held that it was not improper for the trial judge, upon learning that the jury had reached a verdict on one count, “to let the jury publish its verdict as to [that count] and finish its deliberations on [the other count] the following day.” In the case sub judice, the judge was prepared to accept a partial verdict for the counts on which the jury agreed and planned to allow continued deliberation on the remaining counts the following day. Additionally, the judge told counsel that he was not even going to look at the jury’s decision or declare a verdict on the unanimous counts that evening. That the jury decided to continue in its deliberations and reached a verdict on all counts does not mean that the trial judge’s instruction was premature, improper, or unduly suggestive, because the judge’s actions “did not improperly curtail the jury’s consideration” of the remaining counts.

Decided March 3, 2011.

Kathryn E. Rhodes, for appellant.

J. Gray Conger, District Attorney, Crawford L. Seals, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

        See, e.g., Gresham v. State, 281 Ga. App. 116, 117 (635 SE2d 316) (2006) (“On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence.” (punctuation omitted)); 'Warren v. State, 265 Ga. App. 109, 110 (592 SE2d 879) (2004) (same).

       The victim was living with her paternal grandmother at the time of trial.

        See OCGA § 24-2-3 (a). The Rape Shield Statute provides that in prosecutions for aggravated child molestation, “evidence relating to the past sexual behavior of the [victim] shall not be admissible, either as direct evidence or on cross-examination of the [victim] or other witnesses, except as provided in this Code section.” Id. Evidence of past sexual behavior includes the victim’s “marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.” Id.

        See Harris v. State, 257 Ga. 666, 667 (1) (a) (362 SE2d 211) (1987) (“An important state interest that the right to confrontation must accommodate is an interest that furthers the truth-finding process. The Georgia Rape Shield Statute . . . assists the truth-seeking process by preventing the jury from becoming inflamed or impassioned and deciding the case on irrelevant and prejudicial evidence.” (citations omitted)); Green v. State, 221 Ga. App. 436, 436-37 (472 SE2d 1) (1996) (same).

       S. T.’s sister lived with Walker and S. T.’s grandmother since birth and believed they were her biological parents until S. T. made the allegations of molestation.

        See Payne u. State, 267 Ga. App. 498, 501 (1) (600 SE2d 422) (2004) (child’s exposure to pornography irrelevant to show nonchastity or preoccupation with sex but relevant as reason for child’s knowledge when child recanted allegations—though court said defense could show knowledge without specifying pornography as mechanism).

        See Montgomery v. State, 211 Ga. App. 142, 142-44 (625 SE2d 529) (2006) (child’s potential exposure to brother’s collection of pornography held irrelevant to alleged molestation); Callahan v. State, 256 Ga. App. 482, 485-86 (2) (c) (568 SE2d 780) (2002) (child’s exposure to a household with open sexual activity and observation of such held irrelevant); Cantrell c. State, 225 Ga. App. 680, 680-81 (484 SE2d 751) (1997) (child’s exposure to mother’s sexual activity and father’s pornographic magazines held irrelevant to claims of molestation).

        Cantrell, 225 Ga. App. at 681.

        See id.

        See Osborne v. State, 291 Ga. App. 711, 713 (2) (662 SE2d 792) (2008).

        See OCGA § 24-2-3; see also Roberts v. State, 286 Ga. App. 346, 347 (648 SE2d 783) (2007); Tyson v. State, 232 Ga. App. 732, 733 (2) (503 SE2d 640) (1998).

        Roberts, 286 Ga. App. at 347 (punctuation omitted); see also Tyson, 232 Ga. App. at 733 (2). Reasonable probability means “a probability sufficient to undermine confidence in the outcome.” Roberts, 286 Ga. App. at 347 (punctuation omitted).

        See Roberts, 286 Ga. App. at 347 (“A trial court’s ruling on this issue will not be overturned on appeal absent an abuse of discretion.”); Eley v. State, 266 Ga. App. 45, 47 (1) (596 SE2d 660) (2004) (“Absent an abuse of discretion, a trial court’s ruling upon the admissibility of such evidence will not be overturned.” (punctuation omitted)).

        See Roberts, 286 Ga. App. at 348 (holding that conflicts in evidence and issues of credibility were issues for the trial court to consider in making its ruling on the probability of falsity, and determinations on credibility are reviewed for clear error). We note that the lack of charges or a DFCS hearing in the prior incident does not require a different outcome because “[t]his court has held a number of times that the fact that an accusation is not prosecuted is insufficient to establish its falsity.” See Williams v. State, 266 Ga. App. 578, 581 (1) (597 SE2d 621) (2004) (holding further that the lack of prosecution “indicates only that insufficient evidence existed at the time for a charge to be brought”).

       The State also questioned S. T. about the forms of punishment used by her aunt, and S. T. admitted that her aunt sometimes spanked her with a belt, but she said that only her grandmother, Mrs. Walker, would spank her with a switch.

       The State did not specify whether this meant S. T. or her aunt.

        See, e.g., Lee v. State, 306 Ga. App. 144, 147-48 (3) (701 SE2d 582) (2010); Mote v. State, 297 Ga. App. 13, 16 (2) (676 SE2d 379) (2009).

        See Noellien v. State, 298 Ga. App. 47, 50 (3) (a) (i) (679 SE2d 75) (2009) (“LBJias must be specific to the case, arising from a self-interest or self-preservation motive that could be reasonably inferred to cause testimony to be shaded or distorted.” (punctuation omitted)).

        See Reese v. State, 252 Ga. App. 650, 654 (6) (556 SE2d 150) (2001) (“No foundation was laid for . . . impeachment on the question of. . . bias. The trial court did not err in sustaining the State’s objection!.]”).

        Id. (punctuation omitted).

       We note that contrary to Walker’s contention that the defense was “banned from impeaching” the aunt, Walker impeached her by introducing her son’s application to private school and by eliciting testimony that she would cut S. T.’s hair as a form of punishment. Walker also fails to mention that at least one reference to a beating was not objected to by the State or ruled inadmissible by the court, that there was testimony that S. T. had bruises on her body and was sometimes spanked with a belt, and that his counsel made reference to the alleged beatings in opening statement.

        See Barngrover v. Hins, 289 Ga. App. 410, 412 (1) (657 SE2d 14) (2008) (holding that court did not abuse its discretion by allowing limited investigation into indirectly material information); Carswell v. State, 263 Ga. App. 833, 834 (2) (589 SE2d 605) (2003) (“[W]hile a witness may not be impeached on a wholly immaterial matter, he may be impeached on collateral issues that are not indirectly material to the issues involved in the case.”); see also OCGA § 24-9-82 (“A witness may be impeached by disproving the facts testified to by him.”).

        See Barngrover, 289 Ga. App. at 412 (1); Reese, 252 Ga. App. at 654 (6).

       Under OCGA § 17-8-57, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

        Mathis v. State, 276 Ga. App. 205, 206 (622 SE2d 857) (2005).

        See id. (explaining that the plain-error doctrine applies on the issue of OCGA § 17-8-57 violations in instances of waiver); see also Adams v. State, 282 Ga. App. 819, 823 (4) (640 SE2d 329) (2006) (“A claim of error alleging a violation of OCGA § 17-8-57 is not waived by an attorney’s failure to object at trial, if such violation constitutes plain error.” (punctuation omitted)); Archie v. State, 248 Ga. App. 56, 57 (1) (545 SE2d 179) (2001) (same).

        Archie, 248 Ga. App. at 58 (1) (punctuation omitted); see also Mathis, 276 Ga. App. at 206 (“[W]e review the commentary to determine whether it amounted to an obvious violation . . . , meaning that it seriously affected the fairness, integrity, or public reputation of these judicial proceedings.”).

        Mathis, 276 Ga. App. at 207.

        Id. (punctuation omitted); see also Johnson v. State, 246 Ga. 126, 128 (V) (269 SE2d 18) (1980); Cochran v. State, 136 Ga. App. 125, 127 (3) (220 SE2d 477) (1975).

       Additionally, we note that when charging the jury, the trial court instructed them that nothing it said during the trial was intended as a comment on credibility.

        See OCGA § 24-3-2 (“When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.”); Walker v. State, 187 Ga. App. 631, 633 (1) (371 SE2d 199) (1988) (“Since the challenged testimony was not hearsay, the trial court did not err in allowing same into evidence.”). Compare Washington v. State, 251 Ga. App. 206, 210 (2) (553 SE2d 855) (2001) (holding that testimony was properly excluded as hearsay when it “was clearly offered to prove the truth of the matter asserted”).

        See Walker, 187 Ga. App. at 633 (1); see also Edgeworth v. Edgeworth, 239 Ga. 811, 812 (239 SE2d 16) (1977) (“[Tlestimony elicited to establish the fact that something was said, not the veracity of its content, is admissible to explain conduct and ascertain motives, not as hearsay, but as original evidence.”); Bull Street Church of Christ v. Jensen, 233 Ga. App. 96, 101-02 (2) (504 SE2d 1) (1998) (holding that testimony regarding an out-of-court statement was direct evidence of notice, not inadmissible hearsay).

        See OCGA § 24-3-2 (prior statements are not hearsay when used as facts to explain conduct).

        See id.

       An Allen charge is given by the trial court when the jury in a criminal trial indicates that it is deadlocked, encouraging the jurors to re-examine their opinions in continued deliberation and to attempt to reach a unanimous verdict. See Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896); see generally Humphreys v. State, 287 Ga. 63, 79-82 (9) (694 SE2d 316) (2010); Wells v. State, 297 Ga. App. 153, 160-61 (2) (676 SE2d 821) (2009).

        See Disby v. State, 238 Ga. 178, 179 (3) (231 SE2d 763) (1977). Cf. Sumlin v. State, 283 Ga. 264, 266 (2) (658 SE2d 596) (2008) (failure to renew motion for mistrial until after return of verdict waived review of improper closing argument); Pearson v. State, 277 Ga. 813, 816 (4) (596 SE2d 582) (2004) (“A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” (punctuation omitted)).

        See Bankston v. State, 169 Ga. App. 955, 956-57 (2) (315 SE2d 671) (1984) (“The decision of whether to give a jury in disagreement the ‘Allen’ charge, including deciding the length of time a jury may be allowed or required to deliberate before the charge is given, generally lies within the discretion of the trial court and will not be disturbed on appeal unless there is a manifest abuse of discretion.”).

       238 Ga. 178 (231 SE2d 763) (1977).

        Id. at 179-80 (3).

        Byrd u. State, 277 Ga. 554, 558 (3) (592 SE2d 421) (2004); see Dean v. State, 205 Ga. App. 512, 512-13 (422 SE2d 569) (1992) (holding that judge’s comment to jury that they had until 5:00 p.m. to deliberate did not create impression that jury was required to reach a verdict by a certain time).


text:
    A10A1946.
    DOSSIE v. SHERWOOD.
    (707 SE2d 131)
   Dillard, Judge.

In this personal injury action, appellee Corey Sherwood sued appellant Kecia Dossie for injuries he received as a result of Dossie driving her vehicle into his own, while allegedly operating her vehicle in a negligent manner. Following a trial, the jury returned a verdict in favor of Sherwood pursuant to a general-verdict form. Without challenging the jury’s finding of liability, Dossie argues on appeal that the trial court erred by denying her motion for directed verdict on the issue of lost earnings, which she claims resulted in a jury verdict based upon speculation and guesswork. We disagree and affirm.

Our case begins with Sherwood’s decision to make a go of the “American dream.” After eight years of employment with Sears as a delivery helper (and just three months before the accident in question), Sherwood purchased a delivery truck and started his own business working for a carrier company that contracted with him to deliver furniture on behalf of large retail outlets (like Sears). Tragically, this business venture was short lived due to a wrist injury Sherwood sustained as a result of the accident involving Dossie — which prevented him from working and/or operating his business for six months, caused him to lose his delivery contract with the carrier company, and forced him back into employment as a contractor’s helper.

Thereafter, Sherwood sought damages to compensate him for his medical expenses, the general pain and suffering he experienced as a result of the accident, and the lost earnings he suffered during the six-month period he was unable to work or operate his business. At the close of evidence, Dossie moved for a directed verdict on the issue of Sherwood’s lost earnings, which the trial court denied. The jury then returned a general verdict awarding Sherwood damages in the aggregate amount of $28,727.92. This appeal follows.

At the outset, we note that a directed verdict is not proper unless “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” Moreover, in considering whether the trial court erred by denying a motion for directed verdict, this Court “must view and resolve the evidence and any doubt or ambiguity in favor of the verdict.” Thus, we review a trial court’s denial of a motion for directed verdict using the “any evidence” standard, during which we construe the record in the light most favorable to the nonmoving party.

Here, Dossie argues that the denial of her motion for directed verdict on the issue of lost earnings resulted in a jury verdict based upon speculation and guesswork. Dossie, however, failed to request that the jury’s damage award be apportioned, and otherwise did not object to the use of a general-verdict form. And because the jury did not segregate how much of its award was attributable to loss of earnings, as opposed to medical expenses and/or general pain and suffering (which includes a component of mental suffering for a diminished capacity to labor), it is impossible to discern what amount, if any, Dossie alleges to have been improperly awarded. Consequently, she has waived this argument. But even in the absence of such a waiver, the trial court did not err in concluding that Sherwood presented sufficient evidence to allow the issue of his lost earnings to go to the jury.

In Georgia, the loss of one’s earnings from the date of injury to the date of trial as a result of a personal injury is a separate and distinct pecuniary damage that is recoverable, so long as the amount can be determined with reasonable certainty. Moreover, if it has been sufficiently established that the loss of earnings was caused by the tortious conduct of the defendant, the fact that the exact measure of the earnings lost may be challenging for the jury to calculate does not preclude their recovery. As we have previously explained,

[t]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.

Decided March 3, 2011.

Gray, Rust, St. Amand, Moffett & Brieske, Michael D. St. Amand, Marcus W. Wisehart, for appellant.

George W. Brinson, for appellee.

And at trial, Sherwood gave uncontroverted testimony that, as a result of the accident and his inability to work for a six-month period, he lost his business as a delivery contractor and was forced to return to work as a contractor’s helper (in which capacity he earned less money). This testimony was then corroborated by Sherwood’s physician, who confirmed for the jury Sherwood’s physical limitations during the period in which he was unable to work. Sherwood also called as a supporting witness the assistant manager of the carrier company he contracted with to make deliveries, who testified that Sherwood was—as a delivery contractor—guaranteed payment of no less than 60 percent of the daily $630 hauling revenue generated by his truck (from which he had to pay expenses), and that he was estimated to earn approximately $50,000 to $54,000 per year after those expenses were paid. And while he had only worked as a delivery contractor for approximately three months prior to the accident, Sherwood submitted an activity report and earning statements tending to support those estimations. Thus, the jury was presented sufficient evidence from which to calculate an award of probable lost earnings with reasonable certainty, and the verdict fell within the range of that evidence.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       Sherwood did not, however, seek compensation for the loss of future earnings because he regained the full functioning of his wrist by the time of trial.

       Sherwood submitted bills evincing approximately $4,875 in medical expenses.

        Gipson v. Phillips, 232 Ga. App. 235, 235 (501 SE2d 570) (1998) (citations and punctuation omitted); see also Fouls v. Builders Transp., Inc., 222 Ga. App. 568, 577 (474 SE2d 746) (1996) (same).

        Gipson, 232 Ga. App. at 235 (citation and punctuation omitted); see also S. Store & Rest. Equip. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268) (1990) (same).

        See, e.g., Turnage v. Kasper, 307 Ga. App. 172, 178-79 (1) (704 SE2d 842) (2010).

        Myrick v. Stephanos, 220 Ga. App. 520, 521 (2) (472 SE2d 431) (1996) (“ ‘Diminished capacity to labor’ is an element of pain and suffering recoverable by one who is physically injured [and] ... is an item of general damages.” (citations omitted)).

         See, e.g., The Pep Boys-Manny, Moe & Jack, Inc. v. Yahyapour, 279 Ga. App. 674, 677 (5) (632 SE2d 385) (2006) (concluding that appellants waived any challenge to the jury’s damage award because they failed to request that the verdict be apportioned to specifically set forth the amount attributed to lost earnings); Williams v. Adams, Í70 Ga. App. 35, 36 (1) (316 SE2d 1) (1984) (same); see also Setliffv. Littleton, 264 Ga. App. 711, 713 (1) (592 SE2d 180) (2003).

       There was some confusion in the parties’ appellate briefs, as well as in the trial court below, as to whether Sherwood’s claim was better characterized as one for lost wages or lost profits. Neither characterization is accurate. Sherwood is an independent contractor (not an employee), and he therefore does not receive wages for his delivery services. And while the income Sherwood received for such services could be characterized as profits in a generalized sense, the damages he seeks in tort are for his lost earnings during the six-month period he was unable to work as a result of the wrist injury caused by Dossie’s negligence. The distinction between damages for lost profits and lost earnings is one that has long been recognized in Georgia. See Sw. R.R. Co. v. Vellines, 14 Ga. App. 674, 688-89 (82 SE 166) (1914) (holding that “[t]he very difficulty which confronts a plaintiff seeking to recover such probable earnings on account of time lost through the tortious act of another is responsible for the more liberal rule generally adopted and the greater latitude allowed by the courts in the matter of such proof, since every right must have its remedy, and strict requirement along this line might deny a sufficient remedy to one who happened to be laboring not for a fixed and definite salary, but for fees or commissions,” and that “[w]here by the very nature of things no better evidence is available or possible of production, the law perforce contents itself with proof of past average earnings, not always perhaps as proof of actual lost profits, but as illustrating the earning capacity of the plaintiff, and hence the value of his lost time” (emphasis supplied)). In any event, Sherwood’s lost earnings are recoverable from the time of his personal injury until the date of trial, so long as causation is established and the amount sought is sufficiently proven. See, e.g., Kroger Co. v. Perpall, 105 Ga. App. 682, 686 (3) (125 SE2d 511) (1962) (“If the injured person was employed at fixed wages or salary, the amount lost may be readily determined!;] [i]f he was not of that class, evidence concerning his occupation or profession, its nature and extent, his ability to engage therein, and the antecedent pecuniary rewards for his personal skill and services may be shown.” (punctuation omitted)); see also Gipson, 232 Ga. App. at 235-36 (including as lost earnings retiree’s anticipated profits derived from odd jobs); Fouts,
        222 Ga. App. at 577 (4) (including as lost earnings saleswoman’s anticipated income from sales of kitchenware); Mote v. Tomlin, 136 Ga. App. 616, 618 (2) (222 SE2d 57) (1975) (including as lost earnings carpenter’s reduction in income derived from activities as an independent contractor); Carroll v. Morrison, 116 Ga. App. 575, 576 (3) (158 SE2d 480) (1967) (including as lost earnings waitress’s estimated loss of tips).

        See, e.g., Gipson, 232 Ga. App. at 236 (noting that damages at issue could be characterized as either “lost profits” or “lost earnings,” and holding that “even if we were to find the evidence was insufficient to provide a basis for calculating lost profits, reversal is not required where the trial court properly charged the jury that lost earnings were recoverable ‘where the evidence shows with reasonable certainty the amount of the loss’ ” (citation omitted)); Pouts, 222 Ga. App. at 577 (4) (noting the distinction between lost profits and lost earnings, and holding that the evidence presented at trial supported a claim for lost earnings); Quiktrip Corp. v. Childs, 220 Ga. App. 463, 467 (5) (469 SE2d 763) (1996) (“Lost wages and earnings are recoverable where the evidence shows the amount of the loss with reasonable certainty and the evidence permits the jury to determine the amount of the loss without speculation or guesswork.”); Beal v. Braunecher, 185 Ga. App. 429, 433-34 (5) (364 SE2d 308) (1987) (holding that trial court did not commit reversible error in charging jury that “reasonable certainty” was the proper standard for establishing the value of plaintiffs “lost earnings,” and that “some evidence was all that was required in this matter”); id. at 435 (noting the “substantial difference” with respect to the types of evidence necessary to prove damages for “lost profits” and “lost earnings,” and that “[t]o recover for lost profits the damages must be proven definitely,” whereas “lost earnings may be recovered if the proof is reasonably certain and not mere speculation or guesswork”) (Beasley, J., dissenting); Douglas v. Rinker, 134 Ga. App. 949, 950 (216 SE2d 629) (1975) (holding that “[l]ost earnings can be recovered if the proof is reasonably certain”); Kroger Co., 105 Ga. App. at 686 (3) (“Loss of time, with reference to the injured party’s condition and ability to earn money in his business or calling, is universally regarded as a proper element of compensation.” (punctuation omitted)).

        Crosby v. Spencer, 207 Ga. App. 487, 488 (1) (428 SE2d 607) (1993) (punctuation omitted).

        See, e.g., Olariu v. Marrero, 248 Ga. App. 824, 827 (3) (a) (549 SE2d 121) (2001) (physical precedent only) (affirming award of lost earnings based upon plaintiffs expected earnings from an employment offer that she had accepted but not yet begun to perform); Gipson, 232 Ga. App. at 236 (affirming award of lost earnings calculated using plaintiffs average weekly income doing odd jobs and grading work prior to the date of injury); Quiktrip Corp., 220 Ga. App. at 467 (5) (affirming construction contractor’s lost earnings established using evidence of prior income despite the fact that he had worked little during the time preceding the accident and had faced several layoffs); Am. Ass’n of Cab Cos. v. Egeh, 205 Ga. App. 228, 230 (3) (421 SE2d 741) (1992) (affirming jury’s award of lost earnings to cab driver calculated using sample trip sheets); Kroger Co., 105 Ga. App. at 686 (“Where damages are sought for the interruption of an established business or profession, it is proper to calculate the lost income or profits by showing the amount of time lost and the average value of such loss based on operations for a reasonable period immediately prior thereto.”).


author: PHIPPS, Presiding Judge.

text:
    A10A2057.
    SMITH v. THE STATE.
    (707 SE2d 135)
   PHIPPS, Presiding Judge.

After a joint trial, a jury found Douglas Smith and Andrea Sinyard guilty of multiple drug offenses, and Smith guilty of possession of a firearm by a convicted felon. Smith appeals his convictions, asserting that the court erred in denying his motion for mistrial after a witness testified to a statement made by Sinyard. Smith argues that, because Sinyard herself did not testify at trial, the evidence of her statement violated the Confrontation Clause and the rule set forth in Bruton v. United States. Finding no abuse of discretion, we affirm.

In Bruton v. United States, the Supreme Court of the United States held that the admission of a powerfully incriminating extrajudicial statement of a nontestifying co-defendant can pose a substantial threat to a defendant’s rights under the Confrontation Clause that cannot be cured by a limiting instruction. Bruton, however, “only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and . . . Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.”

The state sought to prove at trial that Smith lived at Sinyard’s residence, where controlled substances and firearms had been found by law enforcement. A police officer who had searched Sinyard’s residence testified to finding various items indicating that Smith lived there, including mail addressed to him and a bank card bearing his name. Counsel for Sinyard then asked: “[D]id you discover any other physical evidence that Douglas Smith resided at [the residence]?” The officer responded: “Just the mail, the clothing, and Ms. Sinyard’s statements.”' Smith objected and moved for a mistrial, which the court denied. The court instead instructed the jury that,

Decided March 3, 2011.

Mary Erickson, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

[i]n determining the issue of the residence [of Defendant Smith] you shall not consider any out-of-court statements, if there were any, made by the co-defendant, Ms. Sinyard, or any references by any State’s witness to any out-of-court statements that the witness contends were made by the co-defendant Sinyard.

We discern no error. Although the challenged testimony referred to the existence of statements made by Sinyard, it did not describe the contents of any such statements. Thus, the challenged testimony did not present to the jury any co-defendant’s statement clearly incriminating Smith in violation of Bruton.

When, earlier in the trial, a different witness testified about specific statements made by Sinyard — that she was married to someone named “Doug” who was “at home with her child” and that “they lived [at Sinyard’s residence]” — Smith did not object. He thus has waived any claim of a Bruton violation based on this earlier testimony, because a motion for mistrial based on Bruton must be made at the time the testimony objected to is given, and it is not timely if counsel makes the motion later in the trial.

Under these circumstances, the trial court did not abuse its discretion in giving a curative instruction rather than granting Smith’s motion for mistrial.

Judgment affirmed.

Miller, B J., and McFadden, J., concur.

       Trafficking in cocaine, possession of cocaine with intent to distribute, possession of cocaine, possession of methamphetamine with intent to distribute, possession of methamphetamine, possession of methylenedioxymethamphetamine, and possession of more than one ounce of marijuana.

       391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

       See Nelms v. State, 285 Ga. 718, 721 (2) (b) (681 SE2d 141) (2009) (reviewing for abuse of discretion court’s denial of motion for mistrial on Bruton grounds).

       Supra.

       Id. at 135-137.

        Moss v. State, 275 Ga. 96, 98 (2) (561 SE2d 382) (2002) (footnote omitted); see Richardson v. Marsh, 481 U. S. 200, 211 (107 SC 1702, 95 LE2d 176) (1987) (declining to extend Bruton rule beyond facially incriminating confessions of nontestifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate).

       (Emphasis supplied.)

       See Ham u. State, 303 Ga. App. 232, 243 (5) (a) (692 SE2d 828) (2010) (detective’s testimony about the existence of a co-defendant’s statement as evidence did not, standing alone, directly incriminate the defendant; thus, no Bruton violation found).

       See id.

       See Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841) (1990).

       See Moss, supra at 99; Ham, supra.