*1 he polygraph that testified This witness test. ministered defendant’s polygraphs test approximately [he] ran at the time “had run on polygraph administering test, defendant’s and, [defendant]” since polygraphs . . .” and “almost he had conducted he testified that polygraph Board “State examiner as a had been licensed Polygraph say circumstances, we cannot these Under Examiners.” polygraph allowing examiner the State’s court erred that the trial to opinion give test testify expert results of the his as an (1) v. Tate See to defendant. he administered any vague- “[B]y show [defense] counsel cross-examination any subjectiveness exam- or indications ness of the electronic exploring interpretations, conditions other as well as iner’s subject’s responses.” produced such have could untruthfulness which judice, supra. we sub In the case Chambers, State attorney defendant’s and find that have examined the trial thoroughly expert polygraph examiner, ef- State’s cross-examined the opin- vitality testing fectively stressing his his weaknesses expert polygraph polygraph attorney called an Moreover, the defendant’s ion. examiner who testified that examined defendant’s he had It is inconclusive. “chart that defendant’s test results and concluded deception.” circumstances, we find Under does not show weight jury properly decide what “the allowed the trial court 76, 80, given Chambers, State should be supra. this evidence.” is without merit. of error This enumeration Appeals Judgment dismissed Case No. affirmed Beasley, Sognier JJ., concur. Case Nos. 75001 and 75002. 5, Decided November Rehearing 20, 1987 denied November appellant. Nuckolls, John A. Attorney, for Crawford, District Michael WEST, INC. ABBEY HILLCREST 75127. GALLETTA et al. v. (363 SE2d Judge. Birdsong, Chief cemetery plot of a fraud the sale This is a suit for ap- ap- purchased plot grave. from the desecration of a daughter. pellee pellee began their infant in 1982for interment of crypt” “feature of a mausoleum daughter construction buried. section where grave. vehemently placement the child’s mausoleum near of a suit, filed contending represented it had been to them that a statue of religious figure or similar feature would be erected on the then-existing buried, base daughter section where their bought plot upon representation. lants also sued for desecration of the grave, child’s caused 80,000 pound concrete truck being driven over the *2 crush casket, the child’s placement and the of material on grave, the so that could not now be sure where the grave is. trial,
At the court directed a verdict for the cemetery, defendant on the basis had not by rescinded the contract offer- ing restore plot the to the cemetery, and that the issue of desecra- tion was not set pre-trial out the order appellants’ and the hand- written motion to amend the order on the third came too late.
The trial court denied motion for new trial on Decem- 3, ber a appeal filed notice of on December 23. On January 28, days six after the date for filing transcript the required as by 5-6-42, OCGA appellants moved for an § extension of time to file but this was outside the time allowed OCGA 5-6- § (d) 39 for such 30, a motion. January On filed an “Emer- gency Motion to Dismiss” appeal, granted. which was Held:
1. The trial court appellants, found the though in Sep- notified tember 1986 of the cost of transcript the transcript was ready, pay failed to the costs and thus caused inexcusable and unrea- sonable delay in filing the transcript. Although appellants deny hav- ing notice, received such the trial court did not abuse its discretion and fact-finding powers in finding otherwise in finding delay to be inexcusable.
However, the question threshold whether the unrea- delay was sonable separate matter, is a principally refers length effect delay. (c). OCGA Young See v. Climatrol &c. Distrib. Corp., (226 737). 237 Ga. 55 SE2d As to question determination of the trial court is a matter of legal discretion and is subject to review appellate courts. Id. requirements time of OCGA 5-6-42 filing transcript jurisdictional,
are not but merely are avoiding delay means of so the case presented can be on the possible earliest calendar late Weaver, courts. Green v. (291 247). 161 App. Ga. SE2d OCGA 5-6-30 provides appellate practice article shall be liberally construed so as to bring about decision on the merits of every appealed case and to except avoid dismissal of case be specifically referred to the article. The requiring filing section the transcript 5-6-42) days (§ within 30 is specifically designed to fa- cilitate appellate an decision on the possible merits at the earliest Green, date. supra. Since it is not a jurisdictional requirement, very punctuality defeat the not be so strict as to demand for purpose should altogether, by preventing appeal requirement un- appeal See affect the itself. less the unreasonable (234 338). pol- Leathers, SE2d Thus Gilland v. icy appeal reach the mer- of the law is to avoid a dismissal Nat. Corbin First is reasonable to do so. its of the case where it (258 697). Bank, transcript in this case was was to have been filed
The date the February appeal January upon 22. When trial court dismissed appellee’s “emergency” dismiss, motion to February days intima- filed 3. There is no was thus eleven tion that the The uity late. It was 11-day delay. any prejudice suffered any ineq- delayed justice stale; nor had was not was not change in resulted, intermediate conditions. nor was there Hornsby Rodriquez, There is See transcript prevented 11-day delay filing no indication the placement possible in this court calendar of the case on the earliest (Green, hearing supra) delayed docketing McCluskey, American Oil Co. v. of the case this court. See App. 706, below 708-709 The record from the clerk May 26, was in fact half in this court until three and one- not docketed *3 transcript circumstances, filed. months after the Under 11-day delay paying it is in for and difficult to conclude filing utterly transcript, inexcusable, was so unreasonable as however right appeal.
remove their H., In re G. W. 168 The this case is similar to contends (310 573). delay filing However, in in that case the Ga. 845 SE2d delayed transcript obviously months; was more four this docketing necessarily, appellant responsible for that was found transcript. delay filing unreasonable and inexcusable this case the discernibly delay of the of the delay filing transcript days 11 and did (In docketing re of the record in this court. duty appellant H., dictum, G. file the W. ascribes to the 5-6-42; §§ record under clerk’s OCGA 5-6-41 and this (OCGA duty (a)), appeal may § be dismissed under (c) delay filing § the record OCGA 5-6-48 for unreasonable delay by appellant’s pay when such is caused failure to costs within mail.) days by registered of notice or certified appeal dismissing The trial this under court further erred delay finding error of law. The trial court stated in its of unreasonable transcript September that the reporter completed 1986 when could have been filed “languished
it, . . . without transcript” appellant’s benefit of a court denied motion until transcript Thus, “[f]rom for new trial on December 3. was the date ready filing [for new the court ruled on the motion to the date without [appellants] period had a exceeding trial] two months within which they should have filed the This transcript. in itself is inexcusable and delay.” unreasonable The trial court there- adjudged fore 11-day delay in filing transcript within 30 days appeal notice of to be unreasonable because failed to file transcript September, three months before the no- tice appeal was filed. This appellant was error. The had no obliga- tion to file the transcript until his disposed motion for new trial was (331 of. Whitton v. App. 634, 10). 174 Ga. 635-636 SE2d granted discretion in OCGA 5-6-48 to the trial court dismiss an § appeal for unreasonable and delay inexcusable filing transcript within days of notice of cannot hark back to whether trial court’s estimation appellant should transcript have filed the for consideration of a motion for new trial or at some other earlier point. There is no requirement transcript file a for mo- (see tion for 5-5-40), new trial OCGA and the failure to do so or the failure pay (in and file the transcript ready as soon as it is case, September) has no controlling bearing question of unrea- sonable in filing after notice of as required by OCGA 5-6-42.
We therefore conclude the trial court erred in dismissing ap- peal.
2. The trial court did not err in directing
a verdict for the
lee on the fraud issue.
clearly
The record
shows the
contract,
is,
rescind the
did not restore or offer to restore their
benefit of the
contract
OCGA
13-4-60.
reason
requirement
rescission
expressed
Ragsdale
is well
in Brown v.
Co.,
(16
Motor
App. 727,
729-732
SE2d
See also Brown v.
Techdata Corp.,
(234
787); City
625-627
Dodge
SE2d
Gardner,
(208
716) require does not result; a different it was upon pecu founded liar facts in that plaintiff were that the longer no had the property back, to tender in any against grain case is law. Similarly, the in National Old Lane, decision Line Ins. Co. v. upon was based pertinent the more fact *4 that the subject property was worthless and therefore plaintiff did not retain an unconscionable benefit suing while for fraud in in ducement.
The appellants contend the cemetery plot them; is worthless to but it obviously would have some value to the and therefore the appellants could not sue for fraud retaining while the benefit of And, the contract. while it seems ap that as a matter of fairness pellants should not have had to body disinter their child’s re bury it in plead order to they were damaged by (see Brown the cases fraud, statute still the rescission only tender, require supra) a restoration but Techdata, actual do not very appropriate did in this case. been which would have not do for the directing a verdict not err this, thus the trial court issue. on the fraud disallowing appellants’ to amendment erred in 3. The trial court pretrial include the claim the third order on By complaint. plaintiffs’ in the of the stated for desecration that throughout introduced had been time, of desecration the issue of evidence being any objection it had made that the trial without pro- pretrial 9-11-16, which order. OCGA been excluded from vides that the subsequent pretrial course order “controls injustice,” prevent manifest trial to action unless modified at the mandatory provisions applied light § 135, OCGA 9- of must be (b). Corp., Box Board Carreras v. Austell 11-15 137-138 provides issues that when section That code by express implied pleadings consent of or are tried not raised the raised necessary respects parties, “they if had been as shall treated all be may pleadings pleadings. be as amendment of Such and to raise to the evidence to cause them to conform party any upon any time, even after at motion of issues be made judgment.” (Emphasis supplied.) re the This rule of law (as principle applies pleading) pretrial a amendment of a even more by order emphatically is raised when, in this an issue sought by express implied pleadings consent is and is tried pretrial preserved by pretrial or- order. to be amendment judiciously functionary designed is, all, the CPA der after (b) pre- provides reach the merits of the case. OCGA 9-11-16 trial order controls the course of the action at the “unless modified supplied.) injustice.” (Emphasis prevent The refusal trial of this manifest pretrial pretrial order to the issues conform the amendment to objec- actually pleadings at trial without raised and entered contrary by implied operated tion, i.e., consent, to OCGA 9-11- tried (b) spirit on their mer- of the Act that cases be decided and to the be avoided. See its and that on other considerations decisions based Archer, Ambler v. implied appellee urges this issue was not tried appellee objected limine, evi consent because dence present a motion being relating people walking graves material or appellee sought graves. exclude However, in that motion cemetery regulations gave it the rules and the evidence because the right ingress egress relevant to evidence was “not thereby motion, estab court denied this issue lishing the case.” point appellants’ right as relevant to raise the issue at that gave, cemetery order in the to the case. In *5 of interment the deed in the assertion that as a contention the over the from intrusion prohibit [cemetery] defendant “does the activity.” This necessary . useful . . for maintenance and other “in such expected the knew only appellee statement can indicate ever, appellee in case. At no time the trusion” to be issue the by from the trial been grounds on that the issue had eliminated order, of desecra the evidence pretrial object from to omission the offer an thought to the third trial when the tion. On For all amendment, by was said it against a word record, “surprise” when the appellee’s only in came appears that ap for the directed verdict trial court refused the amendment and has, until truth, appellee pellee never on desecration issue. by its omis issue was from case appeal, contended the removed Hagger v. pretrial from the order. See sion 118); Properties, v. Titan Dobbs 419); Corp., v. Gen. Motors Gurin (1) (318 on that it the evidence thought contention prove representing
was admitted for the fraud of damages religious present that a such feature without intention statue or other perform, by is not indication logical unsupported record. pleadings,
We conclude raised in the issue of desecration order, by though pretrial omitted fact admitted from court, proffered the later denial of amendment force, pretrial order was therefore since the failure to without trial, amend as to issues in fact tried affect the results of does not (b); under OCGA 9-11-15 never until appellee moreover specific objection raised a trial of on the issue based order; its omission from pretrial appellee never ex- any “surprise” hibited case the cannot claim it by surprised actual trial of issue since made any it never objection pretrial to it for having been left out of the order.
Therefore, appellant’s proffered the denial of amendment pretrial order and direction of a on the issue verdict error, plead- of desecration having were the issue been raised court, by admitted ings, the trial and never tried pretrial had or- grounds it been eliminated der. appeal, It follows the trial dismissing court erred
and erred in granting a directed verdict on the issue of desecration order, grounds it had eliminated been from trial on denying appellants’ and therefore erred in motion for new ground. granting But court a directed the trial did not err cemetery plot verdict on the fraud in and de- issue of the sale nying ground. a new trial on that Deen, J., P. part. and reversed in Judgment part affirmed J., Pope, concur. Rehearing.
On Motion “extremely surprised” appellee cemetery says at the of the it is holding as evidence of desecration Division inasmuch *6 grave given, Gallettas court said was never and inasmuch as the anybody they only were never informed their issue was fraud and claiming desecration. appellee many The makes misstatements of fact. desecration plain- during six times
issue was raised evidence no fewer than cemetery’s presentation, including by tiffs’ president, cross-examination pound 80,000 truck would who admitted that an concrete occupies probably some 34 crush a vault. The matter of desecration cemetery pages appeal Furthermore, in its at least. brief conceded that after the trial court denied its motion keep people walking graves limine to material out evidence of on being placed graves, evi- on “the Gallettas offered such dence.” misleading appellee cemetery
It is to contend as fact that transcript pages “plaintiffs’ theories,” in 25 of discussion about plaintiffs theory . . . never “informed the court . . . that their actually appellant . . . or even desecration. never mentioned during argument [which] hinted at the issue of desecration cen- proved [sic] tered on whether the had rescission and appellee’s If fraud.” counsel realized that desecration was an is- had certainly argument ap- sue, he would have addressed it his on the pellee’s motion for directed verdict.
Having pleadings, having made an issue of desecration won right having it, the without needed to do to to admit evidence of admitted the evidence
pertinent objection, informing plaintiffs this was all the pursue “surprise” their for desecration. This claim appellee professes appeal appears below, on nowhere the record not plaintiffs pre-trial amendment; even when the offered their but hav- ing mutely observing plaintiffs put instead sat the issue evi- appellee anybody, dence, the is bound to know it better can- possibly surprise. claim appellee plaintiffs allegedly to, The discussion refers where made “judicial they only claiming a during fraud, admission” that were occurred argument appellee’s
the hour of motion for directed verdict solely point plaintiffs had, based on the fraud count. The was whether (since made, or had a claim for fraud or a claim for breach of contract contract). plaintiffs had not rescinded the stated their claim fraud; was for this was the thing discussed because this was the only ground upon appellee which the had moved for directed verdict. up plaintiffs It was not hint or mention during desecration this argument about fraud and rescission. Desecration was raised pleadings times; many appellee evidence if the be- lieved, claims, as it now plaintiffs that nevertheless the had waived or abandoned order, the issue having put pre-trial omitted to it in the then up it was to object to it and move for directed verdict on the desecration issue. appears
It was so taken up with the fraud issue that it failed to notice offered, when desecration evidence was why be it object. then, failed to But if when the plaintiff-appellants first desecration, raised evidence of had grounds the issue was pre-trial order, plaintiffs, having put it in their complaint, would have moved to oversight, correct that clearly there would have been no reason then not to conform the pretrial order under By 9-11-16. thus seizing tricky advantage not objecting, the appellee effect, bound which was to allow tried, the issue to be which under provisions of OCGA (b) would operated have to conform pre-trial order even if the issue never had been raised in complaint.
The remainder merely motion repeats ques- *7 tions already decided in opinion, disputes authority in a manner similar to its description of the proceedings.
Motion rehearing denied. for Decided November
Rehearing denied November
Stephen Yekel, R. appellants.
Stanley Karsman, M. Smith, David R. 75306, 75307. LEADER NATIONAL INSURANCE COMPANY MARTIN; and vice versa.
Banke, Presiding Judge. Martin sued Leader National Company seeking Insurance re- optional cover personal (“no-fault”) injury protection alleg- benefits edly due him pursuant policy to a of motor vehicle accident insurance and, issued to his addition, wife statutory recover a bad-faith penalty attorney fees based on Leader’s in paying the claim. Leader liability, denied contending that there had been no optional election of coverage Martin’s wife and that the statute of