author: Andrews, Judge.

text:
    A91A1226.
    FOWLER v. THE STATE.
    (411 SE2d 335)
   Andrews, Judge.

Fowler was tried by a jury and convicted of trafficking in cocaine, possession of cocaine and possession of a firearm during the commission of a felony.

1. In his first enumeration of error, Fowler argues that the trial court erred in overruling his motion to suppress. In reviewing a trial court’s ruling on a motion to suppress, the evidence is construed most favorably to uphold the trial court’s findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

Viewing the evidence here in this favorable light, the facts were that a team of undercover officers planned to buy cocaine from a man named Grant Purdue on October 13, 1989. Prior to the drug transaction, the investigating detectives were certain only that Purdue would sell the cocaine, though the team was aware that an “older white man” was involved in the drug business and might be present for the transaction. The detectives arranged to meet Purdue on a designated dirt road leading to a public dumpster, approximately 80 yards off the main road at 9:30 a.m. to exchange the drugs and money.

At 9:30 a.m., Purdue appeared in his car on the designated dirt road, followed closely by Fowler, a 69-year-old white man. Purdue drove to the meeting place near the dumpster and got out of his car. Meanwhile, Fowler parked his car on the edge of the dirt and paved roads, so that his car partially blocked the roadway. Fowler got out of his car and watched the ensuing transaction between Purdue and the detectives.

After Purdue pulled the cocaine from under the hood of his car, the undercover officers arrested him. As this happened, Fowler began running to his car and one of the detectives chased him. The detective identified himself and yelled to Fowler to stop, but Fowler ignored the officer’s request. Fowler got into his vehicle and cranked the engine. At that point the detective ran alongside Fowler’s vehicle and again stated: “sheriff’s department, shut your car off, get out of your car.” In response to this command, Fowler turned the ignition off and got out of his vehicle as the officer had directed him to do.

After Fowler was out of the car, the detective instructed him to put his hands on the back of the car at which time he observed that both of Fowler’s back pockets appeared to have large objects in them. In the ensuing search, a gun and a pocketknife, on which was residue from cocaine, were found.

Fowler claims that the search was constitutionally impermissible in that the requirements for a stop and frisk were not met here under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The State argues that the search was constitutionally permissible since it was made pursuant to a lawful arrest, an argument with which we agree.

Under OCGA § 17-4-20 (a): “[a]n arrest for a crime may be made by a law enforcement officer . . . without a warrant if the offense is committed in his presence or within his immediate knowledge; if the offender is endeavoring to escape ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.” “The constitutional validity of an arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at the moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.” (Citations and punctuation omitted.) Manzione v. State, 194 Ga. App. 227, 228-229 (390 SE2d 121) (1990).

Here, the evidence indicated that based on a previous conversation with Purdue, the officers were aware of “an older white man’s” involvement in the drug transaction. Fowler’s arrival with Purdue at the hidden drug transaction location affirmed the information that an older white man was involved in the drug deal. Furthermore, Fowler positioned his vehicle so as to partially block any exit that the officers may have had and stood in the middle of the dirt road where he could act as a lookout. These facts in conjunction with Fowler’s attempt to leave the scene at the time of Purdue’s arrest supported the trial court’s finding that the police had probable cause on which to arrest him. See Scott v. State, 193 Ga. App. 74 (387 SE2d 31) (1989); State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989); Banks v. State, 187 Ga. App. 280, 282 (370 SE2d 38) (1988). Because probable cause existed for Fowler’s arrest, we need not address the issue of whether the search would have been permissible had the circumstances warranted merely a limited Terry-type detention. See Scott, supra at 75; see also Paxton v. State, 160 Ga. App. 19 (1) (285 SE2d 741) (1981).

2. In his second enumeration of error, Fowler contends that the trial court erred in failing to grant his motion for a directed verdict of acquittal. “ ‘The statutory standard for application by a trial court to decide a motion for a directed verdict of acquittal is “(w)here there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal” . . .’ the court may so direct a verdict. Maddox v. State, 170 Ga. App. 498, 499 (1) (317 SE2d 617) (1984); OCGA § 17-9-1 (a). ... It is not error to refuse to direct a verdict when, ‘viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Wright v. State, 253 Ga. 1, 3 (1) (316 SE2d 445) (1984); Lee v. State, 247 Ga. 411, 412 (6) (276 SE2d 590) (1981).” Thompson v. State, 175 Ga. App. 645, 646 (1) (334 SE2d 312) (1985). Viewing the evidence with these principles in mind, we find that the trial court did not err in denying the motion for directed verdict. Further, we find that there was ample evidence for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Fowler argues in his third enumeration of error that the trial court erred by questioning one of the State witnesses regarding his experience in fingerprinting analysis in that the judge appeared to bolster the state’s case and that the series of questioning infringed upon his cross-examination of the same witness. We find no merit in this enumeration.

First, we find no evidence that the court’s questioning curtailed Fowler’s cross-examination of the witness. Furthermore, a judge has the right to propound questions to develop the truth of the case and the extent of such examination is a matter within the trial court’s discretion. Dixon v. State, 196 Ga. App. 15 (10) (b) (395 SE2d 577) (1990). We have read the excerpt carefully and find no expressions or intimations of opinion regarding the evidence in the questions. They were addressed to relevant issues with a view of assisting the jury to ascertain the truth. Dixon, supra at 15.

4. Finally, Fowler contends that the trial court erred in failing to grant his motion for a mistrial based upon improper prosecutorial closing argument. During such argument, Fowler objected and moved for a mistrial. The judge sustained the objection and gave curative instructions to the jury, but denied the motion. Fowler argues that the instructions were inadequate to undo the harm created by the argument and that counsel should have been rebuked and a new trial granted.

The portion of the State’s argument to which Fowler objects was during the prosecutor’s explanation of Purdue’s change in testimony at trial from an earlier statement in which he had implicated Fowler in the drug transaction. The State’s attorney argued: “Let me get back to Grant Purdue’s motive [for changing his account of Fowler’s involvement at trial]. So do you think for a second, Grant Purdue would get up here, the runner, and finger the big guy and say that’s my man, that’s the guy I got the cocaine from. No, because the consequences are a lot worse if you finger the big guy than if you just said I want to go to jail. You turn in the Elmer Fowlers and the Elmer Fowlers are going to get you and they’re not going to do it through the legal system. They’re going to do it on their own.”

First, Fowler’s argument that the court’s failure to rebuke counsel constitutes error is misplaced, since the court’s subsequent instruction to the jury to disregard the improper remarks amounted to a rebuke of counsel. See Martin v. State, 196 Ga. App. 145 (395 SE2d 391) (1990).

Fowler argues that a mistrial pursuant to OCGA § 17-8-75 was demanded since the curative instruction did not suffice to remove the prejudice created by the improper argument. We do not agree. “Counsel is permitted, in the sound discretion of the court, to argue all reasonable inferences and deductions which may be drawn from the evidence. . . .” (Citations and punctuation omitted.) Davis v. State, 178 Ga. App. 357, 359 (343 SE2d 140) (1986). Although Fowler did not testify, the State’s argument was an attempt to explain Purdue’s conflicting statements. Nevertheless, assuming without deciding that such argument was improper, careful scrutiny of the transcript before us indicates the court’s curative instructions were sufficient to remove any prejudicial effect of the argument and the court did not err in denying the motion for mistrial.

Decided October 7, 1991.

Bruce S. Harvey, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Peter J. Skandalakis, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A91A1308.
    SHROPSHIRE v. THE STATE.
    (411 SE2d 339)
   Andrews, Judge.

Shropshire was tried by a jury on charges of possession of cocaine with intent to distribute, possession of marijuana and possession of a firearm during the commission of a felony. The jury returned a verdict of guilty on the first count, not guilty on the second and third counts, and Shropshire appeals. In his sole enumeration of error, Shropshire claims that the evidence to convict him was insufficient as a matter of law.

Viewing the evidence in the light most favorable to the verdict, the facts showed that at 3:00 a.m. on December 26, 1989, Shropshire was seated in the front passenger seat of a vehicle owned and driven by his cousin, co-defendant Elkins, when the vehicle was stopped by officers of the Chattooga County Sheriff’s Department for running another vehicle off the road and for speeding. When the officers stopped the vehicle, Elkins got out of it and potato chips fell from his lap. Shropshire remained seated in the car. In response to the officer’s inquiry, Elkins gave the name “Kevin Jackson,” the name of another cousin of Shropshire’s, and consented to a search of the vehicle. During the ensuing search the officers found five marijuana cigarettes in an ashtray which was located in the middle of the dashboard, a plastic bag containing marijuana and cigarette rolling papers in the console between the driver and passenger seat, and crack cocaine on the floorboard behind Shropshire. After being taken into custody, Elkins informed the officers that a gun was hidden in the potato chip bag behind the driver’s seat.

Testimony at trial indicated that the 1.7 grams of crack cocaine found in Elkins’ vehicle was the equivalent of 170 doses and was prepared for distribution. An arresting officer testified that there were 17 small rocks of the crack cocaine, three of which were lying on top of the floorboard carpet behind the passenger’s seat when the vehicle was stopped. The remainder of the rocks was found in and around a film canister with the lid slightly open which was hidden under the floor mat behind the passenger’s seat. All of the crack cocaine was within arm’s reach of Shropshire.

At trial, Shropshire claimed that he knew nothing about the cocaine, the marijuana or the gun and that he had been asleep in the car immediately prior to the arrest. Testimony revealed that the results of his urine test were negative for the drug.

We find that there was evidence from which a jury could conclude that Shropshire constructively possessed the cocaine with the intent to distribute it. Possession sufficient to sustain a conviction for possession with the intent to distribute can be actual or constructive. Walton v. State, 194 Ga. App. 490 (390 SE2d 896) (1990). “ ‘A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.’ ” Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989).

Sufficient circumstantial evidence was presented at trial to establish that Shropshire had at least joint constructive possession of the contraband in the vehicle. See generally Moody v. State, 126 Ga. App. 108 (189 SE2d 889) (1972). There was evidence from which a jury could conclude that the crack cocaine was visible, and that Shropshire had access to it and the power to exercise control over it. Additionally, the drug and the gun were hidden in a manner consistent with being hastily hidden and “ ‘(w)here transactions involving relatives are under review[,] slight circumstances are often sufficient to induce a belief that there was collusion between the parties.’ ” Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985); Gabbidon v. State, 184 Ga. App. 475 (361 SE2d 861) (1987). Based on these facts, we find Shropshire’s reliance on Llaguno v. State, 197 Ga. App. 789 (399 SE2d 564) (1990); Cochran v. State, 190 Ga. App. 884 (380 SE2d 319) (1989); Oldwine v. State, 184 Ga. App. 173 (360 SE2d 915) (1987); and Shirley v. State, 166 Ga. App. 456 (304 SE2d 468) (1983), misplaced. Furthermore, evidence regarding both the division and the quantity of the crack cocaine gave rise to an inference that Shropshire had the intent to distribute it. Allen, supra at 625; see OCGA § 16-13-30 (b).

Decided October 7, 1991.

McCamy, Phillips, Tuggle & Rollins, Stephen A. Williams, for appellant.

Ralph Van Pelt, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

In conclusion, the evidence was sufficient for a rational trier of fact to have found Shropshire guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A91A0752.
    COLE et al. v. LUCAS.
    (411 SE2d 284)
   Pope, Judge.

Plaintiff Marjorie Lucas filed a complaint for damages and injunctive relief against defendants William and Peggy Cole alleging, inter alia, that the boundaries of her land lot were as described in the survey plat attached to her complaint and that defendants had trespassed and encroached upon her property and torn down fence posts which she had erected on her property in an attempt to build a fence. A default judgment was entered against defendants and we granted their petition for discretionary appeal.

The record shows the complaint was served upon defendants April 14, 1988. No answer was filed within the 30-day period required by OCGA § 9-11-12 nor within the 15-day extension period provided by OCGA § 9-11-55 (a). A default judgment was entered June 2, 1988, decreeing that the boundaries of plaintiff’s property were as described in plaintiff’s complaint, including the survey plat attached as an exhibit to the complaint; enjoining defendants from trespassing upon plaintiff’s property; and leaving the issue of plaintiff’s damages for trial. The following day an untimely answer was filed by the attorney first representing defendants. In January of 1989, a notice of appearance to represent defendants was filed by a different law firm. It was not until June 14, 1989, over one year after entry of default judgment and six months after the appearance of the defendants’ new attorneys that a motion to open the default judgment was filed. The motion was denied and the issue of damages was tried. Judgment was entered on the verdict awarding plaintiff $1,000 in damages.

1. Defendants argue the trial court erred in denying their motion to open default. Defendants presented evidence that the failure to file a timely answer to plaintiff’s complaint was due to the negligence of their first attorney. They argue they reasonably relied upon their attorney to file a timely answer and should be entitled to open the default. In support of this argument, defendants cite cases in which this court held the negligence of an insurance company to have an answer timely filed should not prevent the insured defendant from opening a default judgment when the defendant timely forwarded the complaint to the insurer. See, e.g., Powell v. Eskins, 193 Ga. App. 144 (387 SE2d 389) (1989).

Assuming, without deciding, that the error or oversight of a defendant’s attorney to file a timely answer to a complaint should be treated the same as that of an insurance company, we hold the trial court did not abuse its discretion in denying the motion to open default in this case. “In cases such as this, no two are alike and each must stand on its own merits. The facts in each case are different and [the court] must look at each in the light of the facts peculiar to that particular case.” Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 756 (240 SE2d 136) (1977). In Powell v. Eskins, supra, and the pertinent cases cited therein, the defaulting defendant acted promptly to open the default upon learning no answer had been filed. Here, however, defendants did not move to open the default judgment until one year after the judgment was entered and six months after they had hired new counsel and presumably knew that the default judgment had been entered. “[W]e hold that the trial judge was entitled to consider this additional delay in determining whether the [defendants’] neglect was excusable. Thus, we cannot conclude that the judge abused his discretion in denying the motion to open the default.” Georgia Farm Bldgs. v. Willard, 170 Ga. App. 327, 330 (4) (317 SE2d 229) (1984).

2. The complaint prayed only for damages and an injunction from trespass. It did not pray for a processioning of the boundary. The default judgment, however, declared the boundary between plaintiff’s lot and defendants’ lot to be the boundary described in plaintiff’s complaint. Defendants argue the default judgment thus violated the provisions of OCGA § 9-11-54 (c) (1) because it was different from the judgment prayed for in the demand for judgment. If a case is in default, however, the plaintiff is entitled to judgment as if every averment of the complaint is supported by proper evidence. OCGA § 9-11-55 (a). Plaintiff’s complaint described the boundary between the two lots and alleged the boundary was properly set forth in the survey plat attached as an exhibit to the complaint. Because they were in default, defendants were estopped from contesting the boundary issue and the trial court did not err in declaring the boundary in the default judgment. See Flanders v. Hill Aircraft &c. Corp., 137 Ga. App. 286 (223 SE2d 482) (1976).

3. Because the trial court did not err in denying defendants’ motion to open the default and did not err in granting default judgment, we find no ground for reversing the judgment entered on the verdict in the trial on plaintiff’s damages.

Decided September 3, 1991

Reconsiderations denied September 19, 1991 and October 8, 1991

Glaze, Fincher & Bray, Kirby A. Glaze, William A. Grabbe, for appellants.

William E. Frey, for appellee.

Judgment affirmed.

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


text:
    A91A0923.
    DOGGETT v. CITY OF MANCHESTER.
    (411 SE2d 288)
   Pope, Judge.

Defendant Johnny Stephen Doggett was convicted of DUI after a bench trial in the Municipal Court of the City of Manchester. He appealed to the superior court, complaining, inter alia, that the municipal court did not obtain a written waiver of jury trial as required by OCGA § 40-13-23 (a). The superior court found that in the absence of a written waiver of jury trial defendant’s conviction must be reversed, and remanded the case to the municipal court to determine if defendant would waive a jury trial. Defendant filed an application for discretionary appeal to this court, which we granted on November 5, 1990.

Defendant contends that the superior court erred in remanding the case to the municipal court because the judgment of that court, obtained without a written waiver of a trial by jury, was void. We agree with defendant that the trial court erred in remanding the case to the municipal court, but not for the reason urged on appeal.

In Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991), our Supreme Court, reasoning that a written waiver of jury trial is a matter of personal rather than subject matter jurisdiction, held that a defendant who fails to raise the issue of or object to a trial without a jury in the probate court waives the right to a jury trial. Id. at (6). “Once it is waived in the probate court, the right to a jury trial may not be raised for the first time on appeal to the superior court, [Nicholson v. State,] id., or to the appellate court, Dossett v. State, 261 Ga. 362 (404 SE2d 548) (1991).” Walton v. State, 261 Ga. 392 (405 SE2d 29) (1991). Although Nicholson, Dossett, and Walton all involve appeals to the superior court from traffic offenses which were tried in probate courts, this court has held that the holding enunciated in those cases “is applicable to all courts granted jurisdiction in OCGA § 40-13-21 (b) to try misdemeanor traffic offenses arising under state law when the defendant waives a jury trial.” Kolker v. State, 200 Ga. App. 72 (2) (406 SE2d 514) (1991). See also Perry v. City of Hampton, 200 Ga. App. 329 (409 SE2d 92) (1991) (in which this court applied this rule to a case in which defendant was originally tried in municipal court for driving under the influence, as was the defendant in this case). Since the record in the case at bar fails to show that defendant objected to proceeding without a jury in the municipal court, the right to a jury trial has been waived. Consequently, the trial court erred in determining that defendant’s conviction must be reversed on that basis and in remanding the case to the municipal court for further determination of the waiver of jury trial issue. Walton, supra; Nicholson, supra.

Decided September 6, 1991

Reconsideration denied October 8, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

Tyron C. Elliott, for appellee.

Judgment reversed.

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


text:
    A91A0963.
    ROGERS v. THE STATE.
    (411 SE2d 289)
   Pope, Judge.

On June 5, 1989, defendant Alfred Livingston Rogers pled guilty in the Superior Court of Chatham County to an accusation charging him with unlawfully possessing a controlled substance, cocaine, on or about April 19, 1989, and was sentenced to four years on probation with drug treatment. The cocaine was discovered along with $9,988 in cash during a search of defendant’s vehicle, a 1970 Oldsmobile Cutlass, when he was stopped while driving west from Savannah on 1-16. On August 8, 1990, a bench warrant was issued by the Superior Court of Dougherty County against defendant for conspiracy to sell and distribute cocaine, a violation of the Georgia Controlled Substances Act. Defendant filed a motion in autrefois convict and plea of former jeopardy on the ground that the substance of the later charge stemmed from the 1989 charge of possession of cocaine for which he had already been convicted and sentenced; and that a second criminal trial for an overt act based upon the same subject matter and criminal conduct would constitute double jeopardy in violation of the Sixth and Fourteenth Amendments of the United States Constitution. After a hearing the trial court entered an order denying the motion, from which this appeal is taken. Held:

Defendant contends that under the general rule in Georgia as stated in Perkins v. State, 143 Ga. App. 124 (237 SE2d 658) (1977), where the only evidence showing a sale of a controlled substance is that used to convict for possession, a conviction of a sale would be barred. He also relies upon Evans v. State, 161 Ga. App. 468, 471 (288 SE2d 726) (1982), for the proposition that it is improper to convict a person of conspiracy of a crime and the crime itself. We do not find these cases to be pertinent to the facts here. In Perkins, the defendant was charged with and convicted of, in subsequent indictments, unlawful possession and unlawful sale of less than an ounce of marijuana. This court held that because the only evidence showing sale was that used to convict Perkins of possession, a conviction for sale was barred under OCGA § 16-1-7 (a) (1). In Evans, the charges were brought under the general conspiracy to commit a crime statute (OCGA § 16-4-8), whereas here defendant was accused of a conspiracy to commit an offense involving a controlled substance (OCGA § 16-13-33).

In the instant case defendant pled guilty to a substantive crime, possession of cocaine, in furtherance of a nonsubstantive crime, the conspiracy to sell cocaine. “In order for conduct to constitute the same transaction, it must be identical both as a matter of fact and as a matter of law. [Cit.] At the outset, we note that possession of an illegal drug is a crime separate and distinct from the illegal sale of that same substance. [Cit.]” Morgan v. State, 168 Ga. App. 310, 311 (2) (308 SE2d 583) (1983). “The totally separate crime described in OCGA § 16-13-33 is given equal punishment status with the crime which is the conspiracy objective. Thus, the legislature has deliberately separated out conspiracies and attempts in connection with certain controlled substances crimes and put them on the same footing. It is not a lesser-included offense, although it has sometimes been referred to as such. [Cits.] It does not come within Georgia’s definition as provided in OCGA § 16-1-6. Proof of conspiracy to [sell and distribute cocaine] is not established by the same or less than all the facts needed for possession [of cocaine]; instead, some different facts are required, such as an agreement.” (Indention omitted.) Rowe v. State, 181 Ga. App. 492, 495 (2) (352 SE2d 813) (1987). Accord Brown v. State, 181 Ga. App. 795 (354 SE2d 3) (1987); see also Bridges v. State, 195 Ga. App. 851 (395 SE2d 30) (1990). Thus, the second prosecution will require proof of facts not required on the prior prosecution for possession of the illegal substance. Morgan, supra. It follows that defendant’s motion was properly denied.

Judgment affirmed.

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

Decided September 6, 1991

Reconsideration denied October 8, 1991.

Beauchamp & Associates, Robert M. Beauchamp, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.


text:
    A91A0992.
    CM3, INC. v. ASSOCIATED REALTY INVESTORS/ PRADO et al.
    (411 SE2d 320)
   Pope, Judge.

This appeal arises from a dispossessory action filed by the plaintiif/landlord Associated Realty Investors/Prado and Synco Properties, Inc., against the defendant/tenant CM3, Inc. The trial court entered judgment in favor of plaintiff and defendant appeals.

1. The sole issue in the case involves the meaning of the renewal clause of the lease. As amended, the renewal clause grants defendant an option “to renew the Lease [for a stated period] without increase in basic rental provided, however, Gross Sales are over $1,850,000 during the period of July 1, 1989. through June 30, 1990.” Defendant operated a restaurant and bar on the premises and does not dispute that gross sales for the pertinent period did not meet the required amount. Nevertheless, defendant attempted to exercise its option to renew the lease, but plaintiff refused the attempted renewal and brought this dispossessory action when defendant held over after the expiration of the lease term.

Plaintiff maintains the gross sales requirement is a condition precedent to the option to renew and because the requirement was not met, defendant had no right to renew and plaintiff is entitled to possession. Defendant argues the gross sales requirement is not a condition precedent to the option but should be construed as defining the terms of the rent upon the exercise of the option to renew. According to the defendant, if the gross sales requirement is not met, then the basic rental term is subject to increase. The only evidence presented concerning what the new basic rental rate would be in the event the gross sales requirement is not met was the testimony of individuals involved in the negotiation of the lease who stated the basic rental rate was to be negotiated between the parties.

In our opinion, the renewal clause is not ambiguous and pursuant to the usual and common meaning of the words and phrases in the clause, the gross sales requirement is a condition precedent to the defendant’s option to renew. Thus, the trial court did not err in granting judgment to plaintiff.

Decided September 19, 1991

Reconsideration denied October 8, 1991.

J. M. Raffauf, for appellant.

Bondurant, Mixon & Elmore, James W. Kimmell, Jr., James C. Morton, for appellees.

2. We reject defendant’s argument that, pursuant to the rules of interpretation of contracts, OCGA § 13-2-2, the gross sales requirement should be construed to qualify the basic rent and not the grant of the option to renew. Even if the renewal clause were to be interpreted as defendant urges, plaintiff would still be entitled to judgment in the dispossessory action because the option to renew would be unenforceable. “A provision for the renewal of a lease ‘must specify the terms and conditions of the renewal . . . with such definite terms and certainty that the court may determine what has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid.’ 51C CJS 171, Landlord and Tenant, § 56 (3) (a). ‘A provision for . . . renewal need not presently fix all of the terms of the new lease; it may furnish a certain and definite method for their ascertainment and determination in the future. On the other hand, if terms, such as duration and rent, are left for future ascertainment, and no method is provided by which they are to be determined, the contract is unenforceable for uncertainty.’ [Cit.]” McCormick v. Brockett, 167 Ga. App. 325 (306 SE2d 344) (1983). See also Krueger v. Paul, 141 Ga. App. 73 (232 SE2d 611) (1977). Thus, even if, as defendant argues, the failure to meet the gross sales requirement merely permitted an increase in the base rent upon renewal, the evidence presented by defendant shows the base rent was left to uncertain future ascertainment, rendering the renewal option unenforceable.

3. “Lastly [defendant] argues he was denied his constitutionally guaranteed right to a jury trial. The right to a jury trial ... is not infringed where, as here, the jury would have no role since there are no issues of material fact in dispute.” Bledsoe v. Central Ga. Production &c. Assn., 180 Ga. App. 598, 599 (4) (349 SE2d 821) (1986). Only if, after the trial court applies the rules of construction to the language of a contract, an ambiguity remains does an issue exist for jury determination. See Copy Systems of Savannah v. Page, 197 Ga. App. 435 (398 SE2d 784) (1990). As discussed in Division 1, the contract language at issue in this case presented no ambiguity and, as a matter of law, plaintiff is entitled to judgment.

Judgment affirmed.

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


author: Carley, Presiding Judge.

text:
    A91A1024.
    BENTON v. DUVALL LIVESTOCK MARKETING, INC. et al.
    (411 SE2d 307)
   Carley, Presiding Judge.

Appellant-plaintiff brought this tort action, alleging that a number of his dairy cows had been converted when they had been auctioned by appellee-defendants. Appellees answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellees and appellant appeals.

1. The evidence, when construed most favorably for appellant, demonstrates the following: Appellant’s cows were, with his knowledge and consent, in the possession and control of one William Scott. Without appellant’s knowledge or consent, however, Scott took the cows and delivered them to appellees to be auctioned. Appellees auctioned the cows and paid the sale proceeds, less a commission, over to Scott. Appellees had no knowledge of appellant’s interest in the cows. On this evidence, appellant urges that a genuine issue of material fact remains as to appellees’ liability for conversion of the cows.

Appellant relies upon the following principle: “[A]n auctioneer who sells property in behalf of a principal who has no title thereto ... or who for other reason has no right to sell such property, is personally liable to the true owner ... for conversion regardless of whether he had knowledge ... of the principal’s lack of title or want of authority to sell, in the absence of . . .an estoppel or . . . acquiescence or consent on the part of the true owner. ...” Anno., 96 ALR2d 208, 212, § 3. There is some question whether this principle is applicable in Georgia. See Lewis v. Jackson, 102 Ga. App. 573 (117 SE2d 209) (1960) (holding that, in the absence of actual knowledge of the vendor-creditor’s interest, an auctioneer has no liability). However, even if this principle does apply in the instant case, appellees would not be liable to appellant for Scott’s conversion if appellant is otherwise estopped to recover against appellee or if appellant acquiesced in or consented to Scott’s conversion.

“When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.” OCGA § 23-1-14. This principle is applicable in conversion cases. See Dealers’ Discount Corp. v. Trammell, 98 Ga. App. 748 (106 SE2d 850) (1958). “[Possession of personal property is presumptive evidence of ownership. . . .” Harris Loan Co. v. Elliott &c. Typewriter Co., 110 Ga. 302 (3) (34 SE 1003) (1900). Thus, by placing the cows in the possession and control of Scott, it was appellant who afforded Scott presumptive evidence of ownership and who enabled Scott to inflict the injury. “ ‘Where an owner has given to another such evidence of the right of selling his goods as, according to the custom of trade or the common understanding of the world, usually accompanies the authority of disposal, or has given the external indicia of the right of disposing of his property, a sale to an innocent purchaser divests the true owner’s title.’ [Cit.] As has been said, this rule is merely a special application of the rule embodied in [OCGA § 23-1-14] that, ‘When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.’ [Cits.]” Cook Motor Co. of Panama City v. Richardson, 103 Ga. App. 129, 130 (2) (118 SE2d 502) (1961). See also Charles Evans BMW v. Williams, 196 Ga. App. 230 (395 SE2d 650) (1990) (construing OCGA § 11-2-403 (1)); Dealers’ Discount Corp. v. Trammell, supra. Compare First Nat. Bank of Cobb County v. Nat. Dealer Svcs., 155 Ga. App. 384 (270 SE2d 911) (1980).

Decided September 13, 1991

Reconsideration denied October 8, 1991

Glover & Davis, Delia T. Crouch, for appellant.

Martin, Snow, Grant & Napier, William H. Larsen, for appellees.

It follows that, in Georgia, the liability of an auctioneer for conversion does not extend to the case, such as this, wherein it is the true owner who originally enabled the auctioneer’s principal to commit the underlying conversion and the auctioneer subsequently acts without knowledge of his principal’s conversion. Under the undisputed evidence of record, no genuine issue of material fact remains and the trial court correctly granted summary judgment in favor of appellees.

2. Remaining enumerations of error are moot.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A91A1411.
    SIZEMORE v. THE STATE.
    (411 SE2d 505)
   McMurray, Presiding Judge.

Defendant was charged in a multi-count indictment with one count of aggravated child molestation (Count 1) and two counts of child molestation (Counts 2 and 3). The case was tried before a jury and defendant was found guilty on all counts. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in allowing evidence of his inculpatory custodial statement.

“ ‘To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.’ OCGA § 24-3-50 (formerly Code Ann. § 38-411).” Johnson v. State, 170 Ga. App. 71, 72 (2) (316 SE2d 160). In the case sub judice, the evidence adduced at a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), reveals that defendant was questioned by a sole detective in an interrogation room at police headquarters; that the interview was conducted at “about 2:15 P.M.” on the day of defendant’s arrest and that defendant did not then appear to be under the influence of drugs or alcohol. The interrogating detective testified that he did not “offer [defendant] any hope, reward or benefit for his statement” and that before questioning he advised defendant of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). Defendant admits that he understood his constitutional rights before questioning and the undisputed evidence shows that defendant did not then invoke his constitutional rights. However, defendant contends that his custodial statement was not free and voluntary because the interrogating law enforcement officer made “a promise to let the defendant see his children [(the victims)] if he would make a statement. ...” This contention is without merit.

The Supreme Court of the State of Georgia has “construed the ‘slightest hope of benefit’ as meaning the hope of a lighter sentence. Caffo v. State, 247 Ga. 751 (279 SE2d 678) (1981).” Cooper v. State, 256 Ga. 234, 235 (2) (347 SE2d 553). In the case sub judice, any promise made to defendant that he could see the victims in exchange for a statement is not a promise or “hope of benefit” which would taint defendant’s otherwise voluntary confession. Cooper v. State, 256 Ga. 234, 235 (2), supra. Consequently, the trial court did not err in allowing evidence of defendant’s custodial statement.

2. Defendant next contends the trial court “erroneously applied O.C.G.A. § 24-9-5 ([b]) when it held that no competency hearing was required for the mentally and behaviorally disturbed adolescent witnesses in this case.”

Defendant filed a pre-trial motion for the trial court to determine the competency of one of the victims of the alleged child molestation. More specifically, defendant alleged that the witness appeared to be mentally retarded and requested that the child’s competence be tested in accordance with OCGA § 24-9-5, which provides, in pertinent part, that “persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.” The trial court denied defendant’s motion based on the terms of subsection (b) of OCGA § 24-9-5, which provides as follows: “Notwithstanding the provisions of subsection (a) of this Code section, in all cases involving . . . child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter.”

Decided September 13, 1991

Reconsideration denied October 8, 1991

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

The trial court was not required to conduct a hearing to determine the competence of the victim of the alleged child molestation as the child’s testimony was admissible under the clear and unambiguous terms of OCGA § 24-9-5 (b). See Sims v. State, 260 Ga. 782 (1) (399 SE2d 924), and Ambles v. State, 259 Ga. 406, 407 (2) (383 SE2d 555). This enumeration is without merit.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

       “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80.


text:
    A91A0948.
    COLLINS v. THE STATE.
    (411 SE2d 341)
   Pope, Judge.

James Lamar Collins was indicted for arson in the first degree, criminal trespass and criminal damage to property in the second degree. He was found guilty of the arson and criminal damage to property charges, and appeals.

1. Defendant contends that the evidence was not sufficient to support his conviction on the arson charge because it was wholly circumstantial and did not exclude every reasonable hypothesis save that of his guilt. The evidence showed that defendant and Annie Mae Rakestraw had dated for some eight months, but began having problems in late 1987. Rakestraw attempted to end the relationship but defendant continued to call her, sometimes three or four times a day. On February 16, 1988, defendant went to Rakestraw’s home “wanting to talk,” but they argued and she made him leave. As soon as he went outside, Rakestraw heard glass break and found the windshield had been broken out of the pickup truck parked in her garage. Defendant admitted breaking out the window in a telephone conversation with Rakestraw later that evening.

Rakestraw testified that the next night, after she had returned from church and put her six children to bed, defendant called four or five times wanting to come by and talk to her. The last time he called at 1:00 a.m. he told her he was coming over, but she removed the phone from the hook and went back to sleep. During the course of their relationship defendant had established a pattern of waking Rakestraw when he came by at night by knocking on her bedroom window, and she would let him in through the kitchen door that opened into the garage. When she heard defendant knocking on her window on the night in question, Rakestraw yelled at him to leave as she was not going to let him in. Shortly thereafter, she heard noises at the kitchen door and called the police, who arrived to find the pickup truck and garage on fire. After they had removed tlje children and Rakestraw’s father from the house, the police found defendant less than two blocks from the scene.

An arson investigator who had been called to the scene testified that the fire was intentionally set by someone using a flammable liquid that left no odor. The fire was started in the cab of the truck and spread into the garage area, causing extensive smoke damage in the house. Defendant admitted breaking the truck windshield on February 16, but denied being present the night of the fire. Another witness testified that he thought he saw Rakestraw’s ex-husband, Nathan Rakestraw, standing across the street watching the fire, but Nathan Rakestraw denied being there or wanting to harm his children. A rebuttal witness testified that she picked Nathan Rakestraw up at work at 1:00 to 1:30 a.m. on February 18, and took him home some distance away.

Reviewing the transcript in the light most favorable to the verdict, we find the circumstantial evidence sufficient to enable any rational trier of fact to find the defendant guilty of arson in the first degree (OCGA § 16-7-60). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 195 Ga. App. 532 (1) (394 SE2d 378) (1990).

2. Defendant’s assertion that the trial court erred in refusing to allow him to preserve the record in regard to the striking of two jurors for non-racially neutral reasons is without merit. The trial court overruled defendant’s objection on the ground that the defense had failed to establish a prima facie case pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), because three black jurors had been chosen and there were only five black persons on the panel of 42 prospective jurors; thus the percentage of blacks on the jury was actually higher than in the panel from which they were chosen. “ ‘Since the percentage of blacks on the jury was, as a result of the use of peremptory strikes, higher than that of the panel from which they were chosen, appellant did not show a prima facie case of discrimination. (Cit.)’ [Cits.]” Ponder v. State, 194 Ga. App. 446, 449 (6) (390 SE2d 869) (1990).

Decided October 8, 1991.

Watson & Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

3. Defendant complains that his motion to reopen the evidence, made after the jury had been in deliberation for several hours, was improperly denied. Defense counsel told the court that Rakestraw stated after she learned that a witness had testified her ex-husband was across the street from her house on the night of the fire that had she known he was there, “she would have recommended to the police that he be arrested as opposed to defendant based on her good faith belief . . . [and her] knowledge of his character.” “However, the trial court is under no duty to reopen the evidence after jury deliberations have been commenced to admit evidence . . . the defendant neglected to present duripg the evidentiary phase of the trial. It is within the discretion of the trial judge to decide ‘whether or not . . . the evidence should be reopened and new evidence admitted.’ [Cit.]” Brown v. State, 188 Ga. App. 282, 283 (372 SE2d 838) (1988). Accord Killens v. State, 184 Ga. App. 717, 721 (5) (362 SE2d 425) (1987). Since the statement which defendant wished to have admitted is of dubious relevance, we find no abuse of discretion.

4. Defendant’s enumeration urging that the State was erroneously allowed to argue facts which were not in evidence cannot be sustained as the alleged improper argument does not appear in the record. This court has reiterated on numerous occasions that: “[e]rror must be shown affirmatively by the record, and not by mere recitations in a brief. [Cits.]” Standridge v. State, 196 Ga. App. 697, 698 (3) (396 SE2d 804) (1990). We find no grounds for reversal.

Judgment affirmed.

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


text:
    A91A0977.
    PRICE v. THE STATE.
    (411 SE2d 343)
   Pope, Judge.

Defendant/appellant William L. Price was convicted of aggravated battery, cruelty to children, simple battery and driving under the influence. He appeals from the denial of his motion for new trial.

1. Defendant contends that the trial court erred as a matter of law when it ruled that the statement he gave the police was freely and voluntarily made, because his intoxication at the time prevented him from making an intelligent and voluntary waiver of his right to remain silent. The trial court held a Jackson-Denno hearing at which the detective who took defendant’s statement testified that he read defendant his Miranda rights, that defendant read the rights himself, and that defendant said he understood them and had no questions. Defendant dictated his statement to the detective and signed each page. The detective made no promises, threats or offers of benefit to induce defendant to make a statement. He knew defendant had been drinking at the time he attacked and beat his wife and four-month-old baby, but defendant did not appear to be intoxicated some 11 or 12 hours later when he was interviewed. Defendant testified at the hearing that when the police told him that his baby was very close to death he started crying and told them what he knew or could remember he had done — that he “just went ahead and made the statement without a lawyer.” At trial, he admitted that he had read the statement and signed each page, and he testified to essentially the same facts, although he claimed that he could not remember much of what he had done.

The trial judge found by a preponderance of the evidence that defendant had been advised of his constitutional rights, that he understood them and voluntarily waived them, and that he thereafter gave a statement freely and voluntarily without hope of benefit or fear of harm, and that the court would let the jury hear the statement and make its own determination as to whether it was in fact voluntary. “A trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless they are found to be clearly erroneous. [Cit.]” Peebles v. State, 260 Ga. 165, 166 (4) (391 SE2d 639) (1990). Since the evidence supports the finding of the trial judge in the instant case, defendant’s statement was properly admitted. Yearwood v. State, 198 Ga. App. 389 (2) (401 SE2d 558) (1991).

2. Defendant complains that the trial court erroneously found that he made a knowing and intelligent waiver of his right to have an attorney present during police questioning. He argues that the trial court’s ruling that he was advised of his constitutional rights and waived them was too generalized and unspecified to show that his assertion he was denied an attorney was considered. Defendant urges this court to adopt the language found in Berry v. State, 254 Ga. 101, 104-105 (n. 6) (326 SE2d 748) (1985), that trial judges expressly “find from a preponderance of the evidence that the defendant was advised of each of his Miranda rights, that he understood them, that he voluntarily waived them, and that he thereafter gave his statement freely and voluntarily without any hope of benefit or fear of injury. (If the defendant denies having been advised of any one of his Miranda rights or says he requested an attorney, specific findings as to the point in controversy should also be made.)”

Decided October 8, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan III, Assistant District Attorneys, for appellee.

In Berry, the issue was not whether the defendant invoked his right to counsel, as both sides agreed that he had, but the purpose for which he requested counsel be present (i.e., for interrogation or just if he took a polygraph test). Moreover, the trial court in Berry “did not expressly find” that the defendant had not invoked his right to counsel. Id. at 104. Here, defendant testified that he had asked for a lawyer when the detective began to interview him, but “finally agreed to go ahead and give the statement” because he wanted to get out of there and go back to sleep. However, the detective who interviewed him testified that although defendant was advised of all his constitutional rights he never invoked any of them, including his right to an attorney. From this conflicting evidence the trial court found, in much of the language suggested by Berry, that defendant had been advised of each of his Miranda rights and had waived them all, which we conclude was sufficiently specific. See Hart v. State, 193 Ga. App. 834 (389 SE2d 400) (1989). “In the absence of evidence of ... a clear abuse of discretion, the findings of a trial court at a Jackson v. Denno hearing will not be disturbed. [Cits.]” Sanborn v. State, 251 Ga. 169, 170 (2) (304 SE2d 377) (1983). There being no such evidence, the trial court’s ruling is affirmed. See Baird v. State, 198 Ga. App. 791 (402 SE2d 802) (1991).

Judgment affirmed.

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


text:
    A91A1125.
    GONZALEZ v. THE STATE.
    (411 SE2d 345)
   Andrews, Judge.

In 1984 Gonzalez was convicted on both counts of a two count indictment for conspiring to traffic in cocaine (count I), and conspiring to traffic in marijuana (count II). He received a sentence of 16 years to serve and a fine of $250,000 on count I, and 10 years to serve and a fine of $25,000 on count II. Both convictions were affirmed on appeal by this court in Gonzalez v. State, 175 Ga. App. 217 (333 SE2d 132) (1985). In November 1990 in the trial court where he was sentenced, Gonzalez filed a motion to vacate the fines. He appeals pro se from the trial court’s denial of the motion.

Decided October 8, 1991.

Guillermo Gonzalez, pro se.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

No issue was raised as to the fines on the previous appeal. The trial court denied the motion stating that it had no authority to modify the sentences after the term in which they were imposed. “[A] superior court judge cannot modify sentence after the expiration of the term of court at which the sentence was imposed. However, if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time.” (Punctuation and citations omitted.) McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263) (1981).

Both of the fines imposed were unauthorized and void. Under OCGA § 16-13-33, the offenses of conspiracy to traffic in cocaine and marijuana are punishable by imprisonment not exceeding the maximum term prescribed for the offenses which were the objects of the conspiracy, but the Code section contains no provision for imposition of a fine. Holbert v. State, 177 Ga. App. 461 (340 SE2d 25) (1986). A fine may be otherwise imposed under OCGA § 17-10-8 on any person convicted of a felony as a condition of probation, but no part of the present sentences was probated so this Code section does not apply. Etchison v. State, 175 Ga. App. 723, 724 (334 SE2d 324) (1985). Since the controlling statute did not authorize imposition of the fines they were void, and this issue was properly raised by the defendant’s motion to vacate the fines. Holbert, supra at 462; Raftis v. State, 175 Ga. App. 893, 898 (334 SE2d 857) (1985).

Accordingly, the trial court erred by denying the motion to vacate. Both fines must be set aside.

Judgment reversed and case remanded for resentencing.

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


text:
    A91A1294.
    SHAW v. THE STATE.
    (411 SE2d 534)
   Andrews, Judge.

While Shaw held the store manager’s family at gunpoint in their residence and robbed them, his accomplice forced the manager to return to the store to open the safe. The manager was able to summon police to the store and foil the attempted armed robbery. When police arrived at the manager’s residence, Shaw tried to escape by abducting family members as hostages. Shaw was convicted by a jury of kidnapping, kidnapping with bodily injury, armed robbery, criminal attempt to commit armed robbery, burglary, and possession of a firearm during the commission of a crime.

1. Shaw contends the trial court erred by refusing to grant his motion brought pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), claiming the state deliberately discriminated against him on the basis of race by using all of its peremptory strikes to exclude blacks from the jury. The state argues that the motion was not timely brought prior to the jury being sworn. State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). The record fails to support the state’s contention. The record shows the jury was “struck, empaneled and seated in the box” prior to the defendant’s motion, but it does not indicate whether they were sworn before or after the motion. Assuming the motion was timely, we find no error. “To establish a prima facie case of purposeful discrimination in jury selection under Batson, a defendant must show that he is a member of a cognizable racial group, that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, that these facts and any other relevant circumstances raise an inference that the prosecutor used the practice of peremptory strikes to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut the defendant’s case merely by denying he had a discriminatory motive. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court will then have the duty to determine if the defendant has established purposeful discrimination.” (Punctuation and citations omitted.) Burgess v. State, 189 Ga. App. 790, 792-793 (377 SE2d 543) (1989). The defendant has the burden to complete the record to establish a prima facie case with information revealing “the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.” Aldridge v. State, 258 Ga. 75, 77 (365 SE2d 111) (1988).

Though not explicitly so stated, we gather from the record as a whole that the defendant is black. However, the only portion of the record disclosing the racial composition of the panel, the racial breakdown of the peremptory strikes, and the racial composition of the selected jury, is in colloquy between defense counsel, the state, and the court during the defendant’s motion. In arguing the motion, defense counsel stated for the record that the state used all ten of its strikes to exclude blacks. The trial court recalled that the jury selected contained nine blacks and three whites. The state contended the jury was composed of ten blacks and two whites, and that the jury panel from which the jury was selected contained 22 blacks and 20 whites. Colloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination. National Assn. &c. People v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957); Johns v. State, 166 Ga. App. 656, 657 (305 SE2d 405) (1983). Shaw did not amend or supplement the record to reflect the necessary facts pursuant to OCGA § 5-6-41 (f), nor do we find any stipulation in the record as to the facts pursuant to OCGA § 5-6-41 (i). Accordingly, Shaw has not carried his burden to show by the record the facts necessary to prove his claim under Batson. Aldridge, supra at 77.

Decided October 8, 1991.

A. Stephenson Wallace, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, As sistant District Attorney, for appellee.

2. In his second enumeration of error, Shaw claims the trial court erred in failing to grant his motion for a mistrial. During testimony by Shaw regarding how one of the victims sustained a cut on her head, the victim shouted, “You lie. You hit me on top of the head.” The trial court denied Shaw’s motion for a mistrial, instructed the jury to disregard the comment, and asked any jury member who did not believe they could disregard the statement to inform the court. No member of the jury indicated it could not disregard the outburst.

Whether a mistrial must be granted under theses circumstances, or whether any prejudice can be cured by instructions to the jury, is ordinarily in the discretion of the trial court. “The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact and/or the jury indicates that it can follow the instructions and will not consider any improper prejudicial statements or testimony.” Crawford v. State, 256 Ga. 585, 587 (351 SE2d 199) (1987). The trial court did not abuse its discretion in denying the motion for mistrial.

Judgment affirmed.

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

       These figures, though not competent evidence and not sufficient to establish a record for appellate review, in any event, fail to establish a prima facie case requiring the state to explain the use of its peremptory strikes. Since they indicate blacks composed 52.4 percent of the jury panel and at least 75 percent of the selected jury, no prima facie case of discrimination is shown. Brown v. State, 261 Ga. 184, 185 (402 SE2d 725) (1991); Ponder v. State, 194 Ga. App. 446, 449 (390 SE2d 869) (1990).


author: Beasley, Judge.

text:
    A91A0830.
    CROW v. NORTHSIDE BUILDING SUPPLY COMPANY.
    (411 SE2d 914)
    Decided September 23, 1991
    Reconsideration denied October 9, 1991.

      Rafe Banks III, for appellant.

      Richardson, Chenggis & Constantinides, George G. Chenggis, Platon P. Constantinides, for appellee.
   Beasley, Judge.

The judgment of the trial court is affirmed in accordance with Court of Appeals Rule 36 (1) & (2).

In the opinion of the Court, the case was taken up for delay only, and ten percent damages are awarded to plaintiff/appellee, which award shall be entered in the remittitur. OCGA § 5-6-6; Prattes v. Southeast Ceramics, 132 Ga. App. 584, 586 (3) (208 SE2d 600) (1974).

Judgment affirmed.

Carley, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1182.
    BROWN v. THE STATE.
    (411 SE2d 286)
   Birdsong, Presiding Judge.

Lauri Jean Brown appeals her conviction for violating OCGA § 40-6-391 (a) (4) by having an alcohol concentration of .12 grams or more within three hours after being in actual physical control of a moving vehicle. The evidence introduced at trial showed that a test of Brown’s blood within three hours of her operation of a vehicle showed she had a blood alcohol concentration of .22.

Brown contends that the trial court erred by denying her motion for a new trial based upon insufficiency of the evidence by denying her motion for a mistrial, by denying her motion for a directed verdict, and by refusing to give certain requested charges. Held:

1. Brown’s allegations concerning the denial of her motion for a new trial and her motion for a directed verdict rely upon a discrepancy between the testimony of the person who drew Brown’s blood and the person who tested the blood at the GBI crime lab. The person drawing the blood testified that she drew two vials of blood, properly sealed the vials with paraffin, labeled the vials with Brown’s name, and put a red stopper on one vial and a grey stopper on the other. The witness from the crime lab testified, however, that although the samples were identified by Brown’s name, both vials he received had grey stoppers. Other witnesses testified about security of the blood while it was stored, and the witness from the crime lab testified that there was no indication that the seal to the vial was broken: “When I received it, the inside seal, which is the paraffin seal was intact, and also the outside was taped.” With this evidence we are satisfied that the State showed to a reasonable certainty that the blood tested at the lab was the same as that drawn from appellant, and that is sufficient. Cook v. State, 255 Ga. 565, 568 (340 SE2d 843).

A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). On appeal a reviewing court can consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). Review of the evidence in this manner reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Brown was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

“The defendant argues that the evidence was close enough as to [her] innocence that the trial court should have exercised its discretion given to it by OCGA § 5-5-21 and granted [her] a new trial. This, however, must be addressed to the trial judge. The law gives to the trial judge alone the authority to grant a new trial for such a reason. This court has no such power.” (Citation and punctuation omitted.) Dixon v. State, 192 Ga. App. 845, 846 (386 SE2d 719).

Accordingly, the trial court did not err by denying Brown’s motion for a new trial and for a directed verdict.

2. Brown contends also that the trial court erred by denying her motion for a mistrial. It is difficult to determine either from Brown’s brief or the trial transcript the precise nature of her complaint, but we are satisfied that the contention is totally without merit. The record shows that Brown’s objections were granted and, as requested by Brown, the jury was instructed to disregard an unresponsive comment by a police officer, and Brown’s motion for a mistrial on that point was not made until some 20 pages later in the record. Therefore any issue regarding this testimony was waived. Further, there was no error in questioning the officer about Brown’s actions at the scene of the accident. Sapp v. State, 184 Ga. App. 527, 528 (362 SE2d 406).

3. Brown also asserts the trial court erred by charging that the prosecution was not required to prove its case to a mathematical certainty. This argument is based upon the portion of most standard charges on reasonable doubt that, “the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty.” Brown’s argument is that since the State was required to prove that she had a blood alcohol content in excess of .12, the State was required to prove her guilt to a mathematical certainty. This argument is without merit. The charge given by the trial court instructed the jury that the State was required to prove each material allegation of the accusation and every essential element of the crime beyond a reasonable doubt before Brown could be convicted of the charge. We are satisfied that the jury was not misled by the language complained of by Brown.

Decided September 4, 1991

Reconsideration denied October 9, 1991

Billy L. Spruell, Brian M. Dubuc, for appellant.

Gerald N. Blaney, Jr., Solicitor, Rosanna Musengo, Assistant Solicitor, for appellee.

4. Brown also alleges that the trial court erred by refusing to give her requested charge to the effect that they may consider the credibility or reliability of the evidence regarding the chemical tests of Brown’s blood because Brown disputed the validity of the test. Although Brown apparently intended to dispute the validity of the test, she did not call her expert witness and no other evidence challenging the test was introduced. Accordingly, there was no error in refusing this charge since it was not raised by the evidence. Sun v. Bush, 179 Ga. App. 80 (6) (345 SE2d 85); Todd v. State, 149 Ga. App. 574 (254 SE2d 894).

5. Brown’s argument concerning the failure to give a “two-equal” theories charge is also without merit. Hill v. State, 159 Ga. App. 589, 590 (284 SE2d 92).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1249, A91A1250.
    SCOTT et al. v. THOMPSON et al.; and vice versa.
    (411 SE2d 508)
   McMurray, Presiding Judge.

This is the second appearance of this case before this Court. See Scott v. Thompson, 193 Ga. App. 487 (388 SE2d 371), affirmed Thompson v. Scott, 260 Ga. 164 (393 SE2d 447). The remittitur from this court was received in the trial court on May 24, 1990. On June 20, 1990, a judgment, as to the principal amount of $250,000, was entered and made final pursuant to OCGA § 9-11-54 (b), and the clerk of the trial court was directed to issue a writ of fieri facias in favor of plaintiffs and against all defendants.

Six defendants, Larry Thompson, Linda Thompson, Raymond Moon, William Marett, Claude Surface, and Quinn Machamer (hereafter collectively referred to as the “six defendants”), moved to set aside the judgment entered on June 20, 1990, on the grounds that the judgment was erroneous in that “it does not delineate between joint and several and proportional liability,” and on the grounds that plaintiffs had received from certain defendants the sum of $197,064.38. On November 26, 1990, this motion was granted to the extent it sought to establish proportional liabilities of the various defendants and the judgment entered on June 20, 1990, was superseded to provide that plaintiffs recover in accordance with sums and percentages attributed to each defendant in the order.

A subsequent request for admissions asked plaintiffs to admit the genuineness of a “COVENANT NOT TO SUE AND NOT TO ENFORCE JUDGMENT” between plaintiffs and four defendants, Roman A. Deville, Rosa Dziewienski, Arthur Schraff and Sam Forman, and to admit that pursuant to this agreement plaintiffs had received from the four defendants, and negotiated, checks totaling $197,064.38 which was less than the amounts claimed by plaintiffs under the two promissory notes on which these cases are predicated. There is no indication that the request for admissions was timely answered and the statements therein were subsequently stipulated to be correct by plaintiffs.

On November 15, 1990, the six defendants filed their motion for summary judgment contending that the Covenant Not to Sue and Not to Enforce Judgment executed by plaintiffs and four of the defendants operates as a release as to them. Although there are references to the denial of the six defendants’ motion for summary judgment, the record contains no written order.

Plaintiffs filed a dismissal without prejudice as to defendants Deville, Dziewienski, Schraff, and Forman, on December 14, 1990. Plaintiffs’ case against the remaining six defendants was tried before' a jury on December 17 and 18, 1990. The jury returned a special verdict finding that the Covenant Not to Sue and Not to Enforce Judgment constituted a novation, composition, and release as to the six defendants’ liability on the issues of the capital gains provision, interest and attorney fees. The verdict provided no award for plaintiffs under the capital gains provision of the notes and no interest or attorney fees.

A succession of three or more judgments filed, culminating after various amendments with the judgment now being appealed which denies plaintiffs any recovery for capital gains, interest, and attorney fees, but does not explicitly address the effect, if any, of the jury verdict on the November 26, 1990, judgment. In Case No. A91A1249, plaintiffs enumerate as error various issues arising during the trial on December 17 and 18, 1990. In Case No. A91A1250, the remaining six defendants raise issues concerning the effect of the Covenant Not to Sue and Not to Enforce Judgment, the sums paid to plaintiffs pursuant thereto, and the jury verdict of novation, release and composition, on the six defendants’ obligations under the November 26, 1990, judgment as to the principal amount of the notes. Held:

1. Plaintiffs enumerate as error the trial court’s charge of the substance of a request for admissions which was not introduced into evidence. Requests for admissions and the responses thereto “not being a part of the pleadings in the case and being in the nature of evidence and relating to the proof, must, therefore, before they can be considered by the trior of the facts, be introduced in evidence.” Forsyth v. Peoples, Inc. of Rome, 114 Ga. App. 726, 727 (3) (152 SE2d 713). See also Brooks v. Roley &c. Engineers, 144 Ga. App. 101 (1) (240 SE2d 596). While plaintiffs’ counsel admitted that the request for admissions was correct, this concession did not obviate the requirement that the request for admissions be introduced into evidence before it is considered by the jury. The trial court erred in permitting the jury to consider the request for admissions which had not been introduced into evidence.

2. Plaintiffs enumerate as error the trial court’s refusal to admit into evidence the trial court’s order of November 26, 1990, which divided the judgment of $250,000, for the principal on the note, into portions attributed to each defendant. Defendants’ objection that this evidence was irrelevant is not well founded. In view of the dismissal of four of the original ten defendants, the information contained in the November 26, 1990, order was necessary in order to compute the obligation of the remaining six defendants, whether collectively or individually, under the capital gains provisions of the notes, and for interest and attorney fees. The trial court erred in excluding this evidence. Turner Broadcasting System v. Europe Craft Imports, 186 Ga. App. 286, 289 (4), 290 (367 SE2d 99).

3. The first enumeration presented by plaintiffs contends that the trial court erred in charging the jury as to the defenses of release, novation, compounding, and suretyship, in that all of these defenses were predicated on the Covenant Not to Sue and Not to Enforce Judgment which was not introduced into evidence. This enumeration of error must fail due to the absence of an adequate objection to the charge given. Plaintiffs’ objections to the charge given were accomplished by a reference to their arguments during the charge conference. (While we disapprove of the trial court allowing the incorporation by reference of charge conference arguments as post charge objections, we will not penalize plaintiffs for the use of this procedure. Clemons v. Atlanta Neurological Institute, 192 Ga. App. 399 (1) (384 SE2d 881).) The arguments made by plaintiffs at the charge conference involved references to requests to charge by number, accompanied in some instances by a brief reference to the subject matter of the charges. Since the parties’ requests to charge are not contained in. the record on appeal, we are unable to determine whether the numbered requests mentioned in plaintiffs’ objections at trial are the same charges now enumerated as error. Isaacs v. Williams Bros., 195 Ga. App. 812 (2) (395 SE2d 11); United States Fidelity &c. Co. v. State Farm &c. Ins. Co., 195 Ga. App. 14, 16 (4) (392 SE2d 574); Cooper v. Re/Max North Atlanta, 186 Ga. App. 79, 83 (2) (366 SE2d 328).

Decided September 26, 1991

Reconsideration denied October 9, 1991

Stevens & Gerson, Ronald S. Stevens, for appellants.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Mark A. Johnson, for appellees.

4. The final enumeration of error presented by plaintiffs complains that the form of the verdict is erroneous in that it requires the jury to decide matters of law and not fact. However, after carefully examining plaintiffs’ objection to the form of the verdict, we are unable to find that this issue was presented to the trial court. The failure to raise the issue argued on appeal before the trial court results in a waiver. Fort & Turner Enterprises v. Scrocca, 195 Ga. App. 554, 555 (3) (394 SE2d 364).

5. Both of the enumerations of error presented by the six defendants are predicated on the jury verdict, particularly, the special finding that there had been a novation, release, and composition. This jury verdict is overturned by our holding, in Divisions 1 and 2, finding harmful error during the retrial of the case sub judice. Thus, the contentions raised by the six defendants’ enumerations of error become premature and we may not address these issues which are not ripe for appellate review. Womack Indus. v. B & A Equip. Co., 199 Ga. App. 660, 662 (2) (405 SE2d 880); Riberglass, Inc. v. ECO Chem. Specialties, 194 Ga. App. 417, 420 (3) (390 SE2d 616).

Judgment reversed in Case No. A91A1249; appeal dismissed in Case No. A91A1250.

Sognier, C. J., concurs. Andrews, J., concurs in the judgment only.


text:
    A91A1252.
    HSL/LA JOLLA BELVEDERE ENTERPRISES et al. v. FEDERAL SAVINGS & LOAN INSURANCE CORPORATION.
    (411 SE2d 329)
   Andrews, Judge.

Appellants claim the trial court erroneously confirmed the appellee’s sale of real property by non-judicial foreclosure pursuant to OCGA § 44-14-161. All four of appellants’ enumerations of error argue that there was a lack of competent evidence to support the trial court’s finding that the property sold for at least its true market value at the foreclosure sale.

Appellee foreclosed on its second priority debt deed subject to payment of an existing first mortgage over the property. At the confirmation hearing, appellee presented expert evidence showing the true market value of the property at the time of the foreclosure sale to be $5,100,000. Appellants presented expert testimony that the property had a true market value of approximately $7,000,000. at foreclosure. The attorney who represented appellee at the sale testified that appellee entered the highest bid of $2,223,288. This bid was based on information supplied to the attorney by appellee that the remaining indebtedness on the first mortgage was $2,876,712 which, combined with the bid, equaled the $5,100,000 true market figure used by appellee.

Appellants argue that the attorney’s testimony, and the document from appellee on which he relied for the pay-off figure, were hearsay lacking any probative value, and there was no competent evidence proving the amount of the indebtedness on the first mortgage at the time of the foreclosure sale. Assuming appellants’ hearsay argument is valid, there was other evidence in the record showing the approximate pay-off on the first mortgage. A real estate agent through which the appellants were attempting to sell the property at the time of the foreclosure, and one of the appellants, testified that the remaining indebtedness on the first mortgage at the foreclosure was between 2.8 and 3 million dollars. This evidence, along with evidence of the amount bid at the sale, was sufficient to enable the trial court to conclude that the amount obtained for the property at foreclosure was at least equal to the $5,100,000 market value asserted by appellee.

“In confirmation proceedings, the superior court sits as a trier of fact, and its findings and conclusions have the effect of a jury verdict. It hears the evidence and its findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. What value is, or may have been, is a question of fact to be resolved as others are. In so doing, the superior court is the judge of the credibility of the witnesses and of the weight to be given the evidence. Although appellants present a serious challenge to the means by which the creditor’s expert arrived at his opinion as to value, the expert provided the court with the basis for his opinions. As it appears that his opinion was not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. The superior court . . . had sufficient data in evidence upon which it could apply its own knowledge and ideas so as to derive its own opinion as to the market value of the [property] at the time of the sale.” (Punctuation and citations omitted.) Armstrong v. Cal. Fed. Savings &c. Assn., 192 Ga. App. 508, 509 (385 SE2d 113) (1989). There was no error in the trial court’s failure to grant appellants’ motion for involuntary dismissal pursuant to OCGA § 9-11-41 (b). The evidence was sufficient to support the trial court’s order of confirmation finding that the property sold for at least its fair market value, and that the notice, advertisement and sale were properly conducted. Guthrie v. Bank South, 195 Ga. App. 123, 125-126 (393 SE2d 60) (1990).

Decided September 27, 1991

Reconsideration denied October 9, 1991

Peterson, Young, Self & Asselin, S. Lawrence Polk, Thomas O. Marshall, for appellants.

Glass, McCullough, Sherrill & Harrold, R. Philip Shinall III, L. James Weil, Jr., for appellee.

Judgment affirmed.

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


author: Cooper,. Judge.

text:
    A91A0942.
    AUSTIN et al. v. GREENBERG FARROW ARCHITECTS et al.
    (411 SE2d 346)
   Cooper,. Judge.

On July 2, 1987, Nicky Austin was injured when a roof collapsed on a construction project where he was working. On June 29, 1989, three days before the expiration of the statute of limitation, appellants, Nicky Austin and his wife, filed a professional malpractice complaint against appellees, an engineering firm and an architectural firm, seeking to recover for personal injuries and loss of consortium. Appellants did not file with their complaint, or 45 days thereafter, an affidavit of an expert as required by OCGA § 9-11-9.1. Appellees raised this defect in their first responsive pleading and filed motions to dismiss the complaint. Thereafter, on September 7, 1989, appellants voluntarily dismissed their complaint. On March 6, 1990, appellants filed a renewed complaint pursuant to OCGA § 9-2-61, this time attaching the affidavits of two experts, dated March 2, 1990 and March 6, 1990, respectively. In their first responsive pleading, appellees again raised the affidavit defect and again filed motions to dismiss the complaint on the grounds that appellants were not allowed to refile under the renewal statute due to the initial failure to file the expert affidavits, and therefore the complaint was barred by the statute of limitation. The trial court converted the motions to dismiss into motions for summary judgment and granted summary judgment to appellees.

Appellants contend in two related enumerations of error that the trial court erred in granting summary judgment to appellees because the second complaint filed was a proper renewal of a prior complaint and because the renewed complaint satisfied the pleading requirements of OCGA § 9-11-9.1. We disagree with appellants’ first contention and affirm on the grounds that under the circumstances presented, appellants were not entitled to invoke the renewal statute to avoid the running of the statute of limitation. This case is controlled by Foskey v. Foster, 199 Ga. App. 205 (404 SE2d 303) (1991), in which we considered the question of “whether, prior to the amendment of the ‘expert affidavit requirement’ statute . . . (OCGA § 9-11-9.1 (e), (f) . . . ), a plaintiff could simply file a ‘renewal’ of a . . . malpractice suit by permission of OCGA § 9-2-61. . . .” Id. at 205. OCGA § 9-11-9.1 was amended, effective July 1, 1989 (after the date appellants filed their initial complaint), to add paragraph (f) which provides that a professional malpractice complaint shall not be subject to renewal after the expiration of the statute of limitation if the expert affidavit was not filed with the complaint and if the defendant raises such failure in its initial responsive pleading “unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” “Even prior to the effective date of this enactment, the Supreme Court held in St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989), that the failure to attach an expert affidavit was not a nonamendable defect in the circumstances of that case where plaintiffs had an expert affidavit which defendants had notice of in a prior filing and plaintiffs’ failure to attach an affidavit was merely a matter of ‘neglect.’ ” Foskey, supra at 205. We concluded in Foskey that “the intent of the statute as it existed at the time of this suit was the same as the legislature has now provided in paragraphs (e) and (f), which is ... to cause the dismissal of a malpractice suit where an expert affidavit was not filed, unless such an affidavit had been obtained and the plaintiff by mistake or neglect merely failed ‘to file it.’ [Cit.]” Id. at 206. In Nease, supra, cited by this court in Foskey, the court distinguished between a failure to file an expert affidavit out of mistake or neglect, which is an amendable defect, and failure to obtain the affidavit at the time of filing, which the court speculated may be a fatal defect. It is clear from the record in the case sub judice that appellants did not have the requisite affidavits at the time they filed the initial complaint; the affidavits ultimately filed were dated well after the dismissal of the first complaint. There is no evidence that the failure to file the affidavits with the first complaint was the result of mistake or neglect. In the recent case of Jones v. Bates, 261 Ga. 240 (403 SE2d 804) (1991), the initial complaint was filed prior to the effective date of the amendments to OCGA § 9-11-9.1. No affidavit was filed with the complaint and the complaint was voluntarily dismissed and refiled after the effective date of the amendments. The Supreme Court held that “[u]nder [Nease, supra], Jones could renew this malpractice count only if it were shown that the required affidavit existed at the time of the original suit but was omitted from it by mistake. Accord OCGA § 9-11-9.1 (f).” Id. at 241. In Patterson v. Douglas Women’s Center, 258 Ga. 803 (374 SE2d 737) (1989), cited by appellants, the complaint asserted that the affidavit was attached although it was not. Therefore, Patterson is consistent with the distinction espoused in Nease and does not support appellants’ contention that renewal is available even when the affidavit had not been obtained at the time of the first complaint. See Nease, supra at 155, n. 3. Since appellants had not obtained the affidavits when they filed their initial complaint, they were not entitled to renew the complaint after the expiration of the statute of limitation pursuant to the authority of Nease, Foskey and Jones.

Decided October 9, 1991.

Agnew & Schlam, G. Michael Agnew, Paul E. Schlam, Kelley, Denney, Pease & Allison, John W. Denney, Bradford C. Dodds, for appellants.

Webb & Daniel, Keith Wiener, Gary R. McCain, Linda K. Thompson, Greenfield, Ellis & Bost, John W. Greenfield, Fortson & White, Bruce H. Beerman, Long, Weinberg, Ansley & Wheeler, Alan L. Newman, Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., for appellees.

Due to our conclusion herein, it is unnecessary to determine if OCGA § 9-11-9.1 (f) applies retroactively to this case.

Judgment affirmed.

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


text:
    A91A1105.
    FLOOD v. CAMP OIL COMPANY.
    (411 SE2d 348)
   Pope, Judge.

This appeal arises from the grant of summary judgment to defendant Camp Oil Company in a negligence action brought by plaintiff Virginia Flood for injuries she sustained when she slipped and fell at a convenience store operated by defendant. Plaintiff testified at her deposition that she went to the store to purchase gasoline for her car. She pulled up to a self-service pump island and then went into the store to pre-pay for the gasoline. It was raining and the concrete pavement on the premises was wet. As she walked from the pump toward her car with the nozzle in her hand she slipped and fell, sliding approximately three feet. She testified she was being careful because the water on the pavement “[looked] like it does at any service station. It . . . looked oily, you know, like it had something mixed in with it.” Before she was transported to the hospital by ambulance her son arrived and, according to his affidavit, he observed a large quantity of an oily liquid on and around the pump island which he believed to be diesel fuel. Plaintiff claims she fell because defendant was negligent in failing to keep the premises free from the hazard caused by the diesel fuel mixed with water on the pavement.

Defendant presented the affidavit of the store manager who had been away from the store and drove up to the premises just before plaintiff fell. The manager went to assist plaintiff when she noticed plaintiff sitting on the pavement. According to the manager, she inspected the area where plaintiff had fallen and observed no foreign substance on the pavement. She also attested it was her practice to inspect the premises routinely and to clean up any spills seen by an employee or reported by a customer. On the day in question, she received no reports of spills or foreign substances on the grounds from either customers or employees. Plaintiff submitted the affidavit of the clerk on duty at the store on the day in question. The clerk had been at work for about two hours when plaintiff fell. According to the clerk, her primary responsibility was to operate the cash register inside the store and then to inspect and clean the fuel pump island when she was not otherwise occupied inside the store. On the afternoon in question, she had been too busy operating the cash register inside the store to inspect the fuel pump island. Immediately after plaintiff fell, however, she received reports from several customers that fuel was spilled over the concrete near the pump island. According to the clerk, one of the fuel pumps “was always leaking on and off” and, when so informed by a customer, she would place a sign on the pump indicating it was out of order. Plaintiff’s son also attested he had observed a large quantity of an oily liquid, which he believed to be diesel fuel, on and around the pump island at defendant’s store on a date prior to the day plaintiff fell.

The trial court granted summary judgment to defendant on the ground that the record shows plaintiff possessed knowledge of the allegedly dangerous condition equal to that of defendant. Plaintiff’s statements concerning her observations of the condition of the pavement show she was aware the wet pavement was oily to the degree that wet pavement at any service station could be oily. In this case, however, plaintiff has alleged a particular hazard, in excess to that normally caused by rain water at a service station was created by diesel fuel leaking from a pump. No evidence was presented to show plaintiff had equal knowledge of this hazard. Thus, the facts of this case are distinguishable from those cases cited by the trial court in support of its conclusion that plaintiff is precluded from recovering because of her equal knowledge. See, e.g., Kersey v. C. S. R. A. &c Auth., 195 Ga. App. 94 (392 SE2d 305) (1990) (in which plaintiff alleged no defect or foreign substance, but merely that defendant was negligent in sending her down a stairway while she was carrying a heavy load); Gyles, Inc. v. Turner, 184 Ga. App. 376 (361 SE2d 538) (1987) (in which plaintiff was aware of the discernible object which caused the hazard); Harris v. Star Svc. &c. Co., 170 Ga. App. 816 (318 SE2d 239) (1984) (in which plaintiff knew he was traversing ice and snow accumulated on the premises of defendant gas station). A jury could conclude that the alleged hazard from a leaking diesel fuel pump on wet pavement was greater than the general hazard perceived by plaintiff. It could also conclude, then, that plaintiff’s knowledge of the hazard was not equal to that the defendant had or, in the exercise of reasonable care, should have had. A finding that the plaintiff is precluded from recovering in a slip and fall case because of her own equal or superior knowledge of the hazard is, in essence, a finding that plaintiff’s own negligence preponderated in causing the injury. Cf. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). “The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.” Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (II) (227 SE2d 336) (1976). In our opinion, the issue of plaintiff’s knowledge of the hazard alleged in this case is not so plain and indisputable that it may be decided as a matter of law.

Whether defendant is entitled to summary judgment then depends upon whether defendant presented sufficient evidence to show it had neither actual nor superior constructive knowledge of the alleged hazard. “The evidence of record would appear to be sufficient to show that [defendant] lacked actual knowledge of the [substance] prior to [plaintiff’s] fall. Thus, the ultimate issue to be resolved is whether that evidence would also be sufficient to show that [defendant] had no constructive knowledge of the foreign substance.” Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988).

The evidence is undisputed that no employee of defendant was in the vicinity of plaintiff when she fell. “ ‘Thus, [plaintiff’s] sole avenue of possible recovery is one in which constructive knowledge on the part of [defendant] is premised upon [defendant’s] failure to exercise reasonable care in inspecting and keeping the premises in (a) safe condition. The (issue thus becomes whether the) [affidavit] executed by [defendant’s manager negates] recovery of that theory.’ ” (Citations omitted.) Id. at 254-255. Even though the manager attested it was her practice to inspect the premises routinely, her affidavit does not indicate she inspected the premises at all on the day in question and thus proves nothing. Id. See also Hamner v. Emory Univ., 190 Ga. App. 788 (380 SE2d 83) (1989). Even the undisputed fact that no customer or employee had reported the existence of a foreign substance on the pavement on the day in question would not authorize the grant of summary judgment if, as plaintiff alleges, defendant knew of the propensity of one of its pumps to leak. “The issue is whether, under the existing circumstances, [defendant’s] failure to have discovered the specific foreign substance prior to [plaintiff’s] fall was the result of the breach of [defendant’s] legal duty to inspect the premises. If so, an inference would arise from that breach of [defendant’s] constructive knowledge of the presence of the [foreign substance on the pavement].” Food Giant, supra at 255.

“The burden was, of course, on [defendant] as movant on motion for summary judgment to negate this theory of liability by presenting evidence that it had in fact exercised reasonable care in inspecting the premises. Inasmuch as the evidence submitted by [defendant] on this issue failed to establish that any inspection at all had been made on the day in question, we must conclude that this burden of proof was not met. Thus, the burden never shifted to [plaintiff] to produce evidence that the [foreign substance] had been present on the pavement ... for a period of time sufficient to have been discovered by a reasonable inspection procedure. [Cits.] Although the burden would be on [plaintiff] to present such evidence at trial in order to establish a prima facie case based on the constructive knowledge theory, ‘(o)n a motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party . . . even as to issues upon which the opposing party would have the trial burden. . . .’ [Cit.] Therefore, we hold that the trial court erred in granting [defendant’s] motion for summary judgment.” Boss v. Food Giant, 193 Ga. App. 434, 436 (388 SE2d 37) (1989). See also Parker v. Food Giant, 193 Ga. App. 337 (387 SE2d 615) (1989).

Judgment reversed.

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

Decided October 9, 1991.

William U. Hyden, Jr., Samuel C. Finster, Sr., for appellant.

Shaw, Maddox, Graham, Monk & Boling, Julius Peek, Jr., for appellee.