author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A1813.
    GWINNETT PROPERTY, N.V. et al. v. G+H MONTAGE GmbH. IRVANI v. G+H MONTAGE GmbH. G+H MONTAGE GmbH v. IRVANI et al.
    A94A1814.
    A94A1815.
    (453 SE2d 52)
   Johnson, Judge.

G+H Montage GmbH, a West German company, contracted with an Iranian corporation to construct a storage facility in Iran. Rahim Irvani, who now lives in England, personally guaranteed payment under the contract. After the Iranian corporation defaulted on the contract, G+H obtained a judgment in England against Irvani based on his personal guarantee. G+H filed the instant action in Gwinnett County, Georgia, asking the superior court to recognize the English judgment and alleging Irvani fraudulently conveyed assets to several corporations. The trial court entered judgment on the jury verdict in favor of G+H, but the Supreme Court reversed the judgment. Newton Commonwealth Prop. v. G+H Montage GmbH, 261 Ga. 269 (404 SE2d 551) (1991).

At the second trial, G+H again asked the court to recognize the English judgment, claimed eight corporations are liable for Irvani’s personal debts as his alter egos and alleged the corporations are also liable for receiving the fraudulently conveyed assets from Irvani. The jury returned an $8,030,000 verdict against Irvani and seven of the corporate defendants on the fraudulent conveyances claim. The jury also found one of those seven companies, Granite Industrial Development & Services Corporation (GIDS), liable as Irvani’s alter ego. The jury further awarded G+H a $2,260,000 judgment against Irvani for attorney fees. The trial court entered judgment on the verdict and recognized the English judgment against Irvani. The trial court also ordered G+H to pay the corporate defendants $21,198 as the costs of the first appeal.

The seven corporate defendants held liable jointly appeal from the judgment and the court’s denial of their motion for judgment n.o.v.; Irvani separately appeals. G+H cross-appeals from the order that it must pay the costs of the first appeal.

Case No. A94A1813

1. The seven corporate defendants contend the court erred in denying their motion for judgment n.o.v. on the fraudulent conveyances claim because G+H failed to sufficiently plead or prove that Irvani conveyed any assets to them. G+H argues the decisions in Johnson v. Sheridan, 179 Ga. App. 331 (346 SE2d 109) (1986) and Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360 (223 SE2d 757) (1976), support the proposition that it need not identify any specific conveyanees from Irvani to the corporate defendants. On the contrary, Johnson and Cotton undermine G + H’s proposition because in both of those cases specific conveyances are identified. Moreover, in each of the Georgia fraudulent conveyances cases relied upon by the parties, there is proof of a specific conveyance by the debtor to the transferee. See, e.g., Merrell v. Beckwith, 263 Ga. 779 (439 SE2d 488) (1994); Lawson v. Athens Auto Supply &c., 200 Ga. App. 609 (409 SE2d 60) (1991).

“[OCGA § 9-11-9 (b)] requires that in all averments of fraud, the circumstances constituting the fraud must be stated with particularity. It is generally recognized that this exception to the general liberality of pleading . . . requires that facts must be alleged which if proved would lead clearly to the conclusion that fraud had been committed. . . . The circumstances constituting the alleged fraud must be pleaded with sufficient definiteness to advise the adversary of the claim which he must meet.” (Citations and punctuation omitted; emphasis in original.) Continental Invest. Corp. v. Cherry, 124 Ga. App. 863, 865 (2) (186 SE2d 301) (1971). In a fraudulent conveyances claim asserted under OCGA § 18-2-22, the requirement that fraud be pled with particularity mandates that the claimant identify a specific conveyance with sufficient definiteness to advise the adversary of the conveyance which it must explain. See generally Leachman v. Cobb Dev. Co., 226 Ga. 103, 104 (1) (172 SE2d 688) (1970). The claimant must aver a transfer of the property in question by the debtor to the alleged grantee, specify the time of the transfer and describe the instrument by which the alleged fraudulent conveyance was accomplished. 37 CJS, Fraudulent Conveyances, § 359.

In the instant case, G + H has not identified any specific conveyances from Irvani to the corporate defendants; rather, G + H relies on the broad allegation that $30,000,000 to $38,000,000 has been invested in or loaned to the defendant companies from sources controlled by Irvani. Within this alleged $30,000,000 to $38,000,000 range, G+H has not identified the time, place, method or amount of any specific conveyance made by Irvani to a particular corporation. G+H’s broad allegation of fraudulently conveyed money is insufficient because it does not advise the corporate defendants of any particular conveyances they must defend. Moreover, without specified conveyances, the jury could not possibly have known what transfers were at issue, let alone have made a valid determination as to whether a transfer was fraudulent. G+H’s allegation of fraudulent conveyances is so broad that it amounts to nothing. See generally Collins v. Manley, 223 Ga. 816, 817 (158 SE2d 235) (1967).

In attempting to prove its overly broad allegation of fraud at trial, G+H lumped together hundreds of transactions and essentially challenged the entire financial history of the corporate defendants as a whole, rather than as separate entities. G+H failed, however, to present any evidence of a specific conveyance by Irvani to any of the corporate defendants. The one piece of direct evidence cited by G+H is a document in which Irvani states he and his sons injected money and effort into Georgia Industries, Inc., one of the corporate defendants. This document may be construed as evidence that Irvani at some time and in some way conveyed some amount of money to Georgia Industries, but it does not show that Irvani conveyed money to any of the other corporate defendants. Even as to Georgia Industries, the document is insufficient proof of any particular conveyance. The document does not specify a conveyance and G+H has not pointed to any other evidence in the record clarifying what conveyance is referred to in the document.

G+H also argues there is circumstantial evidence from which the jury could have inferred Irvani conveyed assets to the corporate defendants through his wife and her corporation, Savoy Investments. “The standard for reviewing the legal sufficiency of circumstantial evidence . . . can be stated as follows: While in such cases the sufficiency of the evidence is for the jury, yet before there is, in legal contemplation, any evidence, the circumstances shown must, in some appreciable degree, tend to establish the conclusion claimed.” (Citation and punctuation omitted.) Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232, 233 (367 SE2d 539) (1988). Contrary to G+H’s argument, the circumstances in the current case do not in some appreciable degree tend to establish G+H’s conclusion that Irvani conveyed money to the defendant corporations through his wife and Savoy. In attempting to reach this conclusion, G+H relies primarily on circumstantial evidence that $38,000,000 was transferred to the corporate defendants; that the defendants claim most of the money was transferred to them by Savoy and the rest by Irvani’s wife and sons; that Irvani’s wife and sons did not have access to $38,000,000, but only to approximately $18,000,000; and that Irvani himself originally set up the corporate defendants and has sufficient assets to have funded the conveyances to them. This evidence at most leads to the mere inconclusive inference that Irvani could have transferred money to his wife and Savoy, who then conveyed the money to the corporations.

“[W]here there is uncontradicted testimony by a party as to a certain fact . . . then the opposing party must produce ‘some other fact’ to the contrary. ... If the ‘other fact’ is shown directly, that is sufficient for the case to go to a jury, but if it is circumstantial then it must be evidence sufficient to support a verdict. The circumstantial evidence must be inconsistent with the direct testimony and must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions . . . the evidence must not constitute a ‘mere inconclusive inference’ for then it is insufficient to withstand summary adjudication.” (Citations and footnote omitted.) Cohen v. Hartlage, 179 Ga. App. 847, 850 (348 SE2d 331) (1986). The corporate defendants in this case presented direct testimony that Irvani did not convey any money to them, but that Savoy and Irvani’s wife and sons made the conveyances. G+H’s circumstantial evidence showing that Irvani’s sons and wife did not have the assets to convey the entire $38,000,000 to the corporations is inconsistent with the corporations’ direct evidence. If G+H’s ultimate conclusion were that Irvani’s sons and wife did not have the resources to make all of the conveyances, then G + H’s circumstantial evidence would be sufficient to create a jury question as to that conclusion. G+H, however, goes a step beyond that conclusion and attempts to infer from the evidence that Irvani himself conveyed the money to the corporations through his wife and Savoy. The circumstantial evidence in this case does not tend to establish this extra inference while rendering less probable the inconsistent conclusion that Irvani is not the source of money for his wife and Savoy. See generally Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780-783 (257 SE2d 186) (1979).

The inconclusiveness of G + H’s attempted inference is especially true because the record is devoid of any evidence that Rahim Irvani was the source of Savoy’s assets. G+H’s own expert accountant refused to express an opinion that Irvani in fact transferred money to the corporations; the expert instead stated he had seen no direct evidence of any money transferred from Irvani to the corporations and he could not say whether Irvani indirectly transferred money to them through Savoy because he could not determine the source of Savoy’s assets. “[Liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. . . . [A]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. . . . [N]o inference of fact may be drawn from a premise which is wholly uncertain.” (Citations and punctuation omitted.) Cohen v. Hartlage, supra at 851. The inference that Irvani fraudulently conveyed money to the corporate defendants is wholly speculative and cannot be reasonably drawn from the circumstantial evidence relied upon by G+H.

G+H further argues that circumstantial support for its fraudulent conveyances claim is also found in the corporate defendants’ conflicting explanations of the source of their assets and in the defendants’ reliance on oral testimony instead of corporate records to explain their funding. These circumstances are not, however, proof of any specific fraudulent conveyances; rather, they are “badges of fraud” from which the jury might have inferred thát a particular conveyance, once identified, was fraudulent. See, e.g., Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 28 (174 SE 708) (1934); Threlkeld v. Whitehead, 95 Ga. App. 378, 389 (98 SE2d 76) (1957). Because G + H has not identified or offered proof of any specific conveyance, the issue of fraud is not even reached.

A judgment n.o.v. is authorized only where there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions therefrom, shall demand a particular verdict. Lawson v. Athens Auto Supply &c., supra at 613 (5). In the instant case, there is no evidence from which the jury could have reasonably inferred that a specific conveyance from Irvani to any of the corporate defendants was made, let alone fraudulent. The evidence therefore demands a verdict in favor of the corporate defendants on the fraudulent conveyances claim and the trial court erred in denying their motion for judgment n.o.v.

2. GIDS contends it is entitled to judgment on the claim that it is liable as Irvani’s alter ego. “To establish the alter ego doctrine it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.” (Citations and punctuation omitted; emphasis supplied.) Farmers Warehouse of Pelham v. Collins, 220 Ga. 141, 150 (2) (d) (137 SE2d 619) (1964); Marett v. Professional Ins. Careers, 201 Ga. App. 178, 180 (1) (b) (410 SE2d 373) (1991). Here, the uncontroverted evidence shows Irvani owns no stock in GIDS. Granite Holdings, Inc., another corporation in which Irvani has no ownership interest, is the sole GIDS stockholder. G+H concedes Irvani does not own any GIDS stock, but theorizes he actually controls and benefits from GIDS, while Granite Holdings is merely its nominal owner. This theory is not supported by sufficient evidence and therefore amounts to mere speculation. Because Irvani is not an owner of GIDS, the alter ego doctrine is inapplicable to this case.

Furthermore, G+H has improperly reversed the use of the alter ego doctrine. That doctrine is generally used for the purpose of piercing the corporate veil to hold an individual stockholder liable for debts incurred by the corporation. Southern Environmental Group v. Rosebud Landscape Gardeners, 196 Ga. App. 392, 394 (1) (395 SE2d 913) (1990). Here, G+H has asserted the alter ego theory, not to reach Irvani by piercing the corporate veil, but to hold GIDS liable for Irvani’s personal debt. In asserting its reversed alter ego claim, G+H relies on much of the same evidence it cites in support of its fraudulent conveyances claim. This reliance on the same evidence reveals that G+t[ has not asserted a proper alter ego claim, but has simply recast its fraudulent conveyances theory under the guise of the alter ego doctrine. The trial court erred in denying GIDS’ motion for judgment n.o.v. as to the alter ego claim.

3. Because of our holdings in Divisions 1 and 2, we need not address the corporate defendants’ remaining arguments.

Case No. A94A1814

4. Irvani asserts the trial court erred in denying his motion to dismiss the claims against him for lack of personal jurisdiction.

(a) G + H argues the court had personal jurisdiction over Irvani under OCGA § 9-10-91 (2), which provides a Georgia court may exercise personal jurisdiction over any nonresident who commits a tortious act or omission within this state. G+H’s argument is premised on its claims that Irvani fraudulently conveyed assets to some of the corporate defendants located in Georgia and that his alter ego, GIDS, committed tortious acts in Georgia. As discussed above in Division 1, there is no evidence that Irvani fraudulently conveyed assets to the corporate defendants. Likewise, as addressed in Division 2, G+H did not assert a proper alter ego theory and the jury’s verdict that GIDS is Irvani’s alter ego cannot be sustained. Consequently, G+H’s argument is without merit and OCGA § 9-10-91 (2) provides no basis for the court’s exercise of personal jurisdiction over Irvani.

Alternatively, G+H claims the court had jurisdiction over Irvani under OCGA § 9-10-91 (4), which provides a Georgia court may exercise personal jurisdiction over a nonresident who owns, uses, or possesses any real property situated within this state. G + H avers there is evidence from which the jury could have found Irvani and his alter ego, GIDS, own property in Georgia. Again, G+H’s reliance on the claim that GIDS is Irvani’s alter ego is without merit and cannot support a finding that Irvani owns property in Georgia through GIDS. Contrary to G+H’s claim, it has pointed to no competent evidence that Irvani personally owns or possesses any property in Georgia.

Moreover, even if there were evidence that Irvani owns property in Georgia, it would not provide a basis for the court’s exercise of personal jurisdiction over him. “ ‘[U]nder the provision of our Long Arm Statute referring to the ownership, use or possession of Georgia realty, jurisdictional requirements are satisfied when a substantial connection or nexus exists between the basis of the controversy and the property within this state.’ [Cit.]” Edelschick v. Blanchard, 177 Ga. App. 410, 411-412 (2) (339 SE2d 628) (1985). Because there is no evidence of the alleged fraudulent conveyances which form the basis of this controversy, there can be no proof of a substantial nexus between that basis and any property in the state.

“The rule that controls is our statute, which requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction. Where, as here, it is shown that no such acts were committed, there is no jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513) (1987). Accordingly, the trial court erred in denying Irvani’s motion to dismiss the fraudulent conveyances claim.

(b) As to G+H’s action for the court to recognize the English judgment, whether the court had personal jurisdiction over Irvani is irrelevant. “Once it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter. Thus if it can be shown that the defendant has property in this state, there would be no difficulty in enforcing the [foreign] judgment against him here. Personal jurisdiction over the defendant would, of course, not be required.” (Punctuation omitted.) Williamson v. Williamson, 247 Ga. 260, 262-263 (2) (275 SE2d 42) (1981). Although Williamson involves the domestication of a judgment from another state, we see no reason why it should not apply to an action under OCGA § 9-12-110 et seq., seeking recognition of a judgment from another country. Thus, the court here properly recognized the English judgment if Irvani has any property in Georgia.

G+H again relies primarily on its fraudulent conveyances and alter ego claims to assert that Irvani has property in the state. Because we have decided those claims adversely to G+H, they provide no basis for concluding that Irvani has property in Georgia. G+H has also failed to show evidence that Irvani has any particular piece of property in the state which could satisfy his debt. The trial court therefore erred in recognizing the English judgment and in denying Irvani’s motion to dismiss.

Case No. A94A1815

5. G+H contends the trial court erred in computing the amount of appeal costs it must pay the corporate defendants for obtaining a reversal of the first trial. “If there is a judgment of reversal, the appellant shall be. entitled to a judgment for the amount of the costs in the appellate court against the appellee as soon as the remittitur is returned to the court below.” OCGA § 5-6-5. The cost of having a transcript prepared by the court reporter is an “expense of appeal” and such expense is not recoverable as a “cost of appeal” by an appellant who obtains a reversal. Brand v. Montega Corp., 233 Ga. 35 (209 SE2d 583) (1974); Stone Mt. Mem. Assn. v. Stone Mt. Scenic R., 232 Ga. 92 (205 SE2d 293) (1974). Here, the trial court ordered G + H to pay the corporate defendants, among other things, $8,642 as the court reporter’s cost for preparing a transcript of the documentary offer of proof made by G+H after the close of the evidence. Because this $8,642 expense for transcript preparation is not a recoverable cost of appeal, the trial court erred in ordering G+H to pay it. See Flight Intl. v. Dauer, 180 Ga. App. 405 (349 SE2d 271) (1986). This portion of the court’s order is therefore reversed.

G+H further claims the court should have divided the remaining $12,556 costs of the first appeal equally between it, the corporate defendants and Irvani. This claim is without merit. OCGA § 5-6-5 plainly provides that an appellant who obtains a reversal is entitled to the costs of appeal. Here, G+H did not obtain a reversal, but in fact lost the first appeal when the Supreme Court reversed the trial court judgment in G+H’s favor. Thus, the trial court properly ordered G+H to pay the corporate defendants $12,556 as the costs of the first appeal.

Judgment reversed in Case Nos. A94A1813 and A94A1814; judgment affirmed in part and reversed in part in Case No. A94A1815.

McMurray, P. J., Birdsong, P. J., Andrews, Smith and Ruffin, JJ., concur. Pope, C. J., Beasley, P. J., and Blackburn, J., dissent.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent. First of all, this is not a case about the sufficiency of the complaint. The majority’s references to OCGA § 9-11-9 (b) are not relevant to the issues. Continental Invest. Corp. v. Cherry, 124 Ga. App. 863 (186 SE2d 301) (1971); Leachman v. Cobb Dev. Co., 226 Ga. 103 (172 SE2d 688) (1970); and Collins v. Manley, 223 Ga. 816 (158 SE2d 235) (1967) all deal with the sufficiency of petitions or complaints alleging fraud. In this complex case there have been two jury trials based on a pretrial order, thousands of pages of record, and a reversal of the first judgment by the Supreme Court because the trial court had exceeded the bounds of discretion in limiting the parties in the development and presentation of the case. Newton Commonwealth Prop. v. G+H Montage GmbH, 261 Ga. 269 (404 SE2d 551) (1991). That the complaint adequately alleged the fraud is not contested at this stage.

More importantly, I am compelled to disagree with the majority’s holding that the circumstantial evidence in this case was not sufficient to authorize the jury to infer that Irvani conveyed the contested millions of dollars to the corporate defendants and that G+H’s failure to produce direct evidence that Irvani was the source of the funds by way of specific conveyances was fatal to its case.

There is evidence that the only individuals with any ownership interest in the corporate defendants were Irvani, his wife, and sons, and G+H has accurately summarized its evidence with respect to him as follows: Irvani had the means, motive and opportunity to have substantial assets outside Iran which gave him the ability to fund the corporate defendants. After he defaulted on his obligation to G+H in 1979, his business associate, Carlson, set up the first of a series of bearer share corporations for which the identity of the owner was concealed. Irvani then came to Georgia and began business operations and real estate acquisitions in the names of these and the other companies which ultimately became the corporate defendants. He personally participated in selecting the property and beginning the corporations, using the same managers and conducting the same kinds of businesses as he had conducted in Iran. He controlled the companies and their assets, and he rather than any other family member or anyone else made the business decisions about them. Employees and bankers were led to believe that the assets of the companies were owned by Irvani, and in forming the banking relationships on behalf of the companies he claimed a $300,000,000 net worth. He acknowledged in writing that he had transferred his own money into Georgia Industries, Inc. Yet, according to Irvani’s closing argument, his defense to G+H’s case was that he lost everything in the Iranian Revolution.

As acknowledged by the majority, G+H submitted evidence that $30,000,000 to $38,000,000 was transferred to the corporate defendants, which Irvani set up. Defendants claimed that most of the money was transferred to them by Irvani’s wife’s corporation, Savoy, and the rest by Irvani’s wife and sons. However, G+H’s accountant showed that all of these were excluded as sources. Moreover, defendants relied upon conflicting oral testimony rather than corporate records to explain their funding. “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” OCGA § 24-4-22.

There was no evidence presented by either G+H or the corporate defendants that anyone other than Irvani, his wife (individually or through Savoy), or his sons transferred the monies to the corporate defendants. G+H submitted evidence that Irvani’s wife and sons had no more than $18,000,000 in assets. It also showed that Irvani did have sufficient assets to fund the conveyances.

Thus, it was for the jury to say whether or not the circumstances preponderated to the theory that Irvani was the source of the transfers from unidentified “shareholders,” as shown on the corporate books, as against all other theories. Radcliffe v. Maddox, 45 Ga. App. 676, 682 (2) (165 SE 841) (1932). The jury was authorized to infer that, through whatever circuitous means, Irvani transferred at least $20,000,000 to the corporate defendants. See Cotton v. John W. Esh elman & Sons, 137 Ga. App. 360, 366 (4) (223 SE2d 757) (1976); cf. United States v. Jackson, 935 F2d 832, 839 (4) (7th Cir. 1991).

The majority’s conclusion that the evidence was not sufficient to support this inference rests on the fact that the record is devoid of any evidence that Irvani was the source of Savoy’s assets. While that is true, there is evidence that Irvani’s wife was the sole source of Savoy’s assets. Therefore, the jury was authorized to find that neither Irvani’s wife, nor his sons, nor Savoy, had more than $18,000,000. The majority decision necessarily rests on the hypothesis that the contested millions came from sources other than Irvani’s wife, or his sons, or Savoy, notwithstanding the fact that the corporate defendants claimed that the money came from precisely these sources. The majority is thus requiring that the proved circumstances show consistency with the hypothesis claimed by the winning side and inconsistency with a hypothesis contrary to the position taken by the losing side. This conflicts with the principle restated in Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232, 233 (367 SE2d 539) (1988): “Where a decision is required between two or more antagonistic theories, an authorized finding that the evidence preponderates to one theory as against all the others necessarily carries with it a finding that the rejected theories are excluded. [Cit.]”

Was the trial court required to grant the corporate defendants’ motion for judgment n.o.v. because of G+H’s failure to submit direct evidence of specific conveyances of funds by Irvani? For several reasons, the answer to this question must be no.

Any fact may be proved by circumstantial evidence. Kapsch v. Stowers, 209 Ga. App. 767, 769 (1) (434 SE2d 539) (1993). Moreover, recourse to circumstantial evidence is a necessity since proof of fraud is seldom if ever possible by direct evidence. “ ‘ “[T]here is no kind of action wherein it can be held with greater reason that the fact in issue may be inferred from other facts proved than in cases of this character. Circumstances apparently trivial or almost inconclusive, if separately considered, may by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.” ’ [Cit.]” Durrence v. Durrence, 224 Ga. 620, 623 (2) (163 SE2d 740) (1968).

The majority acknowledges circumstances in this case which are “badges of fraud,” from which the jury might have inferred that a particular conveyance, once identified, was fraudulent, but reasons that since G+H has not identified or offered proof of any specific conveyance by Irvani, the issue of fraud is not even reached. However, no state or foreign case is cited as authority in support of the holding that a claimant must specify the time of the transfer and describe the instrument by which the alleged fraudulent conveyance was accomplished.

Decided December 5, 1994

Reconsideration denied December 20, 1994

King & Spalding, L. Joseph Loveland, Jr., Frank C. Jones, Webb, Tanner & Powell, Anthony O. L. Powell, for Gwinnett Property.

Branch, Pike & Ganz, James H. Rollins, Cindy J. Davis, for Irvani.

Booth, Wade & Campbell, G. Dean Booth, L. Allison Wade, L. Dale Owens, for G+H Montage GmbH.

If a claimant must describe the instrument by which the alleged fraudulent conveyance was accomplished, as held by the majority, then debtors effectively put themselves beyond the reach of OCGA § 18-2-22, our statute on fraudulent conveyances, by transferring funds secretively, such as electronically through offshore bearer-share corporations, or by cash. This is directly contrary to OCGA § 18-2-22 (2), which states that “[e]very conveyance of real or personal estate, by writing or otherwise . . . made with intention to delay” shall be fraudulent in law against creditors. (Emphasis supplied.) In McGahee v. McGahee, 204 Ga. 91, 97 (2) (48 SE2d 675) (1948), the Court held that the statutory provisions on fraudulent conveyances are broad enough to include every transaction by which creditors or others may be defrauded regardless of nature or form. Moreover, in OCGA § 18-2-20, the General Assembly has provided that “[t]he rights of creditors shall be favored by the courts; and every remedy and facility shall be afforded them to detect, defeat, and annul any effort to defraud them of their just rights.” Consequently, the majority holding does not comport with Georgia law. It leaves creditors remediless in the face of various devices for surreptitious conveyances of money and denies the jury its proper factfinding role.

I am authorized to state that Chief Judge Pope and Judge Blackburn join in this dissent.


source: Caselaw Access Project

author: Per curiam. Smith, Judge,

license: Public Domain

text:
    A94A1866.
    McKNIGHT v. THE STATE.
    (453 SE2d 38)
   Per curiam.

Defendant was charged in two indictments for separate acts of selling marijuana during the April 1993 term of the Newton County Superior Court. Defendant filed a demand for trial during the next term of court (July 1993 term), seeking “a trial by jury ... at the present July Term of this Court or the next succeeding term[, i.e., the October 1993 term of court].” OCGA § 15-6-3 (2) (A).

Defendant was not called for trial during the July 1993 term of court, but his case appeared on a special jury trial calendar during the October 1993 term of court set for the week of December 6-10, 1993. On the first day of this special session the following transpired: “[STATE’S ATTORNEY]: Arthur Thomas McKnight. Your Honor, the State calls the case of the State of Georgia versus Arthur Thomas McKnight charged with two counts of sale of marijuana in Case Numbers 93-CR-902 and 903. Issue has been joined an[d] the State announces ready. THE COURT: How does the defense announce? Are you ready? Mr. McKnight, are your (sic) ready to proceed with the trial of your case? THE DEFENDANT: Where’s my lawyer? THE COURT: I don’t know. That’s a good question. THE DEFENDANT: I don’t know where [my lawyer] is. THE COURT: He filed a demand for trial and we’re here and the jurors are here and we’re ready to pick another jury to go to trial. Do you know where your lawyer is? THE DEFENDANT: No, sir. THE COURT: Mr. Cook, [the State’s attorney,] it’s not your responsibility to keep up with [the defendant’s lawyer], but do you happen to know where he is? [STATE’S ATTORNEY]: Your Honor, he had filed a conflict last week for a court in another jurisdiction which I understand has been resolved, so he should be here. THE COURT: When did you learn that it had been resolved? [STATE’S ATTORNEY]: Saturday. THE COURT: Has [the defendant’s lawyer] contacted you in any way? [STATE’S ATTORNEY]: I have not had any direct contacts with [him]. THE COURT: The case is continued because of the absence of [the defendant’s lawyer]. Your demand for trial is broken. Now, I’m going to — Mr. Cook, would you like for me to put the rest of the jurors on call for Thursday? [STATE’S ATTORNEY]: May I approach the bench? THE COURT: Yes, sir. (Whereupon, a bench conference was held and concluded.) (Proceedings concluded.)”

On January 11, 1994, defendant filed a motion to quash the indictments and a plea in bar based on the State’s failure to bring him to trial before expiration of the term of court following his demand for trial. The undisputed evidence adduced at a hearing on the motion to quash and plea in bar reveals that defendant’s case appeared on the regular criminal jury trial calendar for the July 1993 term of court; that jurors were qualified and impaneled to execute this calendar during the week of July 19-23, 1993; that defendant filed and served his statutory demand for trial on Thursday morning, July 22, 1993, and that defendant’s case was not called for trial during the July 1993 term of court because (at the time defendant filed his demand for trial) the State’s attorney was involved with the last criminal jury trial planned for the week of July 19-23, 1993, and because two groups of prospective jurors summoned in August and September 1993 for service during the July 1993 term of court were summoned for service during special civil jury trial sessions. The evidence also reveals that defense counsel was aware that defendant’s case was on a special criminal jury trial calendar during the October 1993 term of court set for the week of December 6-10, 1993; that defense counsel was formally excused from appearing upon the call of this special jury trial calendar because of a conflict involving a criminal jury trial in another county; that the case scheduled for trial in the other county was resolved before the week of December 6-10, 1993; that defense counsel contacted, via telephone, a “legal secretary for the Newton County Office of the District Attorney . . .” during the morning of December 6, 1993, and “asked [her] if [defendant] had been picked up from the prison system for trial in Newton County [and that the secretary] advised [defense counsel] that he had.” Defense counsel stated in his place that he informed the district attorney’s secretary during this telephone conversation that he was available to try defendant’s case; that this secretary informed him that two other criminal cases were scheduled for trial that morning and that he advised the secretary that “I’m here, let them know that I’m ready whenever they want me.” Defense counsel further stated that he instructed his “paralegal” to remain in contact with the district attorney’s office “to see if there was any further word[;]” that “[t]here was no other information [by] noon [on December 6, 1993]” and that he “called back later that early part of the afternoon to find out what the jury list looked like ... to get ready to prepare for that panel [and that he] was [then] advised [by his paralegal] that everybody had been excused.” Defense counsel stated that no more than “45 minutes later, [defendant] calls in absolute panic from the jail and described being brought before the Court, and that’s the first [defense counsel] knew about the situation.”

The hearing transcript indicates that the assistant district attorney (apparently in charge of the specially called jury trial session) called defendant’s case for trial after he completed voir dire in two other criminal cases on the morning of December 6, 1993, and before he completed these two jury trials. The assistant district attorney testified that the trial “Court asked if [he] had had any contact with [defense counsel upon announcement of defendant’s case for trial] and [that he then] indicated that [defense counsel] had called [the district attorney’s] office that morning and had discussed the availability of [defendant] with [his] secretary and that [he] had no other personal contact with [defense counsel].” The assistant district attorney then explained “that at some point in time someone told [him] that they believed [defense counsel was] at [his place of business, but that he did not recall] whether that was in the morning or in the afternoon [of December 6, 1993].”

The trial court denied the motion to quash and plea in bar, finding that “[t]here were no juries impaneled and qualified to try the Defendant [during the July 1993 term of court and concluded] that the time for the Defendant’s demand did not begin to run until the next regular term of court for Newton County (the October term) [and that the] demand will not trigger a bar to prosecution until the expiration of the January, 1994 term.” In support of its finding that no juries were impaneled and qualified to try defendant during the July 1993 term of court, the trial court reasoned that jurors summoned (apparently in August 1993) for service during a special civil jury trial session of the July 1993 term of court did “not count toward the time during which a defendant must be tried following a demand for trial. Stripland v. State, 115 Ga. 578 [(41 SE 987)] (1902).” The trial court then ruled that, “[e]ven assuming, arguendo, [defendant’s] demand attached in the July, 1993 term, the district attorney would still have the January, 1994 term in which to try the case because of the failure of counsel for the defense to appear when the case was called.”

Defendant was tried before a jury during the January 1994 term of the Newton County Superior Court and found guilty under both indictments for selling marijuana. This appeal followed entry of judgment of conviction and sentence on one of the jury’s verdicts. Held:

1. Defendant first contends the trial court erred in denying his motion to quash and plea in bar, arguing the trial court erred in finding that jurors were not impaneled and qualified to try him during the July 1993 term of court.

“ ‘(I)n computing the time allowed by the two-term requirement [of OCGA § 17-7-170 (b)], terms or remainders of terms during which no jury is impaneled are not counted.’ Kaysen v. State, 191 Ga. App. 734, 735 (382 SE2d 737) (1989). See also Deadwiley v. State, 192 Ga. App. 229 (384 SE2d 221) (1989). Tf no jury is impaneled and qualified to try a person when the demand is filed, the time designated in [OCGA] § 17-7-170 does not begin to run until the term at which jurors are impaneled and qualified to try the person. (Cit.)’ Kersey v. State, 191 Ga. App. 847 (383 SE2d 348) (1989).” Smith v. State, 199 Ga. App. 771, 772 (406 SE2d 118). In the case sub judice, the State concedes that defendant filed his demand for trial during the July 1993 term of court when jurors were impaneled and qualified for service. However, the State points out that defendant waited until Thursday morning (July 22, 1993) during the only week set aside for criminal jury trials in the July 1993 term of court to file a demand for trial and argues that jury panels were not then available to try defendant because “the District Attorney had already begun to select the jury for the last case to be reached during the week-long regular criminal trial term.” This argument is without merit.

The July 1993 term of the Superior Court of Newton County did not expire until commencement of the next regular term of court. OCGA § 15-6-19. The regular term of court following the July 1993 term of court did not begin until the second and third Mondays in October 1993. OCGA § 15-6-3 (2) (A). Consequently, the jurors qualified and impaneled for “the last case to be reached during the week-long regular criminal trial term” were available for further service during the July 1993 term of court. Defendant could therefore have been tried during the July 1993 term of court pursuant to his demand. See Birts v. State, 192 Ga. App. 476, 477 (385 SE2d 120). Compare Kirk v. State, 194 Ga. App. 801, 802 (392 SE2d 249). The fact that the State’s attorney did not wish to work the jurors impaneled and qualified during the July 1993 term of court past July 23, 1993, does not diminish the fact that jurors were impaneled and qualified at the time defendant filed and served his demand for trial. Thus, the trial court erred in concluding that “the time for the Defendant’s demand did not begin to run until the next regular term of court for Newton County (the October term) [and that defendant’s] demand will not trigger a bar to prosecution until the expiration of the January, 1994 term.”

2. In his second enumeration, defendant contends the “trial court erred in finding that special jury trial terms occurring within a regular term [of court] have no bearing upon the issue of whether qualified jurors were available to try [him] during that term.” Although a similar issue was resolved in Huckeba v. State, 157 Ga. App. 795, 797-798 (278 SE2d 703), our holding in Division 1 of this opinion renders it unnecessary to reach this enumeration. Defendant’s demand for trial was effective during the July 1993 term of the Newton County Superior Court.

3. In his final enumeration, defendant contends the “trial court erred in finding that there had been a waiver of [his] demand for trial pursuant to O.C.G.A. § 17-7-170.” At issue is whether defense counsel’s failure to appear upon call of defendant’s case for trial constituted an affirmative waiver of defendant’s right to be tried pursuant to his OCGA § 17-7-170 demand.

OCGA § 17-7-171 (b), which governs speedy trial demands in capital offenses, requires “defendant [to be] present in court announcing ready for trial and requesting a trial on the indictment.” This court has held that there is no parallel requirement in OCGA § 17-7-170, the statute which governs a demand for a speedy trial in a non-capital case such as the one here. Riley v. State, 212 Ga. App. 519 (442 SE2d 7); State v. Collins, 201 Ga. App. 500 (411 SE2d 546); Ciprotti v. State, 190 Ga. App. 639 (379 SE2d 802) (physical precedent only). Accordingly, the absence of defendant and by extension his counsel from the calendar call is not, per se, sufficient grounds to find waiver of the trial demand.

However, “[a] waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” (Punctuation and emphasis omitted.) State v. Waters, 170 Ga. App. 505, 508 (317 SE2d 614), citing Walker v. State, 89 Ga. 482 (15 SE 553).

This court has previously addressed the issue of what constitutes an affirmative act which serves to waive a speedy trial demand. In Ballew v. State, 211 Ga. App. 672 (440 SE2d 76) (1994), defendant and his counsel were present at the calendar call of November 30, 1992. The trial court decided on its own that counsel, who had been appointed November 5, was not ready to proceed and ordered a continuance, at which time defense counsel said nothing. Despite the lack of objection to the continuance, this court found no waiver. “[W]e cannot infer . . . that silence was an affirmative action clearly waiving the requirements of OCGA § 17-7-170.” Id.

In Birts v. State, 192 Ga. App. 476, supra, despite the fact that the trial court had granted defense attorney a two-week leave of absence, the State placed Birts’ case on trial during that period. When neither Birts nor her attorney appeared, the trial demand was stricken. The State again scheduled Birts’ case for trial the following week, during which time defense counsel had two days of scheduled leave and several other cases scheduled for trial. This court found that since “[t]he State waited until the last available moment to schedule a trial demanded months before, and piled it and several other cases upon the attorney in three days,” the defense counsel’s inability to reach the case under these circumstances was not an “affirmative waiver” of defendant’s speedy trial demand. Id. at 477. A waiver must “reflect that the defendant affirmatively sought to avoid trial.” Id.

In this case, defense counsel adamantly refused to agree to a continuance during pre-trial negotiations. As in Ballew, there was no verbal acquiescence to a continuance. Defendant was present and ready for trial at the time his case was called. His only response to the courtroom machinations was the statement, “I don’t know where [my lawyer] is.” There was no evidence of a willingness to delay or an attempt to avoid trial as required by Birts, particularly in light of the pre-trial discussions between defense counsel and the State’s attorney, defense counsel’s telephone call to the district attorney’s office the morning of trial, and his statement to the secretary, “I’m here, let them know that I’m ready whenever they want me.” There was simply a miscommunication based upon defense counsel’s belief that he was “on call” pursuant to the prevailing practice in the jurisdiction.

It may well be that a requirement that defendant and counsel be present at the calendar call, such as imposed by OCGA § 17-7-171 (b), would clarify the duties of counsel for defense; however, it is not the duty of this court to dictate that which the legislature has not. Nor is it this court’s duty to set forth requirements of professionalism which will burden an already overworked prosecutorial system. It is, however, the duty of this court to “seek to uphold rather than whittle away by judicial construction this and other provisions of our Bill of Rights, which secure . . . the guarantees of freedom upon which this country is founded.” Rider v. State, 103 Ga. App. 184 (118 SE2d 749) (1961). Under these circumstances, we find that the trial court erred in denying defendant’s motion to quash the indictments and plea in bar.

Judgment reversed.

Pope, C. J., McMurray, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Birdsong, P. J., Beasley, P. J., Andrews and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. While I agree that we should not attempt judicial legislation of civility and courtesy, the distinction made by the majority between OCGA § 17-7-170 and OCGA § 17-7-171 (b) gives cause for concern. The potential for abuse in an expansive reading of the majority’s decision and a restrictive reading of OCGA § 17-7-170 is amply demonstrated by the facts of this case. Waiver of a demand for trial may not occur under circumstances in which counsel justifiably believes that he or she is excused from the courtroom or “on call.” However, the majority’s decision could be construed as authority for counsel to “disappear,” particularly in the final days of a term of court. Counsel could then insist that the demand remains effective, that the statutory time has expired, and that the defendant is entitled to discharge and acquittal. This places the trial court in an untenable position between the conflicting interests of jury and court administration, a defendant’s demand for trial, and the end of the term. The only possibilities in such a situation appear to be a trial in the absence of defendant’s counsel or an acquittal by operation of law.

The potential for harm to the effective administration of justice on the trial court level persuades me that it is time for reconsideration of State v. Collins, 201 Ga. App. 500 (411 SE2d 546) (1991) and its progeny. That decision overruled a long line of cases requiring the defendant’s physical presence in the trial court to support a trial demand under OCGA § 17-7-170. 201 Ga. App. at 501. Judge Andrews’s special concurrence in Collins thoroughly outlined the cases, legislative history, and principles of statutory construction which point to the inclusion under OCGA § 17-7-170 of the requirement that the defendant be present in court announcing ready and requesting trial. 201 Ga. App. at 501-506. Collins’ removal of this requirement has had unanticipated consequences, and it should now be overruled.

Decided December 5, 1994

Reconsideration denied December 20, 1994

John T. Strauss, for appellant.

Alan A. Cook, District Attorney, for appellee.

Given this requirement of actual presence, readiness, and request for trial, the trial court did not err in denying defendant’s motion to quash the indictments and plea in bar. “Because the penalty imposed by this statute against the state is so great, it must be strictly construed.” Day v. State, 187 Ga. App. 175, 176 (369 SE2d 796) (1988). While the conduct of the assistant district attorney was at best careless and at worst reprehensible, defense counsel bears some responsibility by failing to communicate with the trial court directly, relying instead upon conversations through his paralegal and a secretary in the district attorney’s office. However, the consideration of such facts in ruling on the possible waiver of a demand for trial will lead, ultimately, to “mini-trials” in which the trial court determines the validity and strength of various excuses for an absence from the calendar call. Attorneys, secretaries, and paralegals will be examined and cross-examined regarding alleged telephone messages, mechanical breakdowns, illnesses, and acts of God. The successful assertion of such an excuse will, in some circumstances, result in a discharge and acquittal even though there was no possibility of trial.

The severe penalty imposed upon the State for failure to try a case within the two terms provided by OCGA § 17-7-170 demands a “bright line” rule for determining whether a defendant can assert a demand for trial and obtain a discharge and acquittal. Accordingly, I would affirm the trial court’s denial of defendant’s motion to quash and plea in bar.

I am authorized to state that Presiding Judge Birdsong, Presiding Judge Beasley and Judge Andrews join in this dissent.

       The State explains in its brief that “[d]uring jury selection on December 6th, the District Attorney advised the trial court[, apparently ex parte,] that the demand in [defendant’s] case might run if the case were not called that week [and that the] trial court thereafter directed the State to call [defendant’s] case.”


author: McMurray, Presiding Judge.

text:
    A94A2682.
    GROVER v. THE STATE.
    (452 SE2d 586)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of arson in the first degree. This appeal followed the denial of defendant’s motion for new trial and extraordinary motion for new trial. Held:

1. Defendant contends in his first two enumerations that the trial court erred in denying his motions for directed verdict of acquittal and for a new trial, arguing that the State’s circumstantial evidence did not exclude every other reasonable hypothesis save that of his guilt. See OCGA § 24-4-6.

“When, as here, an enumeration of error is based upon the overruling of a motion for directed verdict of acquittal, which was grounded at trial on insufficiency of the evidence, the proper test for an appellate court is ‘the beyond a reasonable doubt test’ as expressed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Williams v. State, 199 Ga. App. 566, 567 (1) (405 SE2d 716), citing Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). ‘As for the circumstantial evidence, a conviction on circumstantial evidence alone is authorized when “the proved facts (are) consistent with the hypothesis of guilt, but . . . exclude every other reasonable hypothesis save that of the guilt of the accused.” (Cits.) “The term ‘hypothesis’ as used in (OCGA § 24-4-6) refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act. . . .” (Cits.)’ Cobb v. State, 195 Ga. App. 429, 430 (2) (393 SE2d 723).” Patterson v. State, 202 Ga. App. 440, 442 (3) (414 SE2d 895). Viewing the evidence in the case sub judice in a light most favorable to the verdict, we conclude the jury rationally could have found that the evidence excluded every reasonable hypothesis except that of defendant’s guilt.

D. L. Patel testified that he is the manager and part owner of a motel in Jonesboro, Georgia; that defendant stayed at the motel two nights before the motel was partially destroyed by fire and that defendant performed work (painting) at the motel in exchange for half of defendant’s bill for two days of lodging ($22) plus $15. Patel testified that he deducted this boarding fee from a $37 check he tendered for defendant’s wages; that defendant confronted Patel at about 9:00 on the evening before the fire complaining about the amount of pay he received; that Patel offered defendant a compromise of another night’s lodging at the motel for less than half the regular rate and that defendant rejected this offer, leaving the premises in a rage and threatening to sue Patel for refusing to allow him to stay at the motel free of charge. Patel testified that his business burned later that evening at about 1:00 in the morning. Michael Stapleton testified that he is a resident at Patel’s motel; that he talked with defendant (while defendant was working at the motel) on the day before the fire and that defendant then informed Stapleton that “if he didn’t get a free room he was going to come back and burn the place down.” Stapleton testified that he witnessed an argument between defendant and Patel on the night before the fire; that he saw defendant leave the premises in a vulgar rage and that he discovered the motel burning later that night at about 1:00 in the morning. Three teen-aged witnesses testified that defendant came to them on the night of the fire and attempted to enlist their services to help burn Patel’s motel; that they refused to help defendant burn the motel and that defendant came to them a couple of days after the fire and asked them to give him an alibi, i.e., tell the police that defendant was with the teens on the night of the fire. John White testified that he talked with defendant while he and defendant were incarcerated at the “Lovejoy Correctional Facility” and that defendant then informed him that he was in jail for setting “a garbage can on fire. ...” This evidence and evidence that the fire at Patel’s motel was potentially human life threatening is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of arson in the first degree as charged in the indictment. OCGA § 16-7-60 (a) (5); Jackson v. Virginia, 443 U. S. 307, supra; Vineyard v. State, 195 Ga. App. 788 (2) (395 SE2d 49).

2. Next, defendant contends the trial court erred in denying his extraordinary motion for new trial based on newly discovered testimony from his girl friend that he was with her on the night of the fire and therefore could not have set the fire at Patel’s motel. This contention is without merit.

“By definition, newly discovered evidence is evidence ‘that . . . has come to (the defendant’s) knowledge since the trial. . . .’ Lipscomb v. State, 194 Ga. App. 657, 659 (391 SE2d 773) (1990).” Foreman v. State, 200 Ga. App. 400 (2) (408 SE2d 178). In the case sub judice, if defendant’s girl friend was truly an alibi witness, defendant knew of the existence of her testimony long before the time of trial. However, the record indicates that defendant did little, if anything, to compel his girl friend’s testimony at trial. Under these circumstances, we cannot say the testimony of defendant’s girl friend was newly discovered evidence so as to authorize a new trial based on extraordinary grounds. Foreman v. State, 200 Ga. App. 400 (2), supra.

The trial court did not err in denying defendant’s extraordinary motion for new trial based on newly discovered evidence.

Judgment affirmed.

Fope, C. J., and Smith, J., concur.

Decided December 29, 1994.

Lloyd E. Hall, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A94A2551.
    SWANSON v. THE STATE.
    (453 SE2d 78)
   Blackburn, Judge.

Following a trial by jury, the appellant, David Hal Swanson, was found guilty of one count of voluntary manslaughter.

In the early morning hours of May 2, 1992, Swanson arrived home from work, having had two or three beers on the way. Upon his arrival, he found his wife intoxicated and unable to go out for breakfast. He got in his truck and drove to the victim, Larry Gunter’s trailer after she went to bed. Once he arrived, Swanson placed a .45 caliber Colt semi-automatic pistol in his waistband and walked the distance to the trailer. He peered through the front window and saw a videotape in progress of his wife and Gunter in the act of sexual intercourse. Swanson then knocked on the trailer’s door. Gunter, unarmed, came outside. Words were exchanged, and Swanson drew his pistol and pointed it at Gunter, demanding that Gunter return the videotape. A struggle for the gun ensued, and Swanson fired three times, killing Gunter. At trial, Swanson testified that seeing the videotape just before confronting the victim was “like slap in the face”; that “he lost his breath”; that he “was enraged,” “mad,” “scared to death”; and that he did not even see Gunter as he pulled the trigger.

Two weeks earlier, he had gone to Gunter’s trailer and confronted him about the affair he believed Gunter was having with his wife. Approximately 11 years earlier, Swanson had returned home early to find his wife dressed in a pair of stockings and panties. He had beaten Gunter up on that occasion and told him not to come back.

1. Swanson first enumerates that the trial court erred by admitting into evidence a certified copy of Gunter’s death certificate. Citing King v. State, 151 Ga. App. 762, 763 (261 SE2d 485) (1979), Swanson asserts that the death certificate was inadmissible hearsay in that it expressed an opinion that the cause of death was a “gunshot wound of chest and gunshot wound of back.” “[A] death certificate serves as prima facie evidence only of (1) the death itself and (2) the immediate agency of the death. Other conclusions, such as those regarding the events leading up to the death or whether the cause of death was intentional or accidental, are not admissible.” King, supra at 763. The words complained of gave no more than an indication of the immediate agency of death. See Dunn v. State, 251 Ga. 731 (2) (309 SE2d 370) (1983). Moreover, the trial court admitted the death certificate in evidence over Swanson’s hearsay objection after redacting the words “Shot by another” from the death certificate. Accordingly, this claim of error is without merit.

2. Appellant next enumerates that the trial court erred by denying his motion for directed verdict of acquittal after the close of the State’s evidence.

“[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. [Cit.]” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311) (1984). Proof that Gunter died of gunshot wounds was provided by the death certificate. King, supra. Swanson admitted shooting the victim a short time before Gunter was found dead at the location where Swanson said he would be found. The medical examiner’s testimony confirmed that Gunter died as a result of the gunshot wounds inflicted upon him. Accordingly, we find that the motion for directed verdict of acquittal was properly denied.

3. Swanson last asserts that the trial court erred by sua sponte charging the jury on the lesser included offense of voluntary manslaughter. In this regard, appellant argues Humphreys v. State, 175 Ga. 705 (165 SE 733) (1932) for the proposition that the trial court’s voluntary manslaughter charge was here error. We disagree.

In Humphreys, supra at 709, the court found that a voluntary manslaughter charge is not warranted absent “some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances ... to justify the excitement of passion, and to exclude all idea of deliberation or malice either express or implied.” Finding evidence of premeditated murder before it, rather than voluntary manslaughter, the trial court in Humphreys elected not to give a voluntary manslaughter instruction. In the instant circumstances, we conclude that the trial court’s voluntary manslaughter charge was proper in that the evidence indicates that Swanson acted out of a sudden, violent, and irresistible passion resulting from seeing Gunter and his wife in videotaped sexual activity. The law requires at least some evidence to support a voluntary manslaughter charge. Gregg v. State, 233 Ga. 117, 121 (210 SE2d 659) (1974). We find that such evidence was present. This enumeration of error is therefore without merit.

Decided December 16, 1994

Reconsideration denied January 3, 1995

Lee Sexton & Associates, Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Tom Woodward, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2720.
    TILLMAN et al. v. MASTIN et al.
    (453 SE2d 85)
   Johnson, Judge.

Sherri Sikes was attempting to make a left turn off of Highway 80 when her car was struck by a police car driven by Chatham County Police Officer John Mastín. Mastín was responding to a “Code 4” call from his dispatcher, which designates a crime in progress. Sikes subsequently died from the injuries sustained in the collision. Her children brought this suit against Chatham County alleging nuisance and violation of 42 USC § 1983, and against Officer Mastín alleging negligence. Plaintiffs appeal from the trial court’s grant of summary judgment in favor of the defendants.

The trial court correctly granted summary judgment to Chatham County on all claims. At the time of the accident, the Georgia Constitution provided that a governmental unit waived sovereign immunity to the extent that liability insurance had been purchased. Ga. Const. 1983, Art. I, Sec. II, Par. IX. Chatham County had not purchased any liability insurance, but it did maintain a reserve fund for the purposes of paying claims. However, the maintenance of a fund and the payment of claims therefrom does not constitute a self-insurance plan so as to defeat a county’s right to assert sovereign immunity as a defense. Pizza Hut of America v. Hood, 198 Ga. App. 112, 113 (2) (400 SE2d 657) (1990). Because Chatham County is immune from claims, we need not reach the merits of the remaining state claims asserted against it.

42 USC § 1983 creates a cause of action, cognizable in the courts of this state, based upon acts which are in implementation of an intentional policy adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right. . . . What is required to be proved, directly or circumstantially, is that a governing body has worked a due process deprivation of a citizen’s constitutionally protected right pursuant to an impermissible or corrupt policy which is intentional and deliberate.” (Citations and punctuation omitted.) Poss v. City of North Augusta, S.C., 205 Ga. App. 894, 895 (2) (424 SE2d 73) (1992). See also Banks v. Mayor &c. of Savannah, 210 Ga. App. 62, 63 (2) (435 SE2d 68) (1993). We agree with the trial court’s assessment of the record which concludes that there was not a showing that Chatham County intentionally or deliberately promulgated or even tolerated an impermissible or corrupt policy in its training of police officers.

With regard to the claims against Mastin, we note that this case is factually identical to Banks v. Patton, 202 Ga. App. 168, 169 (413 SE2d 744) (1991). In Banks, appellant’s car was struck by a police patrol car as it attempted to turn left. The officer had his flashing blue lights on, but there was a question regarding whether his siren had been activated, just as in this case. Judge Carley, the author of Banks, concluded it was controlled by Logue v. Wright, 260 Ga. 206 (1) (392 SE2d 235) (1990). The police officer was entitled to immunity as a matter of law because “ ‘[t]he rule grants immunity to public employees who perform discretionary acts in a negligent manner. That happened here.’ Logue v. Wright, supra at 207-208. Construing the admissible evidence of record most favorably for appellant, he was injured as the result of appellee’s negligent performance of a discretionary duty. Accordingly, the trial court correctly granted summary judgment in appellee’s favor.” Banks, supra at 170 (2).

The dissent in Banks distinguished it from Logue in two respects: 1) In Banks the plaintiff alleged the officer’s acts “ ‘were unlawful and showed willful misconduct, wantonness, oppression and that entire want of care which raises the presumption of conscious indifference to the consequences’ and 2) in Banks there was testimony from an officer trained in traffic accident investigation qualified as an expert that the failure of the officer in Banks to activate his siren constitutes failure to drive with due regard for the safety of all persons. Id. at 170-171.

The complaint in this case also suggests that Mastin’s conduct in failing to operate the siren was “reckless and/or grossly negligent.” There is no support for this allegation in the record, however. Furthermore, even if an expert were to testify at trial that the officer’s conduct constituted a failure to drive with due regard for the safety of all persons pursuant to the requirements of OCGA § 40-6-6, the effect of that testimony would only establish that the conduct was negligent. A police officer is insulated from liability for such, negligence in any event. Again citing Banks: “Failure to use both the light and siren in this case was an act of negligence, not an act of malice, corruption, wilfulness, or reckless disregard for the safety of others.” (Punctuation omitted.) Id. at 170 (2). To allow the issue of an officer’s conduct to be submitted to a jury in such cases would abrogate the long-standing rule of law granting immunity to public officers for negligent performance of discretionary acts. Logue and Banks are still good law.

Summary judgment was also properly granted to Mastín on the 42 USC § 1983 claim. As the trial court pointed out in its order: “Automobile negligence actions against a policeman acting in the line of duty are grist for the state law mill. But they do not rise to the level of a constitutional deprivation.” (Citations and punctuation omitted.) Martin v. Ga. Dept. of Pub. Safety, 257 Ga. 300, 305 (4) (357 SE2d 569) (1987).

Judgment affirmed.

Andrews, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur fully with respect to the affirmance of summary judgment to the county. With respect to defendant Mastín, I concur in the judgment because I am bound by Banks v. Patton, 202 Ga. App. 168 (2) (413 SE2d 744) (1991). However, the law expressly conditions the exercise of certain driving privileges, by drivers of law enforcement vehicles in emergencies, upon the activation of an audible signal and a flashing or revolving blue light. OCGA § 40-6-6 (c). The plain meaning of this is that if the prerequisites are not met, there are no such privileges and the safety regulations are not suspended. The purpose of mandating both audible and visual warnings obviously is to provide a proven modicum of protection to the life, limb, and property of those traveling on the highway. Appropriating the privileges when not meeting the mandatory conditions is a violation of the law. OCGA § 40-6-6 (e).

Considering the known effect of driving without an audible signal, it should be a question of fact whether an officer who does so and in addition sets aside the normal safety regulations described in subsection (b), thereby acts with reckless disregard for the safety of others or only negligently. The higher degree of culpability should depend on the circumstances and the jury’s evaluation of them.

Decided December 19, 1994

Reconsideration denied January 4, 1995

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellants.

Woodall & MacKenzie, John T. Woodall, Peter A. Giusti, for appellees.

       Our analysis of a police officer’s conduct in responding to a reported crime in progress is not controlled by Mixon v. City of Warner Robins, 264 Ga. 385 (444 SE2d 761) (1994), which holds that an officer’s decision to engage in high speed pursuit of a fleeing suspect creates an intervening act which a jury might find to be the proximate cause of the injury. We think that the decision in Mixon was limited to high speed pursuit cases and that the Supreme Court in Mixon did not intend to suggest that an individual police officer must weigh the consequences of responding to every dispatcher’s call prior to doing so.


author: Pope, Chief Judge.

text:
    A94A1548.
    MADDOX v. SOUTHERN ENGINEERING COMPANY et al.
    (453 SE2d 70)
   Pope, Chief Judge.

Plaintiff H. Gilbert Maddox, Jr., M. D., appeals the trial court’s dismissal of his two-count complaint against defendants Southern Engineering Company, Carroll County Water Authority (“the Authority”), and Still Waters Plantation, Ltd. (“SWP”) for failure to state a claim. We affirm the trial court’s dismissal of plaintiff’s fraud claim, but reverse the dismissal of his state RICO claim.

Viewing the complaint in a light favorable to plaintiff, it appears that Carroll County hopes to build a new dam and reservoir. Plaintiff owns property near Whooping Creek, one potential site for the dam and reservoir; and if the reservoir is created there, plaintiff will develop his land and its value will increase. Defendant SWP owns property near an alternative site on Snake Creek, however, and the value of its property will increase if the reservoir is created there. Plaintiff alleges that Southern Engineering, the Authority, and SWP conspired to provide governmental entities with false information to ensure that the new dam and reservoir will be built on Snake Creek. Specifically, plaintiff alleges that the Authority submitted a permit application to the United States Army Corps of Engineers (“the Corps”) in which it made false statements, and that the Authority and Southern Engineering submitted a water supply alternative analysis to the Corps in which they made additional false statements. In his amended complaint, plaintiff further avers that defendants submitted false reports to state agencies as well.

Plaintiff first filed a complaint against defendants based solely on fraud. After defendants filed motions to dismiss for failure to state a claim, plaintiff amended his complaint, stating his fraud count with more particularity and adding a second count based on the Georgia RICO Act. See OCGA § 16-14-1 et seq. The trial court then dismissed plaintiffs entire complaint.

1. The trial court properly dismissed plaintiffs fraud claim. To state a cause of action based on fraud, a plaintiff must allege facts showing that the defendants knowingly made false statements, that they made those statements with an intention to induce plaintiff to act or refrain from acting in reliance on the statements, that the plaintiff justifiably relied on the false statements, and that plaintiff was damaged as a result. See, e.g., Steimer v. Northside Bldg. Supply Co., 202 Ga. App. 843 (415 SE2d 688) (1992). In Steimer, a builder and general contractor made false representations to an owner, and the plaintiff materialman was damaged as a result. Yet even though the plaintiff was damaged as a result of the false representations, we held there was no fraud because the false representations were made to a third party and the plaintiff was not misled by them; indeed, the plaintiff knew the representations were false and disputed them as soon as he became aware of them. Id. at 845. This case, in which the alleged false representations were made to governmental entities, presents a similar situation. Although plaintiff alleges in his amended complaint that he failed to develop his land as a result of defendants’ representations, this allegation does not get to the heart of the matter: plaintiff may have failed to develop his land because of the existence of an alternative reservoir site, but he was not misled in any way by any false representation allegedly made by defendants. Thus, plaintiff fails to state a cause of action based on fraud, and his failure is one which cannot be cured by pleading his cause with more specificity.

2. Nonetheless, we agree with plaintiff that the trial court erred in dismissing his state RICO claim. Under the state RICO Act, it is unlawful for anyone to acquire an interest in or control of money or property through a pattern of racketeering activity (OCGA § 16-14-4 (a)), and anyone who is injured by reason of any violation of OCGA § 16-14-4 shall have a cause of action for three times the actual damages sustained (OCGA § 16-14-6 (c)). To establish that defendant engaged in racketeering activity, a plaintiff must show that the defendant committed predicate offenses (set forth in OCGA § 16-14-3 (9)) at least twice. Defendants argue that plaintiff’s RICO claim is based on incidences of fraud as predicate offenses, so if there is no fraud (as we decided in Division 1), there can be no RICO violation. Plaintiff’s RICO claim is not based on defendants’ alleged fraud, however. Instead, it is based on alleged violations of OCGA § 16-10-20, which prohibits the making of a false statement “in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state.” A violation of this Code section constitutes “racketeering activity” for purposes of the Georgia RICO Act. OCGA § 16-14-3 (9) (A) (xv). Moreover, while plaintiff must show the defendants’ criminal acts injured him to recover treble damages under OCGA § 16-14-6 (c), his inability to show that he was actually misled by the false statements is not fatal. Plaintiff has not specified what false statements were made to state agencies, but he does not have to do so at this point; defendants may move for a more definite statement if they need more specificity. See Interagency, Inc. v. Banco Financial Corp., 203 Ga. App. 418 (1a) (417 SE2d 46) (1992). As the averments of the complaint do not “disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim,” DeKalb County v. Ga. Paperstock Co., 226 Ga. 369, 370 (1) (174 SE2d 884) (1970), plaintiff’s RICO claim should not have been dismissed.

Decided December 13, 1994

Reconsiderations denied January 5, 1995.

Gary P. Bunch, for appellant.

Tisinger, Tisinger, Vance & Greer, Kevin Buice, Johnson, Beck-ham & Bangle, W. P. Johnson, Thomas E. Parmer, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Fain, Major & Wiley, Christopher E. Penna, for appellees.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Smith, J., concur.

On Motion for Reconsideration.

Defendant Carroll County Water Authority argues for the first time on motion for reconsideration that, as a governmental entity, it cannot be sued under the Georgia RICO statute. This argument was not addressed below, and we will not address it for the first time here. However, nothing in this opinion precludes defendants from raising this or other issues in a subsequent motion for summary judgment.


author: Beasley, Presiding Judge.

text:
    A94A1951.
    A94A1952.
    TIDWELL v. THE STATE. WILLIAMSON v. THE STATE.
    (453 SE2d 64)
   Beasley, Presiding Judge.

Co-defendants Tidwell and Williamson appeal their convictions for leaving the scene of an accident with death and serious bodily injury (OCGA § 40-6-270) and giving false statements (OCGA § 16-10-20).

The evidence construed in favor of the verdicts showed the following. Tidwell, Williamson, and Glover rode together in Tidwell’s truck from Newnan to a club in LaGrange, arriving about 8:00 p.m. Williamson drove because Tidwell had already consumed eight or nine beers. The men stayed until the establishment closed between 12:00 and 12:30 a.m. and left in Tidwell’s truck. Williamson drove, heading north, Tidwell was in the passenger seat, and Glover was in the truck’s open cargo area until he was thrown or fell out.

Around 1:00 a.m. driver O’Donnell was traveling south and saw the truck pulled over to the road’s west side. As O’Donnell slowed, she noticed Glover lying in the middle of the road next to a lounge chair and Tidwell and Williamson standing outside Tidwell’s truck. O’Donnell drove to a nearby friend’s house to get assistance. Meanwhile, Williamson got back in Tidwell’s truck, made a U-turn to the east side of the road and, from a distance of 20-25 yards, shined the truck’s headlights on Glover lying in the road. A few minutes later, Green was traveling north when he became blinded by the truck’s bright headlights and ran over Glover. In fear of further injuring Glover, Green did not move the vehicle off of him. Green and his passenger exited their car, screamed to Williamson and Tidwell for help, and ran towards Tidwell’s truck. Before they could reach it, Williamson got into the driver’s seat and he and Tidwell drove off.

Glover sustained two skull fractures, one of which was consistent with falling from the moving truck, and succumbed to compression asphyxia (and also possibly a tear of the liver), consistent with being smothered by the weight of an automobile. There was medical opinion that if Glover had been assisted initially after falling from the truck, or even after he was first hit by Green’s car, he could have survived.

Williamson gave a written statement that Glover insisted on staying at the club when Williamson and Tidwell were ready to leave and that the last time Williamson saw Glover was at the club. Tidwell gave a written statement that Glover would not leave the club with him and Williamson, that Glover said he would catch a ride, and that Williamson drove Tidwell to his house and then went home.

1. Tidwell and Williamson contend that the court erred in denying their general demurrer to Count 1 of the indictment because it failed to allege essential elements of OCGA § 40-6-270 as stated in its subsections (b) and (c), i.e., that the men knowingly failed to comply with OCGA § 40-6-270 (a) and that the accident in which they allegedly were involved was the proximate cause of Glover’s serious injury and death.

The indictment charged Tidwell and Williamson “with the offense of LEAVING THE SCENE OF AN ACCIDENT WITH DEATH AND SERIOUS BODILY INJURY (40-6-270); for that [Tidwell and Williamson] ... on or about June 15, 1993 . . . did then and there unlawfully, being the driver of a motor vehicle involved in an automobile accident on Hammett Road in Troup County, Georgia, resulting in the death of . . . Glover, leave the scene of said accident without fulfilling the requirements of O.C.G.A. 40-6-270, to wit: remain on said scene to render aid to said . . . Glover and remain for the purpose of identifying said accused’s name, address, motor vehicle registration and driver’s license, contrary to the laws of said State, the good order, peace and dignity thereof.”

Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993), articulates the applicable principles: “ ‘Every indictment . . . which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.’ OCGA § 17-7-54 (a). ‘ “The true test of the sufficiency of an indictment that will withstand a general demurrer is ... as follows: ‘If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.’ ” (Cit.)’ [Cit.]”

Assuming the establishment of the facts alleged in Count 1, it constitutes a violation of OCGA § 40-6-270 as a matter of law. The allegation that the men acted “unlawfully,” with reference to the specific Code section which made the conduct unlawful, sufficiently included the intent to commit the criminal act and the knowledge necessary to form such intent. See Dye v. State, 177 Ga. App. 813 (1) (341 SE2d 469) (1986), overruled on other grounds in Eason v. State, 260 Ga. 445, n. 1 (396 SE2d 492) (1990). The allegation that the men’s actions resulted in Glover’s death adequately asserted proximate cause.

2. Tidwell and Williamson also contend that the denial of the general demurrer to Count 1 was error because the language of the count failed to advise them with reasonable certainty of the accusation against them.

It was unclear, they say, about who was alleged to be the driver or whether both were and whether or not one or two vehicles were involved. They further argue that the language charging them with failing to remain at the scene for the purpose of giving identifying information placed a burden on each of them to give such information about the other.

The arguments are unavailing. First, the wording of the indictment cannot be understood to place a burden on each man to identify the other. It is couched in the specific charge of a violation of OCGA § 40-6-270, which makes it mandatory that the offending individual give “his name and address,” etc. Nor does the wording reasonably implicate more than one vehicle. Even if it did, this would not render the defendants uncertain about the criminal acts with which they were charged.

Lastly, the indictment was not fatally defective because it failed to differentiate or name the actual driver. Even though it would have been the better practice to indict in language which accommodated the principles of parties to a crime (OCGA §§ 16-2-20 (a); 16-2-21), the failure to do so did not deprive Tidwell and Williamson of sufficient specificity to apprise both them and the jury of the charges on trial. Wright v. State, 165 Ga. App. 790 (1) (302 SE2d 706) (1983).

3. Both defendants contend that the court erred in failing to fully and correctly charge the jury on the elements of OCGA § 40-6-270 in that it did not instruct that in order for criminal responsibility to be found, the failure to comply with the provisions of subsection (a) must be done knowingly and that the accident must be the proximate cause of death, injury, or damage to another vehicle.

The trial court’s specific instruction to the jury regarding OCGA § 40-6-270 was a paraphrase of subsection (a), which states the duty of a driver to stop or return to the scene of an accident. It contains a statement of proximate causation but does not specify the intent required for a criminal violation of the duty. That is found in subsections (b) and (c), which state that the person must “knowingly [fail] to stop and comply with the requirements of subsection (a).” See Dworkin v. State, 210 Ga. App. 461, 462 (436 SE2d 665) (1993).

Even though the trial court did not specifically instruct the jury on knowing failure as stated in subsections (b) and (c) of OCGA § 40-6-270, it gave the pattern charge on intent and that there is no presumption of criminal intent. 1991 Suggested Pattern Jury Instructions, Vol II: Criminal Cases, Part 2 (I) and (I) (1), p. 10.

The court’s charge on criminal intent was sufficient to inform the jury that it had to find that Tidwell and Williamson intended to evade the duty imposed by OCGA § 40-6-270 (a). Such intent had to include, as a matter of logic and law, the underlying knowledge upon which to form the intent. See Dye v. State, supra; see also Fowler v. State, 188 Ga. App. 873 (1) (374 SE2d 805) (1988), in which a general charge on intent was held to be sufficient to apprise the jury of the intent required to convict of aggravated assault.

Moreover, defendants were not contesting knowledge that they had left the scene of the ultimately fatal accident; they claimed that they were never there at all and had not given the victim a ride from the nightclub.

4. Tidwell and Williamson contend that the court failed to correctly and fully charge the jury on knowledge and wilfulness, as elements of OCGA § 16-10-20.

The defendants were charged with violating OCGA § 16-10-20 by “unlawfully, knowingly, and willfully” making a false statement and writing. The court initially instructed the jury that the statute provided, “[i]t is unlawful for a person to make a false, fictitious or fraudulent statement or representation.” The court later added “It is unlawful for a person to make a false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of any department or agency [of] state government or of the government of any county or other political subdivision of this state.”

Decided December 8, 1994

Reconsideration denied January 5, 1995.

Fanning & Hudson, Steven E. Fanning, for appellants.

Peter J. Skandalakis, District Attorney, for appellee.

Here again, the court’s charge on criminal intent was sufficient to inform the jury that in order to convict, it had to find that defendants intended to make the false statements. Implicit in such intent is knowledge of the falsity. See Division 3, supra. It is not reasonable to conclude that the jury could have understood that conviction was authorized even if defendants unwittingly made false or fraudulent statements. What is more, defendants were not claiming they did not know that their statements were false; rather, they claimed that the statements were truthful.

5. Tidwell cites as error the denial of his motion for a directed verdict of acquittal on the charge of leaving the scene. He contends that the evidence against him was insufficient as a matter of law because it showed at most that he was present and owned the truck.

The evidence showed far more. It showed that Tidwell actively participated in knowingly failing to remain at the accident scene to give identifying information and to render aid to Glover, which proximately resulted in Glover’s grievous injury and death.

The evidence was sufficient to enable the jury to find beyond a reasonable doubt that both Tidwell and Williamson were guilty of violating OCGA § 40-6-270. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It was not error to refuse to direct a verdict in favor of Tidwell.

Judgments affirmed in Case Nos. A94A1951 and A94A1952.

Andrews and Johnson, JJ., concur.


author: Smith, Judge.

text:
    A94A1990.
    PIGGLY WIGGLY SOUTHERN, INC. v. WEATHERS.
    (453 SE2d 74)
   Smith, Judge.

William F. Weathers filed a complaint against appellant Piggly Wiggly Southern, Inc., alleging that appellant’s negligence caused his personal injuries. The trial court denied appellant’s motion for summary judgment and granted a certificate of immediate review. We granted appellant’s application for interlocutory appeal, and this appeal followed.

As Weathers was shopping in appellant’s grocery store, he tripped over an empty display rack at the end of an aisle, fell, and was injured. On his deposition, Weathers testified he was familiar with the store and shopped there on a regular basis. He knew there were display racks at the end of each aisle and had passed through four aisles earlier in his visit. Although he testified he could not see the display rack from farther back down the adjoining aisle, Weathers acknowledged that it was visible when he arrived at the corner. He stated if he had been looking down as he turned the corner he would have seen the display rack, but he was not looking where he was going. Instead, he was looking towards the meat counter at the rear of the store.

In this case, the evidence demands a finding that Weathers failed to exercise ordinary care for his own safety. Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994) and Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (263 SE2d 171) (1979), cited by Weathers, are distinguishable on their facts. Barentine slipped and fell in a grocery store as he was approaching the checkout area. He testified the nighttime cashier was not at the cash register, and he was distracted from watching his path by having to summon the cashier. 264 Ga. at 225. While Chandler is facially similar because it involves the empty “endcap” of a department store display case, there was evidence presented that Chandler’s attention was diverted by merchandise hanging from an overhead beam rather than displayed on shelves at eye level. 152 Ga. App. at 427. There was also evidence that the endcap was hidden “partially — if not totally” from view by the design of the adjoining counter, that Chandler was looking where she was going, and that she ran into the endcap as she was watching and trying to avoid the counter. Id. Under these circumstances, this court affirmed the denial of a directed verdict for the defendant store. 152 Ga. App. at 430.

Here, though, Weathers points to no evidence that the display rack was “camouflaged” or intrinsically unsafe in any way. Appellant’s manager testified the rack was large and of a contrasting color to that of the flooring. Weathers agreed the rack was of a contrasting color and testified that he “would have had to see” the display rack if he had looked when he came to the end of the aisle. Compare Stone v. Winn-Dixie Stores, 212 Ga. App. 291 (442 SE2d 1) (1994) (garden hose placed directly behind plaintiff by store employee while plaintiff was speaking with another employee could constitute hidden obstruction). Moreover, Weathers was not paying attention to where he was going, but was looking at the meat market at the rear of the store.

Decided December 15, 1994

Reconsideration denied January 5, 1995

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Troy A. Lanier, for appellant.

Fleming, Blanchard, Jackson & Durham, Richard A. Ingram, Jr., for appellee.

Weathers did not testify he was distracted by any conduct of a Piggly Wiggly employee. Although he contends he was distracted by the presence of merchandise in the store, a product on store shelves does not in itself constitute a distraction. Riggs v. Great A & P Tea Co., 205 Ga. App. 608, 610 (423 SE2d 8) (1992) (plaintiff tripped over box of canned goods in store aisle). The presence of a meat market, now a feature of almost all large groceries, does not in itself constitute a distraction. Weather’s deposition testimony “is fatal in this case.” Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992). There is no remaining disputed issue of material fact, and the trial court erred in denying Piggly Wiggly’s motion for summary judgment.

Judgment reversed.

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

       We also note that Chandler predated the landmark decision of Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), which substantially redefined the law governing slip-and-fall actions.