text:
    A98A0100.
    RIDDLE v. BEKER et al.
    (501 SE2d 893)
   Smith, Judge.

At the trial of this medical malpractice case, the jury found in favor of defendants Herschel I. Beker, M.D., and North Fulton Orthopaedic Clinic, RC. In three interrelated enumerations of error, plaintiff Dorothy Riddle appeals the denial of her motion for a new trial on the ground of juror misconduct. Finding no error, we affirm.

According to Riddle’s motion for new trial, the forewoman of the jury committed misconduct by fabricating a nonexistent instruction from the trial court. At the motion hearing, counsel for Riddle stated that other jurors were available to testify to this alleged misconduct. The trial court granted defendants’ motion in limine seeking to bar any juror testimony impeaching the verdict. Riddle does not appeal or enumerate as error the order granting defendants’ motion in limine. As a result, the exclusion of the jurors’ testimony is not before us, and the only testimony in the record is the affidavit of the forewoman categorically denying Riddle’s allegations.

Even if Riddle had preserved the issue of the admissibility of the other jurors’ testimony, however, it must be resolved against her. A long-standing principle of Georgia law provides that “affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 9-10-9. This prohibition includes oral testimony offered at a hearing. PIE Nationwide v. Prickett, 189 Ga. App. 77 (374 SE2d 837) (1988) (physical precedent only, but cited with approval in Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 59 (390 SE2d 55) (1989)).

Riddle relies almost exclusively on criminal appeals to argue that this rule should not be applied here. Certain limited exceptions have been noted to the general rule barring jurors’ impeachment of their verdict, “where extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations. [Cit.]” Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990). These exceptions, however, apply only in “certain very limited occasions where human life or liberty sways in the balance. But such compelling personal interests of life and liberty rarely are at issue in civil litigation and are not so at issue in this case.” Perryman v. Rosenbaum, 205 Ga. App. 784, 787 (423 SE2d 673) (1992). See also Bagley v. City of Alma, 178 Ga. App. 474, 476 (4) (343 SE2d 740) (1986).

Decided May 1, 1998

William G. Hasty, Jr., Patricia B. Ball, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Leslie B. Zacks, for appellees.

Even if we were to apply these exceptions to a civil action, this case does not involve “extrajudicial information” within the meaning of the criminal decisions cited by Riddle. The misconduct alleged by Riddle is unlike that in Steele v. State, 216 Ga. App. 276 (454 SE2d 590) (1995), disapproved on other grounds, Kennebrew v. State, 267 Ga. 400, 404, n. 2 (480 SE2d 1) (1996), in which a juror made use of information copied from a home encyclopedia; or in Watkins v. State, 237 Ga. 678, 683-685 (229 SE2d 465) (1976), in which two jurors visited the crime scene and communicated their observations to other jurors. Here, Riddle alleges that a juror falsely stated she had received a written instruction from the judge. If no such instruction existed, as Riddle claims, there was no extrajudicial information as the allegedly false statement originated with the juror. A verdict cannot be impeached “on the basis of statements made to one another in the jury room and the effect of those statements on the minds of the individual jurors.” (Citations and punctuation omitted.) Williams v. State, 252 Ga. 7, 8 (310 SE2d 528) (1984). Conversely, if the trial court did instruct the jury, such an instruction would not constitute extrajudicial information even if otherwise improper. The misconduct alleged by Riddle therefore does not fall within this exception.

As Riddle correctly notes, “[mjotions for new trial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge. Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination.” (Citations and punctuation omitted.) Bean v. Landers, 215 Ga. App. 366, 367 (450 SE2d 699) (1994). Under the evidence presented here, Riddle has failed to demonstrate an abuse of discretion sufficient to overturn the trial court’s denial of her motion for new trial.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       The only possible exceptions are several cases cited for general propositions of law, a number of federal decisions, and Perryman v. Rosenbaum, 205 Ga. App. 784 (423 SE2d 673) (1992), which Riddle attempts to distinguish. Riddle also cites an 1893 Indiana Court of Appeals decision stating a general rule as to communications between a judge and jury; Riddle did not provide the Court with a copy of this opinion, and it is not controlling authority in any event.

       We do not reach the separate issue of defendant’s right to be informed of communications between the trial court and the jury. See McBride v. State, 213 Ga. App. 857, 861 (11) (446 SE2d 193) (1994) (full concurrence on Division 11). Although the trial court noted that the trial transcript would resolve the question of such an instruction’s existence, Riddle has not transmitted this portion of the record.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0257.
    JENKINS v. THE STATE.
    (501 SE2d 891)
   Judge Harold R. Banke.

Anthony Jenkins was convicted of robbery by force. He enumerates three errors on appeal.

This case arose in the early morning when Jenkins ran into his 88-year-old great-grandmother’s bedroom screaming, “Mama, I’m on drugs and I need some money.” Then he beat her, stole her purse, and fled. Later, a visiting nurse discovered the victim, and emergency medical technicians (“EMTs”) were called to the scene. The EMTs found the victim lying face down on her living room floor, bleeding from the mouth, with several loose teeth. The victim stated she had been struck by a fist. Upon arriving at the hospital, the victim told a doctor that she had been beaten up by her grandson. She had multiple contusions and abrasions on her face, neck and upper left chest and complained of pain on her face, neck, shoulders, and knees.

After the arresting officer was summoned to the hospital, the victim informed him that her grandson, Anthony Jenkins, beat her and stole her purse. Jenkins was apprehended the same day, after he tried to visit the victim in the hospital. Held:

1. The trial court did not err in refusing to suppress a confession Jenkins made to the arresting officer 20 days after counsel had been appointed. “[0]nce an accused in custody invokes his right to counsel, he should not be interrogated further without counsel present, ‘unless the accused himself initiates further communication, exchanges or conversations with the police.’ [Cit.]” Bright v. State, 265 Ga. 265, 280 (5) (c) (455 SE2d 37) (1995). But even after a defendant has unequivocally invoked his right to counsel, he may be interrogated further if he initiates the discussion and knowingly and intelligently waives his Miranda rights. Id.

The evidence of the exchange between Jenkins and the officer is disputed. At the Jackson v. Denno hearing, the officer testified that while Jenkins was in the exercise yard at the jail, he called to the officer and asked to talk to him. Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). The officer stated that he took Jenkins to the jail office and after he was Mirandized, Jenkins waived his right to an attorney and gave a written confession.

Jenkins admitted that he had talked to the officer at the fence but denied indicating that he wanted to confess. Jenkins testified that the officer called him downstairs, showed him pictures of the victim’s injuries, and asked if he wanted to talk about it. Jenkins denied that he had been Mirandized, but admitted he was literate and had signed the waiver of his Miranda warnings written on the form on which he wrote the confession. Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). He denied, however, reading those warnings.

Decided May 1, 1998.

Martin H. Eaves, for appellant.

Findings of fact made after a Jackson v. Denno hearing will not be disturbed unless they are clearly erroneous. Dixon v. State, 267 Ga. 136, 139 (3) (475 SE2d 633) (1996). We cannot say the trial court clearly erred in concluding that Jenkins initiated the contact and knowingly and intelligently waived his right to counsel.

2. Jenkins contends that his confession was the only admissible evidence of his guilt and that, absent corroboration, it was insufficient to support his conviction. Notwithstanding the fact that the victim unequivocally refused to testify against Jenkins, the record contains sufficient res gestae evidence of guilt to corroborate Jenkins’ confession and support his conviction. OCGA § 24-3-3; Carswell v. State, 268 Ga. 531, 532 (1) (491 SE2d 343) (1997) (“any corroboration” of a valid confession will sustain a conviction). We believe the victim’s statements to the arresting officer and the emergency room physician identifying her assailant were so closely connected to the offense as to be inherently reliable, particularly in light of her refusal to testify once she realized the penal consequences to her great-grandson. Morris v. State, 228 Ga. App. 90, 92 (2) (491 SE2d 190) (1997); see Barksdale v. State, 265 Ga. 9, 13 (2) (b) (453 SE2d 2) (1995) (witness who refused to testify was “unavailable”). The record shows that these statements “ ‘were made without premeditation or artifice, and without a view to the consequences.’ ” Wilbourne v. State, 214 Ga. App. 371, 372 (1) (448 SE2d 37) (1994); Williams v. State, 202 Ga. App. 82, 83-84 (413 SE2d 256) (1991) (physical precedent only).

3. We must reject Jenkins’ argument that the victim’s refusal to testify abridged his right to confrontation. The Sixth Amendment guarantees the accused’s right “to be confronted with the witnesses against him.” (Punctuation omitted.) Livingston v. State, 268 Ga. 205, 210 (2) (486 SE2d 845) (1997). The fact is the victim unequivocally refused to testify against him. Because the res gestae testimony of witnesses who interacted with her shortly after the robbery “meets the requirements of a firmly-rooted exception to the hearsay rule,” it did not violate Jenkins’ confrontation rights. Id. In any event, Jenkins failed to demonstrate how he was harmed by the victim’s refusal to testify. Wilson v. State, 227 Ga. App. 59, 62 (2) (488 SE2d 121) (1997). The circumstances of this case indicate that the victim’s truthful testimony would have incriminated Jenkins.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.


text:
    A98A0327.
    BALLARD v. THE STATE.
    (501 SE2d 889)
   Judge Harold R. Banke.

Cecil D. Ballard was convicted of aggravated assault. He enumerates three errors on appeal.

This case arose as Ballard, his co-defendant, Jamie Webb, and Ballard’s underaged brother Willie were drinking at Ballard’s home. Willie became agitated after his girl friend called to say the victim had invited her to a party. After Webb gave Willie the victim’s telephone number, Willie told the victim to meet him to fight. When the victim failed to appear, Webb, Ballard, and Willie went to the victim’s home.

After confirming the victim’s identity, Willie pushed inside and attacked him. Ballard ran in, told Willie to get down, and shot the victim. The three men then ran to some woods, where Ballard tossed the gun.

A police officer was waiting for Webb when he returned home. Webb confessed, pleaded guilty, and agreed to testify against Ballard. The victim also testified that Ballard shot him. Held:

1. The record negates Ballard’s contention that his conviction was based solely on the uncorroborated testimony of an accomplice. The victim testified that Ballard shot him twice. Thus, notwithstanding Ballard’s argument to the contrary, because the conviction was not based solely on an accomplice’s testimony, OCGA § 24-4-8 does not apply. Thus, Ballard was not entitled to a charge on corroborating evidence.

Ballard’s claim that the victim “admitted by his silence” on cross-examination that Ballard did not shoot him is undermined by trial counsel’s failure to ask the court to instruct the victim to answer or to strike his testimony on direct. See Hines v. State, 221 Ga. App. 193, 194-195 (470 SE2d 787) (1996). Moreover, the record shows that the victim testified several times on cross-examination that Ballard was the perpetrator.

2. Ballard maintains that the trial court erred in instructing the jury that Arlene Vetter’s testimony could be considered only for impeachment purposes. The record shows that the State challenged the evidence at issue as hearsay and, in response, Ballard offered the evidence for impeachment purposes. A party cannot acquiesce to or solicit a ruling and then complain of it on appeal. Boone v. State, 229 Ga. App. 379, 381 (4) (494 SE2d 100) (1997).

Decided May 1, 1998.

Sims, Fleming & Spurlin, Robert D. Bryan, for appellant.

C. Paul Bowden, District Attorney, Nancy G. Brimberry, Assistant District Attorney, for appellee.

3. Ballard maintains the evidence was insufficient to support his conviction because Webb gave contradictory testimony and the victim “confirmed his own perjury,” apparently on cross-examination. In effect, Ballard asks us to reweigh the evidence and discount both Webb’s and the victim’s testimony. This we cannot do. Appellate courts limit their review to evidence sufficiency and do not weigh the evidence or determine witness credibility. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994). The testimony of the victim and Webb that Ballard fired the shots that hit the victim, viewed in the light most favorable to the verdict, was sufficient to allow a rational trier of fact to find all the essential elements of aggravated assault. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Smith, Judge.

text:
    A98A0409.
    RICHARDSON v. THE STATE.
    (501 SE2d 885)
   Smith, Judge.

A Forsyth County grand jury indicted Robert H. Richardson for trafficking in cocaine, OCGA § 16-13-31 (a), possession of more than one ounce of marijuana, OCGA § 16-13-30 (j) (1), no proof of insurance, OCGA § 40-6-10 (a) (1), and operating a motor vehicle without a seat belt, OCGA § 40-8-76. After the trial court denied his motion to suppress, Richardson waived jury trial and the case was presented to the trial court for bench trial on the basis of stipulated facts and the evidence developed at the hearing on Richardson’s motion to suppress. Richardson was found guilty of the lesser included offense of possession of cocaine with intent to distribute and possession of more than one ounce of marijuana; the motor vehicle charges were nol prossed by the State. Richardson appeals the judgment of conviction, enumerating as error the denial of his motion to suppress. Finding no error, we affirm.

Construed to support the trial court’s ruling, the evidence shows that Forsyth County Sheriff’s Deputy Richard Holcomb was on routine patrol in the county at 1:45 in the morning. As part of his duties, he had been instructed to check subdivision building sites because of night-time thefts of construction materials. As he stopped his patrol car under a street light at the entrance to an unoccupied subdivision to make an entry in his log, he noticed Richardson’s vehicle leaving the subdivision. He also observed that Richardson was not wearing a seat belt. For these reasons, Holcomb activated his blue lights and pulled Richardson over for a traffic stop.

Richardson produced a valid driver’s license “[a]fter a bit,” but was unable to locate proof of insurance. Richardson fumbled through a “black organizer-type zip bag” searching for the proof of insurance while Holcomb held a flashlight over the organizer so that Richardson could see. Holcomb testified that he observed a clear plastic bag containing a “green leafy substance” that appeared to be marijuana in Richardson’s organizer. At that point, the officer placed Richardson under arrest, positioned him against the car trunk, and conducted a “pat-down search.” As a result of the pat-down search, he discovered large amounts of cash bulging in Richardson’s pockets. When Holcomb started to remove the cash, Richardson stepped back from the car trunk and attempted to “turn around on” the officer and acted “very, very nervous.” At this point Holcomb handcuffed Richardson. One of the bills Holcomb removed from Richardson’s pockets was folded in half, then in half again, separate from the other bills. Because it felt “weird — gritty, like sandpaper,” Holcomb unfolded the bill. When he did “a white powdery substance flew from the bill.”

Holcomb decided to call for backup, and Sergeant A1 Hurst responded. While Hurst detained Richardson, Holcomb searched the vehicle. Hurst testified that when Holcomb opened the vehicle door to begin the search, Richardson said, ‘When he looks through my car, my bong’s going to go up.” Holcomb found large amounts of money in the passenger compartment, totaling $17,000.

Holcomb and Hurst testified that they became concerned because the car was parked at a dangerous blind spot on a busy highway with many large trucks “running a little fast” in both directions. At this point, they decided to have the car towed to the sheriff’s department to continue the search of the car. Hurst took Richardson to jail, and Holcomb followed the tow truck and the car to the sheriff’s department.

At the new location, the officers continued the search of the car, finding water bottles with glass tubes inserted in them in the front and back seats of the vehicle. They were joined by an officer from the drug unit, as well as a City of Cumming police officer with his trained narcotics dog. The dog “alerted” and began scratching at the trunk area. When the officers opened the trunk, they found three duffel bags containing substances later determined to be marijuana and cocaine, along with triple-beam scales and baggies.

In reviewing a motion to suppress, “[t]he evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639) (1990).

1. We first consider Holcomb’s initial stop of the car. The trial court correctly observed that Richardson’s presence in the early morning hours in an unoccupied subdivision authorized an initial investigatory stop. See Popham v. State, 214 Ga. App. 775 (449 SE2d 150) (1994). Moreover, Holcomb was authorized to arrest Richardson for the commission of a traffic offense in his presence. This rises beyond articulable suspicion to the level of probable cause to arrest. Accordingly, “the trial court clearly was authorized to find that the officers’ actions were not pretextual. The stop was to effectuate an arrest, and the fact that, at the time of the stop, the officers may have had a suspicion, short of probable cause, that the vehicle would contain contraband does not demand a finding that the stop was pretextual. A rule requiring a law enforcement officer to forego making a traffic stop which he would otherwise be authorized to make merely because he suspects that the vehicle might be engaged in the transport of illicit drugs would have little to commend it, and we have previously declined the invitation to create such a rule.” (Citations, punctuation and emphasis omitted.) Ridgeway v. State, 205 Ga. App. 218, 219 (422 SE2d 4) (1992).

Richardson’s contention that OCGA § 40-8-76.1 (f) prohibits the use of any evidence gathered as a result of a traffic stop based on a violation of the seat belt law is foreclosed by this Court’s decision in Temples v. State, 228 Ga. App. 228 (491 SE2d 444) (1997). “Clearly, the additional language of this Code section pertaining to probable cause was added for the purpose of prohibiting a search of a person or a vehicle based solely on the failure of an occupant of the front seat to wear a seat belt. However, the language was not intended to prevent an officer from making an arrest on additional offenses based upon separate probable cause ascertained through a reasonable inquiry and investigation following the initial stop.” Id. at 230. Once the officer stopped Richardson, he was authorized to ask Richardson for his driver’s license and proof of insurance as part of a reasonable inquiry and investigation after a traffic stop. Id. at 231. The officer’s subsequent observation of the green leafy substance as Richardson looked for his proof of insurance authorized him to place Richardson under arrest for possession of marijuana.

Richardson contended at trial that Officer Holcomb could have observed only the top portion of the bag and could not have been able to see what was in the bag. The trial court noted the conflicting testimony, but found that Officer Holcomb “did see the marijuana that he said he saw.” As the finder of fact, the trial court was authorized to accept the officer’s account of the incident instead of the version presented by Richardson. Morgan, supra.

2. Next, we consider Holcomb’s search of Richardson’s person and the passenger compartment of his car incident to the arrest for possession of marijuana. “Once a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband. Likewise, when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. This court has held that a search is valid as an incident to a lawful custodial arrest where the defendant has been handcuffed and placed in a patrol car while the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a recent occupant of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search.” (Citations and punctuation omitted.) Allison v. State, 217 Ga. App. 580, 581 (1) (459 SE2d 557) (1995).

Here, Richardson was arrested for possession of the marijuana found in his organizer, and the officers were authorized to search his person and the passenger compartment of his vehicle incident to his arrest.

3. Finally, we consider the search of the vehicle’s trunk at the sheriff’s department. At this point, the officers had obtained enough information from the search of Richardson’s person and the passenger compartment of the vehicle to provide probable cause for a search. “[A]n individual’s conduct in response to questioning or attempted questioning may rise to the level of probable cause to conduct an arrest or search. The cumulative effect of the officer[s’] observations and [Richardson’s] conduct was sufficient to meet this standard.” Redd v. State, 229 Ga. App. 364, 366 (494 SE2d 31) (1997). The marijuana found in Richardson’s possession, the large amounts of cash found on his person and in the passenger compartment of his car, the white powdery substance found in his pocket, his nervousness, his attempt at evasive action during the search, and his spontaneous remark to one officer that his “bong [or bond] was going to go up,” suffice to reach the level of probable cause. See also Gebremedhin v. State, 202 Ga. App. 811, 812 (415 SE2d 529) (1992) (combination of suspicious circumstances may amount to sufficient probable cause for warrantless arrest or search). The “alert” to the trunk area of the vehicle by the trained narcotics dog provided additional support for probable cause to search the car trunk. See generally Roundtree v. State, 213 Ga. App. 793, 794-795 (446 SE2d 204) (1994) (probable cause from drug dog’s alert on automobile).

Decided May 1, 1998.

Banks, Stubbs & Neville, Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Allen D. Morris, Assistant District Attorneys, for appellee.

Probable cause authorized the officers to search every part of the vehicle that might have concealed illicit drugs, including the trunk and closed containers. McKinney v. State, 184 Ga. App. 607, 610 (3) (362 SE2d 65) (1987); Durden v. State, 199 Ga. App. 397, 398-399 (405 SE2d 50) (1991). “We need not decide whether an inventory search was proper since the warrantless trunk search had a probable cause basis.” Id. at 399. The removal of the vehicle from its location on a dangerous curve to the sheriff’s department did not affect the officers’ probable cause to continue their search. “[PJolice officers with probable cause to search an automobile on the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. . . . [T]he probable cause factor that developed at the scene still obtained at the station house.” (Citations and punctuation omitted.) Redd v. State, 240 Ga. 753, 754 (1) (243 SE2d 16) (1978).

For these reasons, the trial court did not err in denying Richardson’s motion to suppress.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       A “bong” is a hookah or water pipe. See McConville v. State, 228 Ga. App. 463, 464 (491 SE2d 900) (1997). Another possibility is that the officer misunderstood Richardson, who may have said that his “bond was going to go up.” In either event, the statement may be fairly construed to indicate a consciousness of wrongdoing.

       The officers needed only an articulable suspicion, not probable cause, to bring the narcotics dog to the car. Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996).


author: Blackburn, Judge.

text:
    A98A0924.
    BRAY v. RELIABLE ELECTRIC MOTOR COMPANY, INC. et al.
    (502 SE2d 283)
   Blackburn, Judge.

John Henry Bray sued Reliable Electric Motor Company, Inc., Joanne B. Payne, and Michael B. Payne, seeking, among other things, a declaratory judgment that he owned 52 percent of the stock in the corporation. Defendants moved for summary judgment on this claim, contending that Bray owned only 33 percent of the stock in the corporation. The trial court granted defendants’ motion for summary judgment, and Bray appeals.

On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). The party opposing the motion is given the benefit of all reasonable doubt and all favorable inferences that can be drawn from the evidence. Bishop v. KFC Nat. Mgmt. Co., 222 Ga. App. 1, 2 (473 SE2d 218) (1996).

Bray was an employee of Reliable Electric Motor Company for more than 20 years, having gone to work for the company in 1972. At that time, Reliable was apparently a sole proprietorship owned by Johnny Lester Payne. On May 31, 1978, a certificate of incorporation was issued for a corporation known as Reliable Electric Motor Company, Inc. The articles of incorporation provided that the corporation would not commence business until it received $500 for issuance of shares of stock. It does not appear that the corporation was activated or that shares of stock were issued until after Payne’s death in 1985. Rather, Payne continued to operate the business as a sole proprietorship.

When Bray went to work for Payne in 1972, he and Payne apparently agreed that Bray would be entitled to one-third of the sole proprietorship if he stayed for eight years. On October 7, 1980, Payne and Bray entered into a written agreement purporting to confirm and set forth the terms of this oral agreement. The written agreement recited that Payne was “doing business under the trade name of Reliable Electric Motor Company,” and that Payne “is and was on August 1, 1972, and continuously to the present time, the sole owner of, and doing business as, Reliable Electric Motor Company.” The agreement provided in relevant part that, upon Payne’s death, Bray would be entitled to become a one-third partner in the business along with Payne’s executor. If Bray elected to become a partner, he would be entitled to one-third of the profits of the business and be obligated to bear one-third of the losses thereof. The agreement provided that “[t]he election by [Bray] whether or not to receive and accept a one-third (1/3) partnership interest in said business and become a partner therein must be made known by [Bray] to [Payne’s] Executor or personal representative in writing within thirty (30) days next following the date of death of [Payne].”

Payne died on September 22,1985, leaving a will naming defendant Joanne B. Payne as his executor. In the will, Payne left 34 percent of his business to Joanne Payne, 33 percent of the business to defendant Michael B. Payne, and 33 percent of the business to Bray.

Bray never gave Joanne Payne, as executor, notice of his intention to elect to become a one-third partner in the business pursuant to the October 7,1980 agreement. Instead, after Payne’s death, Bray, Joanne Payne, and Michael Payne transferred their respective interests in the business to the corporation, Reliable Electric Motor Company, Inc., in return for stock in the corporation. Bray and Joanne Payne each received 33 percent of the corporate stock, and Michael Payne received 34 percent of the stock. Bray remained an officer, employee, and director of the corporation until 1994, when his relationship was terminated.

In January 1995, Bray sued defendants, seeking judicial dissolution of the corporation and alleging that he was the owner of 33 percent of the corporate stock. He later amended his complaint to seek, among other things, a declaratory judgment that he was actually the owner of approximately 52 percent of the stock in the corporation.

Bray now claims that the correct number is 55 percent, but he never withdrew the allegation in his amended complaint that he owned 52 percent of the stock. Moreover, his amended complaint did not withdraw, but expressly reaffirmed, the allegation that he owned 33 percent of the stock in the corporation. The amended complaint also did not withdraw, but expressly reaffirmed, the allegations in the original complaint that Joanne Payne and Michael Payne owned 34 percent and 33 percent, respectively, of the stock in the corporation. It should be noted that the original complaint was verified, while the amended complaint was not. Accordingly, even if the amended complaint is seen to be an implied withdrawal of contradictory allegations in the original complaint, the allegations in the original complaint constitute sworn testimony by Bray, while the allegations in the amended complaint have no evidentiary value. Bray’s sworn testimony that Joanne and Michael Payne together owned 67 percent of the stock of the corporation is incompatible with his current claim that he owns 52 percent or 55 percent of the stock. However, given our holding below, it is not necessary to address the conflict between Bray’s allegations.

Under Bray’s reasoning, he became entitled to a one-third interest in the business pursuant to the October 7, 1980 agreement and received 33 percent of the remaining two-thirds pursuant to Payne’s will. Defendants contended that Bray owned only 33 percent of the corporation. The trial court granted defendants’ motion for summary judgment, holding that Bray failed to satisfy the condition precedent specified in the agreement by failing to notify the executor of his intent to become a partner in the business.

Decided May 1, 1998.

Lane & Jarriel, Thomas F. Jarriel, for appellant.

Anderson, Walker & Reichert, Eugene S. Hatcher, for appellees.

1. The trial court correctly granted summary judgment to defendants, although it was not necessary to rely on the condition precedent to do so. Whether or not Bray properly invoked his rights under the October 7, 1980 agreement has no bearing on his entitlement to shares of stock in the corporation. The October 7,1980 agreement related to the business being operated by Payne as a sole proprietorship and purported to allow Bray, upon Payne’s death, to enter into partnership with Payne’s executor to carry on the business. Nothing in the agreement purported to give Bray an entitlement to shares of stock in the corporation, which was not organized until after Payne’s death. Whatever interest Bray might have had in the business after Payne’s death, whether pursuant to the October 7, 1980 agreement or pursuant to Payne’s will, was transferred to the corporation in exchange for issuance of 33 percent of the corporate stock. Having transferred his interest to the corporation in return for such stock, Bray cannot now claim a greater interest in the corporation pursuant to the October 7, 1980 agreement.

2. Our holding above renders it unnecessary to consider whether Bray failed to satisfy a condition precedent to the October 7, 1980 agreement or whether such agreement was intended to be cumulative of the provisions of Payne’s will.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Bray’s complaint also contained several additional counts, none of which is at issue in this appeal.


text:
    A98A1016.
    HEARD v. THE STATE.
    (501 SE2d 884)
   Blackburn, Judge.

John Clinton Heard was convicted of two counts of child molestation and two counts of cruelty to children. On appeal, he contends that the evidence was insufficient to support the verdict, that the child cruelty charges merged with the molestation charges, and that the trial court erred in allowing hearsay evidence. For the reasons discussed below, we affirm.

1. In his first enumeration, Heard contends that the evidence was insufficient to support the verdict. However, the section of Heard’s brief discussing this enumeration consists entirely of a statement of the applicable standard of review, a conclusory statement that the evidence was insufficient, and a plea for this Court to review the record to determine “whether or not” there was evidence to support the verdict. Because Heard has failed to support this enumeration with argument or citation to the record, it is deemed abandoned. See Hunter v. State, 201 Ga. App. 9 (2) (410 SE2d 204) (1991); see also Herndon v. State, 229 Ga. App. 457 (494 SE2d 262) (1997) (court will not cull record on behalf of party in search of error). Moreover, the evidence, construed in the light most favorable to the State, provides ample support for the jury’s verdict under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 1, 1998.

Ricardo G. Samper, for appellant.

Peter J. Skandalakis, District Attorney, Hope F. Smelcer, Assistant District Attorney, for appellee.

2. Heard contends that the two counts of cruelty to children were based on the same conduct constituting child molestation, and that the cruelty convictions therefore merged with the molestation convictions. However, “[b]y failing to raise the issue in the trial court, [Heard] waived his argument that his [child molestation] and [cruelty to children] charges merged. Henderson v. State, 218 Ga. App. 311 (3) (460 SE2d 876) (1995); Edmonson v. State, 212 Ga. App. 449, 451 (3) (442 SE2d 300) (1994).” Basu v. State, 228 Ga. App. 591, 593 (2) (492 SE2d 329) (1997). See also LeGallienne v. State, 180 Ga. App. 108, 111 (4) (348 SE2d 471) (1986).

Moreover, Heard provides no citations to the record to support his contention that the child cruelty convictions related to the same conduct supporting the child molestation convictions, but merely makes a conclusory statement to that effect. There was evidence from which the jury could have found that Heard abused each of his daughters on more than one occasion. Accordingly, we cannot say that the convictions merged as a matter of fact.

3. Heard contends that the trial court erred in allowing testimony regarding statements made by the child victims. However, Heard abandoned this enumeration by failing to address it in his brief. In his brief, Heard argues that trial counsel was ineffective for failing to object to certain other testimony. Because the issue of ineffectiveness was not raised in Heard’s enumerations, it will not be considered. See Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997).

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.


author: Andrews, Chief Judge.

text:
    A96A2023 A96A2024.
    STAR GAS OF HAWKINSVILLE, INC. v. ROBINSON et al.; and vice versa.
    (501 SE2d 598)
    Decided April 14, 1998
    Reconsideration denied May 4, 1998
   Andrews, Chief Judge.

This Court affirmed the trial court’s denial of Eddie Lee Robinson’s motion for new trial in which he argued the jury’s award of damages on his claim for the wrongful death of his wife was inadequate. See Star Gas of Hawkinsville v. Robinson, 225 Ga. App. 594 (484 SE2d 266) (1997). The jury found the Robinsons were 49 percent negligent and Star Gas was 51 percent negligent and awarded Robinson $4,157.25 as surviving spouse on his wrongful death claim. Robinson appealed, claiming the wrongful death award was so inadequate as to be inconsistent with the preponderance of the evidence introduced at trial on the value of his wife’s life. This Court affirmed based upon our holdings in prior cases which stated that, where comparative negligence is involved, we cannot set aside a verdict on the grounds that it is inadequate, citing Beringause v. Fogleman Truck Lines, 209 Ga. App. 470 (433 SE2d 398) (1993) and Palo v. Meisenheimer, 199 Ga. App. 24 (403 SE2d 881) (1991).

On certiorari, the Supreme Court of Georgia reversed, disapproving Beringause and Palo and citing McKinney & Co. v. Lawson, 257 Ga. 222, 224 (4) (357 SE2d 786) (1987) as having changed the long-standing rule that comparative negligence awards are shielded from judicial review. Robinson v. Star Gas of Hawkinsville, 269 Ga. 102 (498 SE2d 524) (1998). The Supreme Court remanded the case for application of the standard set forth in OCGA § 51-12-12 to the verdict. Accordingly, our original judgment in this case is vacated, and the opinion of the Supreme Court is adopted in its place.

The trial court’s order on Robinson’s motion for new trial does not give any authority relied on, merely stating that plaintiffs’ motion for new trial was denied; however, a review of the transcript from the hearing on the motion and the briefs submitted to the court shows that Star Gas put forward the reasoning of Beringause and Palo as authority for its argument that the award should not be set aside. Therefore, as the trial court almost certainly relied on authority that has now been disapproved, we vacate the judgment of the trial court and remand the case for consideration in light of the Supreme Court’s holding.

Judgment vacated and remanded with direction.

Pope, P. J., and Smith, J., concur.

Carr, Tabb & Pope, W. Pitts Carr, Render C. Freeman, for appellant.

W. McMillan Walker, for appellees.


author: Beasley, Judge. McMurray, Presiding Judge, Eldridge, Judge,

text:
    A97A2299.
    HANSEN et al. v. ETHERIDGE et al.
    (501 SE2d 517)
   Beasley, Judge.

The trial court granted summary judgment to defendants in this wrongful death case. “ ‘On appeal from the grant of a motion for summary judgment, we review the record de novo to determine if the moving party has demonstrated there is no genuine issue of material fact and the undisputed facts, construed in a light most favorable to the non-moving party, warrant judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).’ Sagon Motorhomes v. Southtrust Bank of Ga., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).” LPS Constr. Co. v. Ga. Dept. of Defense, 228 Ga. App. 486, 487 (491 SE2d 920).

Jacob Patton stabbed to death 18-year-old Eric Marc Hansen when Hansen attempted to break up a brawl between Patton and another partier, which erupted during a gathering hosted by Sherri Etheridge for her 15-year-old daughter in their apartment. The fatal incident occurred late in the evening at a complex owned by Grisham and Libby (“landlords”) and operated by their resident security manager, Clara Libby. When Clara Libby detected alcohol use by teens at the party, observed “a number of beer cans in Ms. Etheridge’s apartment” and noticed that the party had “spilled out into the parking lot and was getting loud and out of hand,” she told Etheridge to “break up the party.” Etheridge said she would and Ms. Libby left the apartment complex on other business. Etheridge asked people to leave, and many did. Forty-five minutes later, plaintiff’s son, severely impaired by alcohol, was killed.

Harry Hansen and Elaine W. Hansen, both as Eric’s parents and as administrators of his estate, sued the landlords and Etheridge. The Hansens appeal after the trial court granted the defendants’ motions for summary judgment.

Pursuant to the principles stated above and those articulated in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), summary judgment in favor of Etheridge and the landlords is proper for three reasons.

First, there is no proximate cause. In OCGA § 51-1-40 (a) the General Assembly declared “that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.” Subsection (b) applies only when the drinker will soon be driving a motor vehicle, which is not the case here. This statute insulates providers of alcohol from third-party claims of negligence except as provided in subsection (b). Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 893 (2) (473 SE2d 213) (1996).

Etheridge did not consume alcoholic beverages and cause harm; she served the beverages or allowed them to be served. The landlords neither consumed nor served the alcohol. The only persons concerned with the incident who the evidence showed consumed alcohol at the party were some of the participants in the fight, which intoxication plaintiffs allege led to Eric Hansen’s death. The negligence plaintiffs allege against the defendants was the allowance of a party where alcohol was given to underage participants. Because OCGA § 51-1-40 specifically sets forth that only the consumption, not the service of the alcohol, is the proximate cause for injuries inflicted by the intoxicated person, Etheridge and the landlords cannot be liable for Eric Hansen’s death, even if the killer were an underage drinker at the party.

Assuming the statute did not preclude a finding of proximate cause, the undisputed facts would. No evidence shows that the killer, Patton, had anything to drink at the party. Bonowitz, who was fighting with Patton, was 27 years old and legally eligible to drink. Eric Hansen, who was under 21 and had drunk, did not stab himself; Patton stabbed him. There is no proximate cause between the act of the sober Patton stabbing Hansen and the underage drinking at the party.

An analogy would be if Eric Hansen had gotten into a car driven by Patton and was killed in an auto accident caused by Patton. Patton’s negligence or even malice would not be caused by the underage drinking at the party (he not having drunk), and thus could not be logically connected to the alleged negligence of the landlords and Etheridge in allowing or encouraging the party to continue. This is true even if an intoxicated Bonowitz had scuffled with Patton as he drove; Bonowitz was 27 and eligible to drink. The allowance of underage drinking would not have been the cause.

OCGA § 51-1-18 (a), which gives a right of action to custodial parents against any person for serving alcohol to their underage children, does not apply because Eric Hansen was 18 and no longer a minor. Burch v. Uokuni Intl., 192 Ga. App. 861 (386 SE2d 889) (1989); see Eldridge v. Aronson, 221 Ga. App. 662, 664 (1) (472 SE2d 497) (1996) (“recovery by the father pursuant to OCGA § 51-1-18 was barred because his son had attained the age of majority”) (citation omitted).

The second reason for affirmance is that Etheridge asked Patton to leave the party, which he did. Bonowitz and Eric Hansen pursued Patton into the parking lot, at which time Bonowitz and Patton got into a fight that led to the stabbing of Eric Hansen when he tried to break it up. Having asked Patton to leave and having watched him leave her leased premises, what else was Etheridge to do? Was she to make sure that no one from the party followed Patton and provoked a fight somewhere else? Such seems hardly reasonable, for its strains credulity to expect a host under these circumstances to foresee that a nondrinking and uninvited party participant would engage in a malicious stabbing of another party participant off her premises.

The third reason for affirmance is that Eric Hansen voluntarily entered into the fight, albeit as a peacemaker. The cause of action against the landlords is based on premises liability, which requires them to have knowledge of the danger superior to that of the victim. Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997). Where someone inserts himself into a fight, “the superior knowledge must always remain with the combatants, as they, by their voluntary participation, have selected the time, date, and place for the altercation.” Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1) (459 SE2d 465) (1995). Having inferior knowledge, the landlords cannot be held liable.

The cause of action against Etheridge fails on similar grounds. If a guest is “an active participant in a brawl which left him injured,” a social host is not liable. Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165) (1994). “Even if a social host is negligent, he is not liable to an injured guest if that guest is ... an active participant in the sequence of events resulting in his injury. [Git.]” Id. Etheridge’s described actions cannot make her liable for the subsequent death as a matter of law.

For these reasons, summary judgment to Etheridge and the landlords was required.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Ruffin, J., concur. Smith, J., concurs in the judgment only. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

This wrongful death case represents why Georgia’s criminal sanctions against underaged drinking remain ineffective. Contrary to the majority’s holding, the facts in this case would authorize a finding that the illegal use of alcohol by teens during an adult sanctioned, but loosely supervised party resulted in the stabbing death of 18-year-old Eric Marc Hansen (“the victim”). I, respectfully, dissent because I believe that such illegal teenage drinking activities pose lethal risks, within a potential realm of legal foreseeability; that a social host may be found liable (by a jury) for damages stemming from such illegal conduct, but that this liability should only attach if the host is aware of the criminal activity and fails to stop it. See Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2) (415 SE2d 654). I also believe the same rule should apply if a security provider observes illegal teenage drinking but fails to report the crime to police.

Jacob Patton stabbed and killed the victim when the victim attempted to break up a brawl which erupted during a party that Sherri Etheridge hosted for her 15-year-old daughter. The fatal incident occurred late in the evening, at an apartment complex owned by Grisham and Libby (“the landlords”) and operated by their resident security manager, Clara Libby. Although Ms. Libby detected illegal alcohol use by teens at the party, observed “a number of beer cans in Ms. Etheridge’s apartment” and noticed that the party had “spilled out into the parking lot and was getting loud and out of hand[,]” she did not call for police assistance as was required under her watch as resident security manager. Other than telling Ms. Etheridge to “break up the party,” Ms. Libby did nothing. She instead left the apartment complex on other business. Forty-five minutes later, the teenage victim, severely impaired by alcohol, was stabbed to death when he attempted to break up a violent brawl between two other party-goers.

Harry Hansen and Elaine W. Hansen, individually (as the victim’s parents) and as administrators of the decedent’s estate, filed this wrongful death action against the landlords and Sherri Etheridge. The Hansens filed this appeal after the trial court granted the landlords’ and Sherri Etheridge’s respective motions for summary judgment.

“Under [Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2), supra], a social host may be liable to an innocent guest who is injured if the host is aware of a dangerous activity going on at his party and fails to stop it.” Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165). Construing the evidence in the case sub judice most strongly against Sherri Etheridge, she not only knew her teenage daughter’s friends were consuming alcohol illegally, but she closed her eyes to this illegal conduct as her daughter’s party progressively went out-of-control. Under such circumstances, considering proof that the teenage victim was severely intoxicated when he stepped between two brawling party-goers, and recognizing alcohol as an unpredictable mind-altering substance — too dangerous under Georgia law for teenage consumption, I would hold that genuine issues of material fact remain as to Sherri Etheridge’s alleged negligent parental conduct and supervision. Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2), supra. See Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467), and cits. Compare Manuel v. Koonce, 206 Ga. App. 582, 583 (1), 584 (b) (425 SE2d 921), and Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 893 (2) (473 SE2d 213). Further, because the landlords’ security manager admitted that she observed illegal teenage drinking activities but failed to summon for police assistance, I would hold that genuine issues of material fact remain as to the landlords’ liability of providing inadequate security services at their apartment complex. Such holdings not only square with the facts in this case and traditional tort law principles (as Judge Eldridge demonstrates in his dissent), but also encourages enforcement of Georgia’s laws against underage drinking by placing some responsibility on adults. See Morella v. Machu, 563 A2d 881, 884 (N.J.Super.A.D. 1989).

I concur fully with Judge Eldridge’s dissent.

Eldridge, Judge,

dissenting.

While I concur entirely with Presiding Judge McMurray, I suggest the following analysis that shows that the limitations of OCGA § 51-1-40 do not apply and that the third party criminal conduct was foreseeable so that the defendants’ wrongful conduct were concurrent causes of the death with the acts of the killer, Patton.

The evidence raises factual issues that Sherri Etheridge engaged in various possible acts of criminal conduct in her apartment and in the apartment complex in having the party for her minor daughter: knowingly serving alcohol to minors, OCGA § 3-3-24; knowingly furnishing alcohol to an underage person, OCGA §§ 3-3-23, 3-3-23.1; contributing to the delinquency of minors, unruliness, OCGA § 16-12-1 (b) (1) delinquent act, and (2) to be an unruly child; maintaining a disorderly house, i.e., encouragés drinking, other misbehavior, or common disturbance of the neighborhood or ordinary citizens, OCGA § 16-11-44. Since Ms. Etheridge knowingly engaged in criminal conduct involving others, then it was foreseeable that others would also engage in criminal conduct, fighting, arising from the drunken and disorderly circumstances created by her, a loud drunken party.

The landlord had constructive notice through the resident manager who had actual knowledge that criminal conduct on the premises was occurring, because the resident manager saw and heard such conduct both inside and outside the apartment in the parking area and saw the empty beer cans. Instead of calling the police and waiting to see that the party was ended and the participants left peacefully, the resident manager beat a hasty retreat on the pretext that she had business off-site, abdicating her duty to keep the premises safe for those she knew were present. Where the owner and occupier of the premises has actual or constructive knowledge of the drunken conduct and condition of the persons on the premises, a duty arises to exercise ordinary care to protect those legitimately present from the risk of harm from such drunken and disorderly conduct; in this case, Ms. Etheridge and the resident manager of the landlord had actual notice of the drunkenness and disorderly conduct of the persons at the party. See OCGA § 51-3-1; Borders v. Bd. of Trustees, V. F. W. Club 2875, 231 Ga. App. 880 (500 SE2d 362) (1998).

OCGA § 51-1-40 was created by Ga. L. 1988, pp. 1692, 1693-1694, § 1. The descriptive title of the act reads: “To amend Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general tort provisions, so as to provide that certain persons shall not be liable for the acts of intoxicated persons who are of legal drinking age; to provide that certain persons may be liable for the acts of certain intoxicated persons; to provide for certain legal proofs and assumptions; to provide that under certain circumstances certain persons who own, lease, or occupy premises shall not be liable for the acts of certain intoxicated persons; to provide for certain legislative findings; to provide for related matters; to provide for applicability.” Such language of OCGA § 51-1-40 is in derogation of common law that made a social host liable to third persons for furnishing alcohol to a guest who causes injury as a result of such intoxication. Sutter v. Hutchins, 254 Ga. 194, 195-197 (1) (327 SE2d 716) (1985).

Therefore, OCGA § 51-1-40, being in derogation of common law, must be strictly construed against the party seeking to use it as a shield from liability. Bo Fancy Productions v. Rabun County, 267 Ga. 341, 343 (1) (478 SE2d 373) (1996); Johnson v. State, 114 Ga. 790, 791 (40 SE 807) (1901). OCGA § 51-1-40 (b) seeks to deal only with tort liability from knowingly furnishing alcohol which results in injuries or death from drunk driving. Riley v. H & H Operations, 263 Ga. 652, 653-654 (1) (436 SE2d 659) (1993). OCGA § 51-1-40 (b) does not exclude liability against a person who furnishes alcohol to minors or underage persons with actual knowledge. Riley v. H & H Operations, supra at 654-655 (2). It therefore follows that a tortfeasor who furnishes alcohol to an underage person can be liable for causing such intoxication which in turn causes a tortious injury by means other than driving, because OCGA § 51-1-40 (b) only seeks to regulate liability for drunk driving, which limitation is in derogation of common law, and the “legal presumption of causation,” which is a legal presumption in derogation of common law, in a strict construction of the statute, applies only to drunk driving. Strict construction of this statute confines its exclusion from liability only to drunk driving. See generally Sutter v. Hutchings, supra at 196-198.

Decided April 3, 1998

Reconsideration denied May 4, 1998

Adams & Adams, Charles R. Adams III, Carl A. Veline, Jr., for appellants.

Howard G. Sokol, Phyllis J. Holmen, Lisa J. Krisher, Martin, Snow, Grant & Napier, Thomas P. Allen III, Michael M. Smith, for appellees.

Thus, the defendants may be liable for furnishing alcohol or allowing the furnishing of alcohol to underage persons and persons visibly intoxicated, who while intoxicated are injured. Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 814 (479 SE2d 401) (1996); see generally Sutter v. Hutchings, supra. Further, this Court has held that OCGA § 51-1-40 does not exclude liability under another statute that imposes tort liability, i.e., OCGA § 51-3-1. See Eldridge v. Aronson, 221 Ga. App. 662, 663 (1) (472 SE2d 497) (1996); Borders v. Bd. of Trustees, VFW, supra. OCGA § 51-1-40 (b) excludes liability where the intoxicated person injures himself but does not exclude liability where the drunk is injured by a third party, as in this case. Griffin Motel Co. v. Strickland, supra at 813-814.

As to causation, a fight at a drunken and disorderly party is not too remote to be reasonably foreseeable and occurred at the premises where Ms. Etheridge was supervising the party and where the resident manager had actual knowledge that the party had gotten out of hand and a duty to control the unsafe environment of the party. Ms. Etheridge caused the victim to become drunk as well as other participants in the fight, although she did not cause Patton to become drunk. Ms. Etheridge’s conduct was not the proximate cause but a concurrent proximate cause; it was reasonably foreseeable that a fight would break out at this out of control party. Thus, her conduct was a concurrent proximate cause. “We therefore find that the defendant hostess and her daughter owed a duty to those [guests at the party] not to subject them to an unreasonable risk of harm by furnishing alcohol to a person under [21] who was noticeably intoxicated and who these defendants knew would [be at risk from others’ wrongful conduct at the out of control party].” Sutter v. Hutchings, supra at 197. Likewise, the resident manager could not abdicate her duty to keep the premises safe from the conduct of mean drunks at an out of control party by leaving before the situation was made safe.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

       Although the events in the case sub judice are hotly disputed, I enter these facts because “ ‘[o]n appeal from the grant of a motion for summary judgment, we review the record de novo to determine if the moving party has demonstrated there is no genuine issue of material fact and the undisputed facts, construed in a light most favorable to the non-moving party, warrant judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).’ Sagon Motorhomes v. Southtrust Bank of Ga., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).” LPS Constr. Co. v. Ga. Dept. of Defense, 228 Ga. App. 486, 487 (491 SE2d 920).


author: Beasley, Judge.

text:
    A98A0016.
    AUBURN MARANATHA INSTITUTE, INC. v. GEORGIA KOREAN CHURCH.
    (501 SE2d 846)
   Beasley, Judge.

Following a bench trial, the court entered judgment awarding Auburn Maranatha Institute, Inc. (AMI) possession of property owned by it and used by Georgia Korean Church (GKC) as a place of worship. The court refused to award any rent to AMI and awarded GKC sums it had spent in improving the property. AMI appeals.

GKC is an unincorporated association of Seventh Day Adventists and a congregational unit of the South Atlantic Conference of Seventh Day Adventists (SACA). AMI is a non-profit organization which owns real estate. Lee was president of AMI and also the pastor of GKC from 1982 until 1989. In 1988, GKC moved to a church facility consisting of two buildings located on acreage owned by AMI. Most GKC members believed, based on Lee’s statements, that they were given free use of the facility as their worship place until the return of Christ. They proceeded to make permanent improvements to the property at a cost of $84,125.85.

In 1994, AMI notified GKC that it would be required to pay rent in the amount of $700 per month or surrender possession of the premises. When rent was not forthcoming, AMI instituted this proceeding against GKC to obtain possession of the premises, as well as past-due and future rent. GKC answered and filed a counterclaim which, among other things, charged AMI with fraud and asserted that it had been unjustly enriched by the value of AMI’s improvements. AMI moved to dismiss on various grounds, including the statute of limitation. The court permitted SACA to intervene.

Judgment was entered in favor of GKC in the principal sum of $84,125.85. Although the court found no evidence of intentional fraud by anyone, it ruled that GKC was entitled to an award in an amount equal to its costs in improving the property based on its unjust enrichment theory.

1. AMI first enumerates error in a ruling by the court that Lee’s failure to correct the church members’ misunderstanding about their right to use the church facilities constituted a breach of the confidential relationship he occupied with them.

(a) AMI challenges the sufficiency of the evidence to establish the existence of a confidential relationship between Lee and GKC. But “[i]t can be found that a clergyman occupies a confidential relationship toward a member of his church. [Cits.]”

(b) AMI argues that the court’s ruling is contrary to the rule of law stated in Hodges v. Mayes, that “where an agent represents two adverse parties in a transaction with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the agent so situated where the opposite principal is not in complicity with the agent or in no way participates in the tortious act.”

Assuming that Lee acted as agent for the church congregation with regard to construction of the improvements to the church, the evidence authorized a finding that AMI was complicitous in his tortious acts. Lee admitted knowing that members of the church congregation had made the improvements believing they had, more or less, the indefinite right to use the facilities. He rationalized that, as president of AMI, his intent was to allow such an arrangement only so long as good relations existed between AMI and the congregation. Hodges is thus distinguishable.

(c) Since the trial court based its decision on unjust enrichment and not fraud, AMI’s argument that the evidence shows the absence of the required elements of fraud is irrelevant. In ruling on certain pretrial motions, the court preliminarily found that a legal contract existed between AMI and GKC. But in its final judgment, after a change in the evidentiary posture, the court found that no such contract existed. “[T]he theory of unjust enrichment applies when as a matter of fact there is no legal contract . . ., but where the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for.”

2. AMI contends the trial court’s decision is contrary to Engram v. Engram. That case is not on point because there the owner had told the tenant who was now claiming unjust enrichment that she should not make improvements to property that did not belong to her, she said it would not cost the owner “a dime,” and the tenant did not establish that the improvements conferred any benefit on the owner by enhancing the value of the property.

AMI acknowledges that Lee told various members of his congregation that GKC could use the facility at no cost until the return of Christ. Lee admitted that the value of AMI’s property was enhanced in an amount at least equal to the money spent on the improvements.

Decided April 17, 1998

Reconsideration denied May 4, 1998.

David W. Graybeal, Jr., for appellant.

Cochran, Camp & Snipes, Randall J. Sauder, James B. Gordon, for appellee.

3. AMI asserts as error the trial court’s refusal to award it rent.

The court ruled, as a matter of law and equity, that AMI was not entitled to rent from the church. It based this on determinations that no evidence was presented to establish the reasonable rental value of the premises and that there was no meeting of the minds between AMI and GKC as to any right to GKC’s use of the AMI facility as a worship place.

Evidence of rental value was provided by GKC treasurer Kim, who testified that the reasonable rental value of the church was $100 per week. In that GKC was awarded reimbursement for the expense of improvements, AMI was due rent in a reasonable amount after it put GKC on notice that it was no longer entitled to occupy the premises free of charge. See OCGA § 44-7-5. Since AMI was required by OCGA § 44-7-7 to give GKC 60 days’ notice in order to terminate the gratuitous tenancy at will, AMI had a right to its choice of either possession of the premises or rent beginning 60 days after its demand. GKC has acknowledged that rental in the amount of $100 per week would be reasonable.

4. AMI’s final enumeration has been withdrawn.

The trial court’s award to GKC of its costs in improving the property is affirmed. To the extent the court refused to award AMI rent of $100 per week beginning 60 days after its demand for possession or rent until GKC vacated the premises, the judgment is reversed.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.

        Bryan v. Norton, 245 Ga. 347, 348 (1) (265 SE2d 282) (1980); see generally OCGA § 23-2-58; Frame v. Hunter &c., 227 Ga. App. 169, 171 (1) (488 SE2d 713) (1997); compare Thomas v. Eason, 208 Ga. 822, 827 (3) (69 SE2d 729) (1952).

       240 Ga. 643, 644 (1) (242 SE2d 160) (1978).

       (Citation and punctuation omitted.) Smith v. McClung, 215 Ga. App. 786, 789 (3) (452 SE2d 229) (1994).

       265 Ga. 804, 806 (2) (463 SE2d 12) (1995).


text:
    A98A0454.
    ROBERTS v. PEARCE.
    (501 SE2d 555)
   Andrews, Chief Judge.

T. C. Roberts brought this direct appeal from a final order awarding Thomas M. Pearce, Jr. attorney fees under OCGA § 9-15-14. Appeals from orders awarding attorney fees under this Code section require compliance with the discretionary appeal procedure of OCGA § 5-6-35 (a) (10) unless the award is appealed as part of an otherwise directly appealable judgment. Stancil v. Gwinnett County, 259 Ga. 507 (384 SE2d 666) (1989); Haggard v. Bd. of Regents of the University System, 257 Ga. 524 (360 SE2d 566) (1987).

Here, when Roberts filed his notice of appeal in this case on September 4, 1997, he had pending a direct appeal from an order granting Pearce’s motion for summary judgment. However, Roberts failed to file his brief and enumerations of error on time and that appeal was dismissed under Court of Appeals Rule 26 (a).

Therefore, on October 17, 1997, when this case was docketed, Roberts no longer had a direct appeal pending in this Court. The issue now is whether the appeal from the award of attorney fees is still properly before us after the directly appealable judgment was dismissed.

We find no case law directly on point. However, in similar situations, we have dismissed the appeal. For instance, in Hutchison v. Nat. Svcs. Industries, 191 Ga. App. 885 (383 SE2d 212) (1989), we held that after the main appeal was dismissed, there was no independent jurisdictional basis for the cross-appeal and, therefore, it must also be dismissed. Id. at 886. Likewise, in Guy v. Roberson, 214 Ga. App. 391 (448 SE2d 60) (1994), we held that a cross-appeal may survive the dismissal of the main appeal only where the cross-appeal can stand on its own merit. Id. at 392-393. Also, in Serco Co. v. Choice Bumper, 199 Ga. App. 846 (406 SE2d 276) (1991), when the main appeal was withdrawn, we held that the cross-appeal from the denial of a motion for summary judgment must be dismissed as there was no application under OCGA § 5-6-34 (a) for interlocutory review. Id. at 847. Finally, in Jones Roofing &c. Co. v. Roberts, 179 Ga. App. 169 (345 SE2d 683) (1986), we held that this Court has no jurisdiction “to entertain a cross-appeal which must derive its life from the main appeal.” Id. at 170. Because the cross-appellant had not filed an application for discretionary review, the cross-appeal was dismissed because it could not stand in its own right. Id.

Applying this case law to the instant case, we find that because an award of attorney fees under OCGA § 9-15-14 is subject to the discretionary appeal procedures of OCGA § 5-6-35 (a) (10), the appeal cannot stand on its own merit. Therefore, once the main appeal was dismissed, we no longer had independent jurisdiction of this appeal. As there was no application under OCGA § 5-6-35 (a) (10) for discretionary review, the appeal must be dismissed. Jones, supra at 170.

Appeal dismissed.

McMurray, P. J., and Blackburn, J., concur.

Decided April 13, 1998

Reconsideration denied May 4, 1998

Mark T. Sallee, for appellant.

Cashin, Morton & Mullins, James M. Sherman, for appellee.


text:
    A98A0535.
    STANDARD FIRE INSURANCE COMPANY v. KENT & ASSOCIATES, INC.
    (501 SE2d 858)
   Andrews, Chief Judge.

Standard Fire Insurance Company (Standard) appeals from the trial court’s order granting summary judgment to Kent & Associates, Inc. (Kent) on Standard’s claim for indemnification, subrogation, and contribution as a result of problems at the Lake Lanier Islands wave pool. Kent argued in its motion for summary judgment that Standard’s claims were barred by the Statute of Repose. For the reasons which follow, we agree and affirm.

This case arose when a large amount of chlorine was released into the wave pool at Lake Lanier Islands, resulting in numerous personal injury claims. The accident occurred because an interlock device that was called for in the project plans was not installed at the circulating pump starter. The purpose of the interlock device was to stop the injection of chlorine into the circulating system in the event that the circulating pump were to shut down.

Standard’s insured, Foster & Cooper, was the general contractor hired to build the wave pool. They contracted with Kent to do all the electrical work for the project. The project manager for Foster & Cooper testified that it was his understanding that Kent was responsible also for installing the interlock device because it was shown on the electrical drawings, but this appears to have been a disputed issue.

The wave pool had been open to the public for over two years when, on July 10, 1990, the circulating pump shut down. Because there was no interlock device, the chlorinator continued to inject chlorine into the system. When the circulating pump was turned back on, this large buildup of chlorine was injected into the wave pool, injuring people who were in the pool at the time.

In its motion for summary judgment on Standard’s claims for indemnification and contribution, Kent argued that since Standard did not file its claim until June 21, 1996, the claim is barred by the eight-year Statute of Repose. This statute, codified at OCGA § 9-3-51 (a), provides in pertinent part:

“No action to recover damages:

“(1) For any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property;

“(2) For injury to property, real or personal, arising out of any such deficiency; or

“(3) For injury to the person or for wrongful death arising out of any such deficiency

shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.” OCGA § 9-3-51 (a).

Standard does not dispute that the wave pool project was completed and turned over to Lake Lanier Islands prior to June 21,1988. In addition, as Kent points out, claims for indemnification and contribution are among those contemplated by the Legislature when it enacted the statute. See Gwinnett Place Assoc., L.P. v. Pharr Engineering, 215 Ga. App. 53, 55 (449 SE2d 889) (1994); Krasaeath v. Parker, 212 Ga. App. 525 (441 SE2d 868) (1994).

1. Standard claims, however, that the Statute of Repose does not apply in this case because installation of an interlock device is not “an improvement to real property” as that term is used in OCGA § 9-3-51 (a). It argues that the interlock is not an integral part of the electrical equipment, but is a safety device which attaches to the circulating pump starter. Standard contends that it is not an integral part of the starter but rather is a piece of “personalty” that can be added or omitted.

In determining what constitutes an improvement to real property, the Supreme Court of Georgia has used a “commonsense analysis” to decide the question. Mullis v. Southern Co. Svcs., 250 Ga. 90, 93-94 (296 SE2d 579) (1982). Factors important to this commonsense analysis are: “(1) is the improvement permanent in nature; (2) does it add to the value of the realty, for the purposes for which it was intended to be used; (3) was it intended by the contracting parties that the ‘improvement’ in question be an improvement to real property or did they intend for it to remain personalty.” Id. at 94.

Here, in looking at the three factors of this analysis, we find that the device satisfies the first factor in that it was intended to be permanent in nature. It adds to the value of the property in that it was a necessary component of the system in order to prevent accidents such as the one which occurred here. As to the third factor, whether the contracting parties intended for the device to remain personalty or intended for it to be an improvement to the real property, there can be no question that the parties intended for the device to be installed permanently on the chlorine circulation system.

The court in Mullis also decided the issue of whether a component of a system which was an improvement to real property was itself an improvement to real property. The court found that if a component was an essential or integral part of the improvement to which it belongs, then it is itself an improvement to real property. However, if it were an “optional frill,” unnecessary to the functioning of the system, then it would not be an improvement. Mullis, supra at 94. In Mullis, the component at issue was an air circuit breaker in a Georgia Power Company plant. The court found this to be an essential part of the plant’s operating system.

In concluding that the component was an integral part of the improvement, the court in Mullis noted that the component was part of the original contract and design. Mullis, supra at 94. That is also true in this case. Further, after the injuries that occurred at the wave pool because the interlock device was not installed, Standard cannot argue that the device is an “optional frill.”

Therefore, the record shows without dispute that the interlock device was an integral part of the system that should have been installed pursuant to the project’s specifications. Mullis, supra; Beall v. Inclinator Co. of America, 182 Ga. App. 664, 665 (356 SE2d 899) (1987). Accordingly, we find the interlock device was an “improvement to real property” for purposes of the Statute of Repose.

2. Standard also argues that “substantial completion” as contemplated by OCGA § 9-3-50 did not occur until after July 10, 1990; therefore, the Statute of Repose does not apply. Standard contends that under the statute, the relevant inquiry is not when the project as a whole was completed, but rather when the portion of the project at issue was substantially completed. Since the interlock device was not installed until July 10, 1990, Standard claims that is when it was substantially completed.

But, as Standard points out, the interlock device was a very minor portion of the project. Assuming Kent was responsible for installing the device, it would have required only a few minutes for them to install it. Standard’s contention that the installation of the interlock device was an entirely separate project from the one in which Kent undertook to perform the installation of all the electrical equipment is not persuasive.

The statutory definition also points to a contrary conclusion. OCGA § 9-3-50 defines “substantial completion” as “the date when construction was sufficiently completed, in accordance with the contract as modified by any change order agreed to by the parties, so that the owner could occupy the project for the use for which it was intended.” OCGA § 9-3-50 (2). Here, there is no dispute that the wave pool was turned over to the owner more than eight years before Standard brought this claim and had been operating for over two years before the accident occurred. Accordingly, under the statutory definition, the project was “substantially completed.”

Decided April 20, 1998

Reconsideration denied May 4, 1998

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, for appellant.

Tittsworth, Grabbe & Spillers, Charles L. Spillers, for appellee.

3. Standard also points out that Kent’s amendment to the motion for summary judgment was not filed until two days before the hearing and should not have been considered. The amendment consisted solely of an affidavit of the Georgia State Financing & Investment Commission showing that construction on the project was completed and the project was accepted on April 15, 1988. We need not consider this enumeration as the affidavit was cumulative to facts already stipulated and there is nothing in the record to show the judge took this into consideration when ruling on the motion.

Judgment affirmed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0842.
    POWELL et al. v. DANIELS CONSTRUCTION & DEMOLITION, INC.
    (501 SE2d 578)
   Judge Harold R. Banke.

In this personal injury case, Christine Powell sued Daniels Construction & Demolition, Inc. (“Daniels”), alleging negligence. Powell’s employer, the Glynn County Board of Education (the “Board”), intervened to enforce its subrogation lien on workers’ compensation benefits Powell received. After the jury awarded her $45,381, with $20,000 of that due on the Board’s subrogation claim, Powell appealed, enumerating three errors.

This case arose after one of Daniels’ dump truck drivers failed to yield the right of way at a stop sign and collided with Powell, a school bus driver. The school bus overturned on its side, and Powell sustained physical injury. The Board covered $21,555.58 in medical expenses on Powell’s behalf and paid her $7,168.10 in disability benefits. At trial, Daniels admitted liability and contested only the amount of damages. Held:

1. Powell contends that the trial court’s instruction permitting the jury to ignore any expert testimony amounting to mere speculation requires reversal. Notwithstanding her contention to the contrary, Powell failed to demonstrate that she objected to the charge or reserved objections. See Hunley v. State, 227 Ga. App. 234, 235 (1) (488 SE2d 716) (1997). Powell’s failure to include the purportedly speculative testimony in the record on appeal precludes our review of this enumeration. Robbins v. State, 207 Ga. App. 556, 557 (1) (428 SE2d 450) (1993).

2. The absence of a trial transcript and Powell’s failure to show proof that she preserved the error also limit the analysis of her second enumeration. Powell maintains that the trial court erred in giving an allegedly burden-shifting preexisting condition charge that limited her recovery to damages directly and proximately resulting from Daniels’ negligence. Powell claims Emory Univ. v. Lee, 97 Ga. App. 680, 694-695 (3) (104 SE2d 234) (1958), disapproves the charge. In Lee, the trial court refused to give a substantially similar charge because the facts did not support it and the charge required the plaintiff to present “competent medical evidence” to meet his burden of showing which injuries the defendant caused. Lee, 97 Ga. App. at 695. In the absence of a trial transcript, we cannot determine whether the facts supported the charge. See Foist v. Atlanta Big Boy Mgmt., 166 Ga. App. 304, 306 (3) (304 SE2d 111) (1983); compare Don Swann Sales Corp. v. Edward, 194 Ga. App. 807, 808 (2) (392 SE2d 29) (1990). While we do not endorse the charge given, Powell provided no authority showing it contained a substantial error which was harmful as a matter of law. OCGA § 5-5-24 (c). Moreover, unlike Lee, the charge did not include the “competent medical evidence” requirement.

3. In her final enumeration, Powell challenges the trial court’s $20,000 reduction of her award to cover the Board’s subrogation lien. Under Georgia workers’ compensation law, employers of injured employees “shall have a subrogation lien, not to exceed the actual amount of [any workers’] compensation paid . . . against [any] recovery.” OCGA § 34-9-11.1 (b); Astin v. Callahan, 222 Ga. App. 226, 228 (2) (474 SE2d 81) (1996). This language clearly authorizes reducing the award by the amount of the lien. See Rowland v. Dept. Admin. Svcs., 219 Ga. App. 899, 901 (466 SE2d 923) (1996) (the lien is on the recovery, meaning the money in the injured employee’s hands). “[B]ut a primary legislative concern was that the injured employee first be made whole. [Cits.]” Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 335 (494 SE2d 29) (1997). Absent a transcript, we cannot make this determination. Therefore, we must assume the trial court acted properly. See Hulsey Pool Co. v. Troutman, 167 Ga. App. 192, 194 (2) (306 SE2d 83) (1983) (physical precedent only).

Decided April 14, 1998

Reconsideration denied May 4, 1998

Walter D. Adams, for appellants.

Brannen, Searcey & Smith, David R. Smith, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The charge stated: “The plaintiff is entitled to recover only damages directly and proximately resulting from the negligence of the defendant. The defendant is not responsible for any physical infirmities which are attributable to natural causes. And the plaintiff would not be entitled to recover damages for injuries or ailments that she experienced from any physical condition existing before such negligence of the defendant which the defendant did not aggravate. Nor would the plaintiff be entitled to recover damages from the defendant for any injuries or ailments that the plaintiff may have experienced after said negligence of the defendant but which were not connected with or resulting from that negligence. In this connection, the burden is upon the plaintiff to establish by a preponderance of the evidence just which of the damages and injuries or ailments . . . resulted from the negligence of the defendant and which of her damages and injuries and ailments were caused by some source other than the negligence of the defendant.”


author: McMurray, Presiding Judge.

text:
    A98A0002.
    THOMASSON v. RICH PRODUCTS CORPORATION.
    (502 SE2d 289)
   McMurray, Presiding Judge.

Plaintiff Linda Thomasson brought this tort action against defendant Rich Products Corporation (“Rich Products”), alleging she purchased “a bagel from Infantry Hall cafeteria at Ft. Benning, Georgia[; that when plaintiff] began to eat the [bagel, she discovered] there was a piece of metal [therein; that this] metal in the bagel resulted in fractures to [plaintiff’s] teeth and TMJ requiring dental assistance^ and that defendant Rich Products] allowed foreign materials to be sold as a bagel thereby causing [permanent] damage to the plaintiff’s mouth.”

Plaintiff’s Exhibit 1 consists of an oblong “piece of metal and some bagel dough,” approximately one inch long and a half-inch wide, with what appears to be a staple or other sharp prong-like portion protruding. At trial, plaintiff explained that when she “bit down on it [the bagel, she] felt something that to [her], it felt like a hard crust. And [she] bit down in it again and . . . said, well, this doesn’t feel right, and [she] had a sharp pain in [the] left side on the jaw, [her] mouth, and that’s when [she] spit it out. ... To [plaintiff] it looked like, the first thing that [came] to . . . mind, [plaintiff] thought it was a staple. . . .”

Nathan Carter, a cook at the Infantry Hall cafeteria, sold plaintiff the bagel in question. Nathan Carter explained the bagels “come from Kraft out of Atlanta ... in pasteboard cases, [containing sealed] boxes.” The sealed boxes of bagels are stored in a freezer until needed. When Nathan Carter got bagels that morning, the “box was sealed.” Ronnie Schifano, a food activity manager at Ft. Benning confirmed that, at the time of plaintiff’s mishap, the Infantry Hall cafeteria was selling Rich Products’ bagels, in that the cafeteria was not selling anyone else’s bagels. He further confirmed the bagels arrive in a sealed box because “[w]e don’t accept anything that’s broken.” But he agreed he had no personal knowledge of what entity actually produced the bagels and confirmed the cafeteria never got anything directly from Rich Products; items came through Kraft.

According to Christopher Loucks, defendant’s Manager of Inventory Planning, defendant does not manufacture bagels; rather, they were manufactured by Sir Bagel Company, which ships the bagels in sealed containers to defendant’s warehouse in West Seneca, New York. At no time does Rich Products open the boxes of bagels, or repackage the bagels, alter the boxes, or ship bagels directly to Ft. Benning. Rich Products does not participate in any way with how Sir Bagel manufactures bagels. Loucks confirmed that defendant puts the bagels “in a box that has Rich Products on it[, and they are] sold as a Rich Products Company product. . . .” But on cross-examination, Loucks further confirmed that “if you have a bagel that has no . . . marks [yet] you find metal in it, that metal had to have got in there in the manufacturing process where it was baked. . . .”

At the close of all the evidence, defendant moved for a directed verdict, arguing the undisputed evidence showed that Rich Products did not manufacture the bagels, but Sir Bagel did, and that Rich Products received the bagels in prepackaged sealed containers. Consequently, Rich Products had no knowledge or notice of a hidden latent defect in any particular bagel, much less the one plaintiff ate. The trial court concluded “Rich Products Corporation was not liable for Plaintiff’s injuries and damages because [it was] not the manufacturer,” and dismissed plaintiff’s case. This appeal followed. Held:

1. Plaintiff disavows any recovery under OCGA § 51-1-11 (product liability in the absence of privity). Rather, she stakes her claim under OCGA § 51-1-23 (sale of unwholesome foods), which provides: “Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.” Plaintiff contends the direction of the verdict was erroneous because the “sealed carton doctrine does not apply to Rich Products Corporation because Rich Products Corporation was responsible for the goods that it had manufactured and placed in its box. [Specifically,] Rich Products had the bagels made according to its recipe and design, and had them placed in its container and sealed with its name on the box as their product.” Consequently, plaintiff contends Rich Products ought to have known of the presence of a staple in one of its bagels.

“In the context of food products, ‘if the goods sold are in the original package sealed and unbroken, and it is a perfect appearing package, and it is impossible, in the practical use of the package in the retail trade, to discover the hidden unwholesomeness or imperfection without breaking the package, and the dealer has no positive knowledge, or notice amounting to imputed knowledge, of the hidden imperfection, ordinary care does not require the dealer to open the same, and as a matter of law he would not be negligent under these circumstances.’ (Citation and punctuation omitted.) Brock v. Simpson, 103 Ga. App. 800, 801 (120 SE2d 885) (1961); see also Davis v. Williams, 58 Ga. App. 274 (2) (198 SE 357) (1938).” Sirmons v. Derst Baking Co., 221 Ga. App. 127, 128 (470 SE2d 515).

In the case sub judice, the bagel was not packaged or wrapped when sold at retail, but there is no evidence that the staple was noticeable upon inspection. Rather, by all outward appearances, it was a perfect bagel. It would be impossible, in the practical retail trade, to break open every baked product looking for an unsuspected or hypothetical flaw. Defendant Rich Products had no positive knowledge or notice of the imperfection here observed, since the staple had already escaped discovery by metal detectors at the Sir Bagel baking facilities. In our view, defendant Rich Products as distributor “ ‘is not prima facie liable in damages to a consumer for injuries occasioned by [the] deleterious condition of the [bagel wdth a staple baked into it], since [Rich Products] could not in the exercise of ordinary diligence be expected to open for inspection the individual [baked goods] thus prepared by another.” Davis v. Williams, 58 Ga. App. 274 (2), supra.

2. Nevertheless, relying on Nelson v. C. M. City, Inc., 218 Ga. App. 850, 852 (2) (463 SE2d 902), rev’d in part on other grounds, 267 Ga. 390 (478 SE2d 769), plaintiff argues that Rich Products is an ostensible manufacturer and therefore strictly liable under OCGA § 51-1-11.1, because it had “input” into the manufacturing process or design specifications. We disagree.

First, under OCGA § 51-1-11.1 (a), “the term ‘product seller’ means a person who, in the course of a business conducted for the purpose leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer’s plan, intention, design, specifications, or formulation; or repairs, maintains; or otherwise is involved in placing a product in the stream of commerce. This definition does not include a manufacturer which, because of certain activities, may additionally be included within all or a portion of the definition of a product seller.” Here, there is no evidence that the recipe or formula for these bagels was based on Rich Products’ ovra specifications, as opposed to those of the actual producer or manufacturer, Sir Bagel.

Decided May 4, 1998.

L. B. Kent, for appellant.

Jones, Cork & Miller, Wendell K. Howell, for appellee.

Second, OCGA § 51-1-11.1 (b) expressly provides that, “[f]or purposes of a product liability action based in whole or in part on the doctrine of strict liability in tort, a product seller is not a manufacturer as provided in Code Section 51-1-11 and is not liable as such.” “[T]his includes a seller who merely labels a product as its own prior to sale. Alltrade, [Inc. v. McDonald, 213 Ga. App. 758, 759 (445 SE2d 856)]; Ream Tool Co. v. Newton, 209 Ga. App. 226, 227 (3a) (433 SE2d 67) (1993).” Buford v. Toys R’ Us, 217 Ga. App. 565, 566 (1) (458 SE2d 373). Thus, after the enactment of Ga. L. 1987, p. 1152, § 1 (OCGA § 51-1-11.1), a so-called ostensible manufacturer, which merely affixes its label to a product and sells it under its own name, no longer is subject to strict liability in tort as is an actual manufacturer. Alltrade, Inc. v. McDonald, 213 Ga. App. 758, 760, supra. The trial court correctly directed the verdict in favor of defendant seller, Rich Products.

Judgment affirmed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


author: Johnson, Judge.

text:
    A98A0030.
    DAVITT v. THE STATE.
    (502 SE2d 300)
   Johnson, Judge.

David Davitt was found guilty of child molestation and aggravated child molestation for offenses committed against his friend’s five-year-old sister. He appeals from the convictions entered on the jury’s verdict.

1. Davitt claims the trial court erred in allowing the child’s mother to bolster the child’s credibility. When the prosecutor asked the mother whether her child was generally credible, the mother responded that the child “doesn’t go around lying,” but then volunteered examples of when the child had lied in the past. Davitt did not object to the state’s question, the mother’s response, or request any relief at trial. “[I]t is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. . . . [I]t is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997). Davitt has waived this enumeration.

2. Davitt contends the trial court expressed its opinion as to what had been proved by stating in the jury’s presence that the child victim was qualified to testify. See OCGA § 17-8-57. Before the victim testified, the trial court asked her if she knew the difference between telling the truth and lying. She responded affirmatively. After asking the victim a series of other questions, the court stated that “the witness is qualified to give her testimony.” Davitt did not object to the court’s inquiry or to the court’s statement that the victim was qualified to testify. “The question of whether OCGA § 17-8-57 has been violated is not reached unless an objection or motion for mistrial is made.” (Punctuation omitted.) Rowe v. State, 266 Ga. 136, 137 (2) (464 SE2d 811) (1996); Waldrip v. State, 267 Ga. 739, 751 (20) (482 SE2d 299) (1997). Davitt’s failure to voice any objection at trial amounts to a waiver.

3. Davitt claims the trial court erred in failing to determine whether jurors actually heard testimony taken during a JacksonDenno hearing held outside of their presence. At trial, defense counsel told the trial court that the bailiffs reported being able to hear the testimony from another room and that the jurors might also have heard the testimony. The trial court and counsel agreed that “something needs to be done about” the “paper thin” door. Trial counsel did not move for mistrial, suggest what needed to be done, or request that the court inquire into what, if anything, the jurors actually heard. Instead, he engaged in a colloquy with the trial judge and opposing counsel regarding construction of a new courthouse and then began discussing other matters.

If the trial court is not requested to take curative action, its failure to do so cannot be addressed on appeal as error. See generally Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989); Kennedy v. State, 207 Ga. App. 798, 799 (2) (b) (429 SE2d 167) (1993). An appellate court will not grant more relief than that actually prayed for at trial. Reddin v. State, 223 Ga. App. 148, 153 (6) (476 SE2d 882) (1996). Davitt’s failure to request any type of relief at trial precludes reversal based on the trial court’s failure to act. See Zellner v. State, 260 Ga. 749, 751 (3) (b) (399 SE2d 206) (1991); Newton v. State, 259 Ga. 853, 854 (5) (388 SE2d 698) (1990).

Moreover, the argument is without merit. Davitt is correct that there is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove that no harm occurred. See Anderson v. State, 203 Ga. App. 118, 122 (6) (416 SE2d 309) (1992). The burden of proving the absence of harm shifts to the state only after an irregularity is shown. See McIntyre v. State, 207 Ga. App. 129, 130 (3) (427 SE2d 99) (1993). Davitt has not shown on the record that the alleged irregularity occurred. While he has shown that the courtroom is not soundproof, he has not presented any evidence that any of the jurors actually heard the testimony. As Davitt has failed to show harm by the record, this enumeration presents no grounds for reversal. See McBrayer v. State, 259 Ga. 513, 514 (2) (383 SE2d 879) (1989).

4. Davitt asserts for the first time that he was denied effective assistance of counsel because trial counsel failed to: object to alleged bolstering by the victim’s mother; object to the trial court’s statement in the jury’s presence that the child was qualified to testify; develop the record as to whether the jury overheard testimony from the Jackson-Denno hearing; made no opening statement; and filed no written requests to charge.

We disagree with the state that Davitt waived the ineffectiveness claim by not raising it earlier. The judgments of conviction were entered on April 10, 1997. Trial counsel filed a notice of appeal on April 16, 1997. No motion for new trial was ever filed. New appellate counsel notified this Court of his appointment in August 1997, though the record is silent as to the precise date he was appointed, and filed a motion for remand on the ineffective assistance of counsel issue in his first appearance. See generally Herndon v. State, 229 Ga. App. 457, 461 (12) (494 SE2d 262) (1997).

An attorney cannot reasonably be expected to assert that he was ineffective at trial. Under the circumstances presented here, we cannot say that Davitt had an adequate opportunity to raise the ineffectiveness claim before the appeal was filed. See generally Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Johnson v. State, 259 Ga. 428, 430 (3) (383 SE2d 115) (1989). An ineffectiveness claim may be raised for the first time in a direct appeal if the direct appeal marks the first appearance of new counsel. McGlohon v. State, 228 Ga. App. 726, 728 (3) (492 SE2d 715) (1997). The record does not show that Davitt’s new appellate counsel had an opportunity to raise the issue in the trial court pursuant to a motion for new trial; it shows that new counsel made his first appearance in the appeal. Accordingly, the case must be remanded to the trial court solely for consideration of the ineffective assistance of counsel issue. Id. at 729; Herndon, supra; Turner v. State, 210 Ga. App. 328, 330 (3) (436 SE2d 66) (1993). If the trial court finds that Davitt did not receive effective assistance of counsel, a new trial is required. If the trial court finds that Davitt did have effective assistance, he shall have 30 days in which to initiate an appeal of the trial court’s ruling on the issue.

Judgments affirmed and case remanded with direction.

Birdsong, P. J, and Smith, J., concur.

Decided May 4, 1998.

Lane & Crowe, Robert L. Crowe, for appellant.

Stephen D. Kelley, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.