text:
    A94A2259.
    A94A2260.
    DEPARTMENT OF CORRECTIONS v. SHAW. DEPARTMENT OF CORRECTIONS v. CHAMBERS.
    (456 SE2d 628)
   Ruffin, Judge.

Wayne Shaw and Bruce Chambers were terminated from their employment with the Georgia Department of Corrections (“department”) based on their alleged involvement in the use of excessive force against an inmate in the Scott Correctional Institution. The dismissals were appealed to the State Personnel Board (“board”) where, after a hearing, the dismissals were upheld by a hearing officer and the board. On appeal in the superior court, the dismissals were reversed. The court ordered the officers’ reinstatement and payment of back pay. The court also held that the board abused its discretion in dismissing Shaw and Chambers and thus failing to apply and follow its progressive discipline policy. We granted the department’s application for discretionary appeal to determine whether the superior court applied the proper standard of appellate review and whether the court substituted its own judgment for that of the board with respect to the weight of the evidence and the credibility of the witnesses.

“[Vjiewed in a light most favorable to the [department], the prevailing party before the board, and with every presumption in favor of the board’s decision indulged, [cit.]” Carod Bldg. Svcs. v. Williams, 182 Ga. App. 340, 341 (355 SE2d 723) (1987), the evidence reveals that Shaw was a lieutenant and shift supervisor and Chambers was an officer on duty, assisting other officers in moving inmates inside the facility, at the time of the incident in question. Shaw and Chambers were in a security office inside the facility when they heard an altercation outside the office door. An inmate had resisted Officer Carl Tyler’s order to place his hands on the wall for a pat-down search and had struck Tyler with his elbow. Shaw and Chambers rushed out of the office, and Chambers went to Tyler to assist him in subduing the inmate. Officer Kenneth Statham testified that he was also in the security office, heard the scuffle outside and rushed to see the commotion. When Statham arrived, the inmate was in a physical confrontation with the officers, but his head was pressed down and held to the floor by Tyler’s knee, placed at the inmate’s temple. Statham testified that he retrieved a pair of handcuffs from the floor, walked over to the officers and asked them to “knock it off.” After Officer Sammy Tindal managed to handcuff the inmate, Statham testified that Chambers and Tyler picked the inmate up and threw him against the wall with such force that his back and head bounced against the wall. Statham testified that the inmate appeared disoriented and was barely standing, weaving back and forth. Statham turned to Shaw, who witnessed the incident from the security office door, and suggested that the inmate be allowed to sit on the floor before he passed out. Shaw then assisted the inmate to the floor.

Shaw and Chambers provided written statements regarding the incident; however, neither statement made reference to the placement of Tyler’s knee at the inmate’s head, to the shoving of the inmate into the wall, to the inmate’s placement on the floor because of his disoriented state, or to Statham’s presence during the incident. Shaw was charged with failing to take action to stop the physical abuse of an inmate upon witnessing three subordinate officers using excessive force and making a false official statement in conjunction with the use of excessive force on an inmate. Chambers was charged with the use of excessive and unnecessary force of an abusive nature against an inmate and making a false official statement in conjunction with the use of excessive force.

1. “Under OCGA § 45-20-9 (m) (4) the superior court may reverse the decision of the board where the board’s decision is ‘clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.’ OCGA § 45-20-9 (m) states in part: ‘The court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact.’ This statutory language has consistently been construed as confining the scope of review by the superior court to the ‘any evidence’ standard. Hall v. Ault, 240 Ga. 585 (242 SE2d 101). [Cit.]” Dept. of Human Resources v. Horne, 198 Ga. App. 341, 342 (401 SE2d 556) (1991).

In its reversal of the board, the superior court acknowledged the “any evidence” standard but failed to apply it. Instead, the court held that the department failed to carry its burden of proving misconduct and rule violations by Shaw and Chambers to support their terminations by a preponderance of the evidence. Furthermore, based on its review of the record in its entirety, the court held that the evidence supported a finding to the contrary, that Shaw and Chambers in fact complied with departmental rules and regulations. In doing so, the court cited inconsistencies in Statham’s testimony and discussed its preference for the testimony of the other officers present during the incident over Statham’s testimony, despite an express determination by the board, supported by specific citations to the record, that Stat-ham was the most credible witness.

Viewed in a light favorable to the department, the evidence supported the board’s decision. Carod, supra; Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631 (331 SE2d 23) (1985). “ ‘Neither the superior court nor this court is authorized to reverse an award because in its opinion the prevailing party did not carry the burden of proving a fact necessary to sustain its position if such fact is nevertheless supported by some competent evidence.’ [Cit.]” Id. at 632. “ ‘ “The board is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award. (Cits.)” (Cit.)’ [Cit.]” Id. at 631-632. While the hearing officer and the board may choose to believe or disbelieve certain testimony, “ ‘[t]he superior court, when sitting as an appellate body,... is not authorized to substitute its judgment as to the weight and credibility of the witnesses. (Cit.)’ ” Gasses v. Professional Plumbing Co., 204 Ga. App. 69, 70-71 (418 SE2d 424) (1992).

“ ‘The superior court erred in setting aside [the board’s terminations of Shaw and Chambers] supported by some evidence. (Cit.)’ [Cit.] The superior court should have affirmed [the decisions]. [Cits.]” Cobb General, supra at 632; Horne, supra.

2. The department contends the superior court also erred in requiring that the board apply progressive discipline and impose a less severe penalty. The court reversed the dismissals of Shaw and Chambers and held that the circumstances surrounding the subject incident did not warrant imposition of the most severe penalty of dismissal. The court further held that the board abused its discretion and was arbitrary and capricious in failing to apply and follow its progressive discipline policy. See Rule 478-1.15 of the Rules of the State Personnel Board.

“OCGA § 45-20-9 (h) provides for judicial review of a decision of the State Personnel Board. OCGA § 45-20-9 (m) contains the standard of review to be applied, and lists the limited grounds for reversal, the last of which is at issue here: ‘(T)he court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact. The court may . . . reverse the decision or order of the board if substantial rights of the petitioner have been prejudiced because the board’s . . . orders are: ... (5) Arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.’ ” Dept. of Transp. v. Nobles, 187 Ga. App. 244, 245 (370 SE2d 11) (1988). The foregoing provisions give the superior court the authority to reverse the board’s decision on the ground that the board abused its discretion by departing from its progressive discipline policy. See Ga. Dept. of Labor v. Sims, 164 Ga. App. 856 (2) (298 SE2d 562) (1982).

The trial court based its reversal, in part, on the circumstances surrounding the subject incident but also compared the punishment imposed by the same warden on another corrections officer charged with using excessive force within weeks of the incident in the instant case. That officer was not discharged but was given a six-month reduction in pay. However, explaining the basis for his decision to dismiss Shaw and Chambers, the warden testified that the conduct in the instant case demanded more severe punishment because a supervisor was involved; Officer Tyler instigated the incident; excessive force was used while the inmate was handcuffed; a complete report of the incident was not given; there were conflicting statements; and the inmate sustained injuries. The warden also testified that the dismissals were necessary to demonstrate that abuse of prisoners would not go unpunished.

Decided March 14, 1995

Reconsideration denied March 29, 1995

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney General, for appellant.

Walbert & Mathis, Charles A. Mathis, Jr., Patrick R. Matarrese, for appellees.

The foregoing demonstrates the dismissals were not imposed arbitrarily and capriciously. Accordingly, the trial court erred in reversing the dismissals as there was no abuse of discretion in the board’s failure to impose less severe punishment.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A94A2290, A94A2291.
    PRIMERICA FINANCIAL SERVICES, INC. et al. v. WISE et al.; and vice versa.
    (456 SE2d 631)
   Ruffin, Judge.

Edward H. Wise and other plaintiffs (collectively referred to as “Wise”) brought this action against Primerica Financial Services, Inc. and other entities (collectively referred to as “Primerica”) asserting claims of conversion, breach of contract, unjust enrichment and several RICO violations. The claims allegedly arose out of a series of complex independent contractor agreements between the parties, under which Wise sold term life insurance policies for Primerica on a commission basis. When problems arose concerning payment of those commissions, Wise filed this action.

Section 14 of one of the agreements contained an arbitration clause which forms the basis of these appeals. After Wise filed suit, Primerica moved the trial court to compel arbitration in accordance with the arbitration clause. While the trial court granted the motion, it struck two portions of the arbitration clause in accordance with a severability clause in the agreement. Both parties filed appeals from this order.

1. At the outset we note that the trial court found, and we agree, that the intentions of the parties as derived from the agreement are that the arbitration clause is governed by the Federal Arbitration Act, 9 USC § 1 (“FAA”). “Where the transactions out of which the claim for arbitration arose involve ‘commerce’ within the meaning of 9 USC § 1 of the Federal Arbitration Act, state law and policy must yield to federal law. [Cit.] ‘Commerce,’ within the meaning of the Arbitration Act, means interstate commerce, and the determination of whether a contract evidences transactions in interstate commerce is a question on which federal rules of contract construction and interpretation govern. [Cit.]” ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 224 (1) (338 SE2d 733) (1985).

Section 14 D of the agreement provides that “[t]he parties acknowledge and agree that they are engaged in, and that this Agreement evidences transactions involving, interstate commerce. . . .” Furthermore, notwithstanding a choice of laws provision stating Georgia law shall govern the agreement, the arbitration clause in this case makes two express references to the FAA, one of which provides that “Parties . . . shall have the right to enforce all provisions of this Section 14 . . . under the United States Arbitration Code, 9 U.S.C. § 1. . . .” It is clear from the foregoing provisions that the intentions of the parties were that arbitration would be governed by the FAA. “Thus, as with any other contract, the parties’ intentions control. . . .” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U. S. 614, 626 (2) (105 SC 3346, 87 LE2d 444) (1985).

Case No. A94A2290

2. Turning to the specific enumerations of error, Primerica asserts that the trial court erred in striking a section of the arbitration clause concerning the eligibility of arbitrators. The section generally provides that in order to assure the neutrality and impartiality of the arbitrators, and to preserve the confidentiality of proprietary information, the arbitrators shall not have any past or present affiliation with the insurance industry. The trial court found this provision was “arbitrary, capricious, unfair and overreaching and designed ... to oppress, coerce and intimidate Plaintiffs from seeking to bring claims against the Defendants and create [d] an inherently unfair, unjust and inequitable procedure designed to favor only the Defendants.”

Section 5 of the FAA provides in pertinent part that “[i]f in the agreement provision be made for a method of naming or appointing an arbitrator . . . , such method shall be followed. ...” 9 USC § 5. While Primerica argues Section 5 is dispositive of the issue, the Court in Mitsubishi, supra, stated that in reviewing arbitration agreements, “courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds for the revocation of any contract.” (Citations and punctuation omitted.) Id. at 627. Such a showing could include, among other things, that “ ‘enforcement would be unreasonable and unjust. . . .’” Id. at 632.

In the instant case, the trial judge made such a finding. That finding was supported by the affidavit of Edward Wise where he stated he had “no meaningful opportunity to negotiate the terms and conditions of [the] contract.” Moreover, considering the complex nature of the underlying substantive issues, we believe that by disqualifying anyone with any expertise in the field, unsophisticated individual plaintiffs are placed at an unreasonable disadvantage to the insurance companies who drafted the agreements. Under these circumstances we cannot conclude that the trial court’s ruling on this issue was clearly erroneous. See Worthington v. United States, 21 F3d 399 (11th Cir. 1994). Accordingly, we find no error.

3. Primerica also asserts that the trial court erred in striking a section in the arbitration clause providing that an arbitration award would be subject to judicial review beyond that provided for in the FAA. The section provides in pertinent part that in addition to the grounds set forth in the FAA for vacating, modifying or correcting an award, a reviewing court “may also vacate, modify or correct the award if the conclusions of law are contrary to law, or if the findings of fact are not supported by the facts (as determined by whether there was any pertinent and material evidence to support the findings).” (Emphasis supplied.) The trial court found that the provision “violates the spirit and letter of the F.A.A. 9 U.S.C. § 10 and § 11 depriving such arbitration procedure of finality and putting such arbitration on a judicial review of ‘any evidence’ to support an appeal from an administrative agency.”

Under 9 USC § 10, a reviewing court may vacate the award where it was procured by corruption, fraud, or undue means; where the arbitrators were partial or corrupt or guilty of other misconduct which prejudiced the rights of a party; or where the arbitrators exceeded their powers. Under 9 USC § 11, a reviewing court can modify or correct an award where there was a material mistake in a calculation or description in the award; where the arbitrators awarded on a matter not submitted to them; or where the award is imperfect in matter of form not affecting the merits of the controversy.

In In the Matter of the Arbitration between Fils et Cables d’ Acier de Lens & Midland Metals Corp., 584 FSupp. 240 (S.D.N.Y. 1984), the court interpreted a similar judicial review provision in light of the FAA. There the court found that “since resort to arbitration is by itself a product of contract, there appears no reason, absent a jurisdictional or public policy barrier, why the parties cannot agree to alter the standard roles [of the reviewing court].” Id. at 244. In this case Wise argues that such a provision expands the jurisdiction of the reviewing court beyond that provided under the FAA. However, as the court in Midland pointed out, the review provisions in the FAA do not confer jurisdiction. Id. Before a party can seek review before a court, subject matter jurisdiction must exist independent of the FAA. Id. Since the review provisions in the FAA do not independently confer jurisdiction, we do not find the review provisions in the arbitration clause, in which the parties agreed to alter the role of the reviewing court, violative of the FAA. See id.

Furthermore, although the provision at hand does expand the court’s review of an arbitration award, thereby removing some of the efficiency incentive for resorting to arbitration, we do not agree with Wise that it creates a process akin to permanently non-binding arbitration. The judicial review provided for in the agreement creates an “any evidence” standard similar to that required to support an appeal from an administrative agency in this state. Under this standard, a court would not be permitted to substitute its judgment for that of the arbitrators as to the weight of the evidence on questions of fact and would be required to confirm the award if there was any evidence to support it. See Sawyer v. Reheis, 213 Ga. App. 727 (1) (445 SE2d 837) (1994). Under these circumstances, we do not find the provision violative of the FAA or public policy and therefore agree with Primerica that the trial court erred in striking the provision from the agreement.

4. In Primerica’s final enumeration of error, it asserts the trial court erred by including in its order language that was critical of the parties’ arbitration agreement, unsupported by the evidence, unnecessary to the court’s decision, and which might prejudice defendants in subsequent proceedings. The language about which Primerica complains generally includes statements that portions of the agreement were unreasonable and not made in good faith. As pointed out in Division 2, under Mitsubishi, supra, the trial court was permitted to consider whether the challenged provisions resulted from the kind of fraud or overwhelming economic power that would provide grounds for the revocation of any contract and that such showing could include, among other things, that enforcement would be unreasonable and unjust. Contrary to Primerica’s argument, this language does evidence the trial court’s findings of fact, which were necessary to the order under Mitsubishi, and as we ruled in Division 2, we cannot conclude that the findings were clearly erroneous. See Worthington, 21 F3d at 400. Accordingly, we find no error.

Case No. A94A2291

5. Wise contends the trial court erred in “blue penciling” the otherwise unenforceable arbitration clause in an attempt to make it enforceable. Wise argues that the reasons for prohibiting blue-penciling of restrictive covenants in employment contracts apply with equal or greater force in the case of the arbitration agreements in the instant case. Relying on Richard P. Rita Personnel Svcs. Intl. v. Kot, 229 Ga. 314 (191 SE2d 79) (1972), Wise contends that if severance of these two provisions is allowed in the instant case, then employers will be able to fashion truly ominous arbitration agreements with confidence that they will not be struck in their entirety, but simply pared down and enforced by the courts. See id. at 317. Wise asserts that the net éffect of such a policy is that employers will intentionally draft unduly burdensome and complex arbitration agreements to deter employees who do not understand the legal system from pursuing claims against their employers. Accordingly, Wise urges us to either strike the arbitration clause in its entirety, or not at all.

“The ‘liberal federal policy favoring arbitration agreements,’ [cit.] manifested by [9 USC § 2] and the Act as a whole, is at bottom a policy guaranteeing the enforcement of private contractual arrangements: the Act simply ‘creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate.’ [Cit.] As this Court recently observed, ‘(t)he preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered,’ a concern which ‘requires that we rigorously enforce agreements to arbitrate.’ [Cit.] Accordingly, the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute.” (Indentation omitted; emphasis supplied.) Mitsubishi, supra at 625-626.

While we do not deny the legitimacy of Wise’s concerns regarding severance of arbitration agreements in general, those concerns cannot be analyzed in a vacuum. Under Mitsubishi, supra, the agreement, in its entirety, must be reviewed in light of the liberal federal policy favoring arbitration agreements and the parties’ intentions in entering into those agreements. Reviewing the trial court’s severance of the agreement in this light, we find the parties agreed to arbitrate. Furthermore, as the trial court duly noted, the parties in this case entered into the subject agreements and all sought to take advantage of them through performance. The agreements contained not only the disputed arbitration clause but also a severability clause. Under the latter clause, the parties agreed that “[i]f any . . . provision of the agreement shall be found to be void or unenforceable by any court or arbitration panel of competent jurisdiction, such finding shall have no effect upon any other . . . provision of the Agreement. ...” Accordingly, we do not believe the trial court in this case erred in severing a provision it found to be unfair and overreaching, while compelling arbitration under the remaining provisions of the agreement.

6. Finally, Wise contends the trial court erred in enforcing the arbitration clause because it was expressly made unenforceable by the Georgia Arbitration Act, OCGA § 9-9-1 (“GAA”). OCGA § 9-9-2 (c) (9) provides that “[a]ny contract relating to terms and conditions of employment” is unenforceable under the GAA “unless the clause agreeing to arbitrate is initialed by all signatories at the time of the execution of the agreement.” Wise argues that since it is undisputed that the arbitration clauses were not initialed, the agreement is unenforceable under the GAA. Because we believe the GAA has no application in the instant case, we disagree.

In Southland Corp. v. Keating, 465 U. S. 1 (104 SC 852, 79 LE2d 1) (1984), the Court found “nothing in the Act indicating that the broad principle of enforceability is subject to any additional limitations under state law.” Id. at 11. Similarly, in DiMambro-Northend Assoc. v. Blanck-Alvarez, 251 Ga. 704 (309 SE2d 364) (1983), our own Supreme Court recognized “ ‘a Congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.’ ” Id. at 707 (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U. S. 1 (103 SC 927, 74 LE2d 765) (1983). Accordingly, we must conclude that “ ‘the state law and policy with respect [to the signature requirement] must yield to the paramount federal law. [Cit.]’ [Cit.]” CCC Builders v. City Council of Augusta, 237 Ga. 589, 592 (229 SE2d 349) (1976). See also Collins Radio Co. v. Ex-Cell-O Corp., 467 F2d 995 (8th Cir. 1972) (court disregarded a similar attorney signature requirement under the Texas arbitration code where arbitration was governed by FAA).

Judgment affirmed in part, reversed in part.

Birdsong, P. J., and Blackburn, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Wise contends the U. S. Supreme Court’s decision in Volt Info. Sciences v. Bd. of Trustees of the Leland Stanford Junior Univ., 489 U. S. 468 (109 SC 1248, 103 LE2d 488) (1989), requires application of the GAA in addition to the FAA. In Volt, the Court held that where the contract involved interstate commerce and the parties agreed that arbitration would be governed by state law, the FAA did not preempt application of that state’s arbitration laws. Id. at 472. Unlike Volt, the arbitration clause in this case contained an express provision that it is to be governed by the FAA. Accordingly, we concluded in Division 1 of our decision that notwithstanding a Georgia choice of laws provision, the parties clearly intended that the arbitration clause would be governed by the FAA. Since we did not conclude that the parties intended the arbitration clause would be governed by both the FAA and the GAA, we did not reach the preemption issue addressed in Volt.

Decided March 14, 1995

Reconsideration denied March 29, 1995

Chilivis & Grindler, Nickolas P. Chilivis, Anthony L. Cochran, John K. Larkins, Jr., J. D. Dalbey, King & Spalding, Frank C. Jones, Nolan C. Leake, Reginald R. Smith, Michael E. Ross, for appellants.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellees.

Motion for reconsideration denied.


author: Johnson, Judge.

text:
    A94A2374.
    NATIONAL EMERGENCY SERVICES, INC. v. WETHERBY.
    (456 SE2d 639)
   Johnson, Judge.

The issue in this case involves the construction of a provision of a contract between Dr. David Wetherby and National Emergency Services, Inc. (National), a staffing, placement business which supplies personnel to hospitals and other providers of emergency services.

It is undisputed that Wetherby entered into a contract with National to provide his services in health care facilities with which National contracted. National had such a contract with Memorial Hospital and Manor in Bainbridge, Georgia, the facility at which Wetherby was placed. Wetherby’s employment contract with National contained a restrictive covenant barring him from working at Memorial for 24 months in the event the contract between National and that facility ended.

Wetherby continued to work at Memorial after it terminated its contract with National. National brought suit against Wetherby seeking to enforce the “liquidated damages” provision of the contract, which states: “Therefore, in addition to any and all remedies available to Corporation under any and all other agreements, and under this Agreement, physician agrees that he will immediately pay the sum of $25,000.00 to Corporation as and for liquidated damages if within twenty-four months following the termination of the Corporation’s contract with said medical institution, physician should provide medical services for said institution if the physician had previously provided medical services for said institution pursuant to a contract with the Corporation.”

Wetherby filed a motion for summary judgment asserting the restrictive covenant is unenforceable because it is overbroad in scope both as to time and geography and also because the liquidated damages provision is in fact a penalty. The trial court, without making specific findings of fact or conclusions of law, granted summary judgment in favor of Wether by.

This court recently decided Dominy v. Nat. Emergency Svcs., 215 Ga. App. 537 (451 SE2d 472) (1994), a case also involving a doctor’s contract with National, which appears to raise identical issues. We agree with the conclusion reached in Division 2 of that opinion which holds that a restrictive covenant, identical in all respects to the one in this case except for the amount of damages contemplated in the event of a default, is “reasonably limited in duration and territorial effect.” Id.

We next analyze whether the remedy contemplated by the contract for a breach of that covenant is enforceable. Legal scholars examining this issue have suggested that, except in clear cases involving contracts of adhesion, liquidated damage provisions should not be subjected to stringent scrutiny as they provide viable economic alternatives to performance of contract and further represent a longstanding principle of freedom to contract. Georgia courts, however, have adopted, and long adhered to, a tripartite test for determining whether a provision constitutes liquidated damages or an unenforceable penalty. The test has been applied in numerous cases. See, e.g., AFLAC, Inc. v. Williams, 264 Ga. 351, 354 (2) (444 SE2d 314) (1994); Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976); Roswell Properties v. Salle, 208 Ga. App. 202, 204 (3) (c) (430 SE2d 404) (1993); Peterson v. P. C. Towers, L. P., 206 Ga. App. 591, 592 (2) (426 SE2d 243) (1992); Daniels v. Johnson, 191 Ga. App. 70 (1) (381 SE2d 87) (1989). “ ‘First, the injury caused by the breach must be difficult or impossible of accurate estimation.’ ” Southeastern, supra at 230. The affidavit of Mitchell Billing submitted on behalf of National describes the process of reviewing a doctor’s application for employment. This process includes verifying license and certification information as well as conducting a background investigation and checking references. He asserts it would be impossible for the accounting department to maintain a system which would track the amount of time expended for each applicant. This assertion lacks a certain amount of credibility to those involved in the legal profession who are obliged to track the amount of time expended on behalf of one client or another on a regular basis. Nonetheless we are willing to concede that keeping such records may be difficult.

The second prong of the tripartite test requires that the parties must intend to provide for damages rather than a penalty. Southeastern, supra. Wetherby’s uncontradicted affidavit states he and National never discussed any figure which would represent National’s damages in the event of a breach of the contract. The language of the contract itself, however, uses the phrase “liquidated damages” to describe the $25,000. We must first look to the language of the contract to determine whether the parties intended the provision in question to be a penalty or a legally cognizable liquidated damages clause. Here, we are unable to say as a matter of law that National cannot satisfy the second prong of the test. Nevertheless, for the reasons set out below, Wether by is still entitled to summary judgment.

The sum stipulated as liquidated damages must be a reasonable pre-estimate of the probable loss. Southeastern, supra. Billing’s affidavit describes the costs involved in the recruiting process, i.e., the company’s costs involved in visiting and conducting interviews at residency programs, mass mailings, office rent and advertising, implying that some percentage of those costs can be attributed to the recruitment of each doctor. Without suggesting any precise dollar figure, Billing speculates that “a very substantial portion of the $10,000 (sic) which is set forth in the contract between plaintiff and defendant would have been spent in the verification process.” He also asserts that National cannot predict the average cost of losing a doctor from its staff because they do not know how long the doctor would have stayed under contract with them, and consequently they cannot predict the amount of lost profits that would result. Lost profits are not generally recoverable as contract damages because of their speculative nature. The conclusory testimony in Billing’s affidavit regarding the amount spent in the verification process is also speculative.

The issue of whether a provision constitutes liquidated damages rather than a penalty is an issue of law, Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989). For all of the reasons discussed above, we fail to see a connection properly established in the record in this case between the $25,000 sum and a competent estimation of probable loss. Although the result reached on this issue is contrary to that reached in Dominy, supra, our review of the evidence in this case leads us to the conclusion that the $25,000 provision in Wetherby’s contract (two-and-one-half times larger than that in Dominy) must be construed as a penalty rather than liquidated damages and is unenforceable. The trial court’s grant of summary judgment in favor of Wether by with respect to that provision was proper.

Judgment affirmed.

Andrews, J., concurs. Beasley, C. J., concurs in judgment only.

Decided March 15, 1995

Reconsideration denied March 29, 1995

Brown, Katz, Flatau & Hasty, S. Phillip Brown, for appellant.

Perry, Walters & Lippitt, S. B. Lippitt, Jr., for appellee.

       A third case also involving a doctor and National is referred to in the record of this case. An appeal was filed in that case, Nat. Emergency Svcs. v. Sweat, Case No. A93A1668, but it was withdrawn prior to opinion.

       Goetz & Scott, Liquidated Damages, Penalties, and the Just Compensation Principle: Some Notes on an Enforcement Code and a Theory of Efficient Breach, 77 Columbia L. Rev. 554 (1977); Comment, Refocusing Liquidated Damages Law for Real Estate Contracts: Returning to the Historical Roots of the Penalty Doctrine, 39 Emory L. J. 267 (1990).


author: Beasley, Chief Judge.

text:
    A94A2375.
    STEWART et al. v. THE STATE.
    (456 SE2d 693)
   Beasley, Chief Judge.

We granted interlocutory review of the denial of Stewart’s and Jackson’s motions to suppress evidence of the fruits of a “no-knock” warrant search of Jackson’s apartment in Albany, in which her boyfriend Stewart allegedly also resided. Seized in the search were substantial amounts of cocaine, marijuana, cash, firearms, ammunition and some electronics without identifying serial numbers. Stewart and Jackson were charged with trafficking in cocaine, possession with intent to distribute marijuana, and violations with respect to the firearms and altered electronics. They challenge the search warrant on two grounds: 1) it was not supported by probable cause because it was premised solely on the unverified and uncorroborated statements of an anonymous tipster; 2) the officer applying for the warrant did not set forth any facts in her affidavit from which the issuing judge could reasonably determine the reliability or veracity of the information.

The warrant was issued on March 8, 1994, upon presentation by Officer Reitzell of her affidavit and a criminal history sheet for Stewart. The affidavit stated in pertinent part: “On Tuesday, 3-8-94, Deputy Charles Knowles received a call from a concerned citizen. This citizen asked Deputy Knowles if he was familiar with Donald Stewart. Knowles replied yes. Citizen then asked if Knowles knew where his girlfriend lived. Knowles replied yes. The citizen then stated that Donald had gotten two kilos of cocaine in last night. Citizen states that Donald is keeping the cocaine in the freezer under the hamburger meat. Citizen states that his girlfriend, alias ‘Gwinnie’ always keeps her freezer real neat and everything in it stacked in order. The cocaine is under the stacks of hamburger meat. Knowles then asked for the address of the girlfriend and the citizen stated the address is 726 Apt D Crawford Drive. Citizen states also that Donald Stewart is currently at the address and his girlfriend’s kids are at school and wanted to notify the drug unit so something would be done before the kids get out of school.

“Independent investigation into Donald Stewart has shown Stewart was arrested by the Albany Dougherty Drug Unit on 10-13-80 for possession of marijuana less than one ounce, rape and kidnapping. On 04-29-81 for possession of marijuana less than one ounce. On 11-22-83 for possession of marijuana with intent to distribute. On 03-2-89 for possession of cocaine. On 09-12-89 for probation violation. On 09-20-89 for sale of cocaine. On 07-24-91 for sale of cocaine and on 04-29-93 for battery and obstruction of police officer.

“Investigation also shows that the address of 726 Apt D Crawford Drive has a utility listing to Gwendolyn Green.

“Due to Donald Stewart’s past history of drug violations and the details of the location and the drugs by the concerned citizen, it is believed that the information obtained from the concerned citizen is true and correct.

“Due to Donald Stewart’s past history of drug violations and violent crimes, such as rape, kidnapping, and obstruction of officers, it is believed that Donald Stewart will attempt to hinder officers in the entry to the apartment and will attempt to destroy any contraband in the residence.”

The criminal record attached to the affidavit showed numerous arrests of the 33-year-old male, beginning in October 1980. They included, in addition to those listed in the affidavit, an arrest in May 1993, ten months earlier, for possession of cocaine with intent to distribute. The last arrest, December 14, 1993, three months before the search warrant at issue, was on an arrest warrant of December 10 for probation violation. The history sheet included eight prior drug offenses and thirty-three other offenses (exclusive of probation violations). Although many of these offenses were traffic matters, there were also two charges of battery, two charges of aggravated assault, three charges of theft by receiving stolen property, seven charges of disorderly conduct, plus charges of obstruction of police officers, rape and kidnapping.

OCGA § 17-5-30 (a) (2) declares that a search and seizure is illegal if, for one thing, “there was not probable cause for the issuance of the warrant.” This is “the legislature’s unequivocal expression of its desire that evidence seized by means of a warrant that is not supported by probable cause be suppressed.” Gary v. State, 262 Ga. 573, 575 (422 SE2d 426) (1992).

What this means is well-known but sometimes difficult to apply because “it is, at heart, a rule of subjectivity.” State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984). The test is described thusly: “ ‘In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by (the Georgia Supreme) (C)ourt in State v. Stephens, [supra], with the admonition that prudence counsels that Gates be considered as the outer limit of probable cause. Under that analysis, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In addition, (the Georgia Supreme) (C)ourt has cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability.’ (Citations, punctuation and emphasis omitted.) [Cit.]” (Emphasis supplied.) Eaton v. State, 210 Ga. App. 273 (1) (435 SE2d 756) (1993). The magistrate’s decision is to be based on “ ‘ “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” ’ ” Curry v. State, 255 Ga. 215, 217 (1) (336 SE2d 762) (1985). Munson v. State, 211 Ga. App. 80 (438 SE2d 123) (1993), illustrates this.

We first address the question of the source of the information. The person was mischaracterized as a “concerned citizen.” Neither the affiant nor the officer who spoke with the caller knew anything about this person other than that it was a female who was, in Officer Knowles’ words, “a well-spoken black lady,” a fact not conveyed to the magistrate. From the tenor of the call, it could be inferred that her motive was to have Stewart apprehended. The State conceded in the hearing and here, correctly, that she was merely an anonymous tipster.

Veracity and basis of knowledge of the informant are major considerations, Langford v. State, 213 Ga. App. 232, 233 (1) (444 SE2d 153) (1994), and as to these matters the affidavit is silent, except to the extent the veracity of the information reflects on the source. The officer explained at the motion hearing that the caller hung up before they could get additional information. Who the caller was, how she obtained the information, and what she personally knew, all remained a mystery.

However, we have specifically stated that “although information regarding the reliability of the informant is highly relevant to the totality of the circumstances determination, the absence ofj significant information regarding reliability is not necessarily fatal to an affidavit.” Munson v. State, supra at 82.

“‘[E]ven if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable enough to provide probable cause if portions of the tip are sufficiently corroborated. [Cit.]’ ” Langford, supra at 234. State v. Stephens, supra at 183, discusses the value of independent corroboration. It “will generally need to be a prediction of future behavior, as in Gates, or something similar — that is, inside information not available to the general public.” State v. Bryant, 210 Ga. App. 319, 321 (436 SE2d 57) (1993).

Decided March 17, 1995

Reconsideration denied March 29, 1995

Kenneth W. Musgroue, Lewis R. Lamb, for appellants.

Officers knew that the location of Stewart’s girl friend’s apartment was as given and verified the name under which utilities were listed for it, i.e., Gwendolyn Green, whose name matched the nickname “Gwinnie.” The affiant also drove by the residence to assure that someone was there before she obtained the warrant, corroborating the caller’s information to this degree. However, this drive-by was not included in the affidavit. Nevertheless, the graphically detailed nature of the information, the caller’s express naming of “Donald Stewart,” and the knowledge of Stewart and of the location as the residence of Stewart’s girl friend, all factored into the veracity of the information. Stewart’s long criminal history, including repeated drug offenses, was corroborative of the information that he currently possessed cocaine. It is enough with all the other circumstances to lift the information from what we must categorize as “rumor.” Eaton, supra at 275.

The lack of further verification of the information is explained by the patent desire to act quickly, if in fact children were coming home from school, as the affidavit was signed at 1:26 p.m. The officers largely corroborated, by investigation and information already had, the portions of the tip which could be corroborated.

The information presented in the affidavit and the incorporated criminal history sheet provide a sufficient basis for concluding that, based on practical common sense, there was a “fair probability” in the words of Illinois v. Gates, supra at 238-239, that contraband would be found in the place for which, or on the persons for whom, the warrant was issued. See Gary v. State, supra at 577.

Consequently, the warrant issued on the strength of it was valid, and the trial court did not err in denying Stewart’s and Jackson’s motions to suppress the evidence. Cf. State v. Goodrich, 209 Ga. App. 280 (433 SE2d 390) (1993); McRae v. State, 204 Ga. App. 234 (418 SE2d 796) (1992).

Judgments affirmed.

Andrews and Johnson, JJ., concur.

Britt R. Priddy, District Attorney, for appellee.

       It was later discovered that the officer who checked the utility record mistakenly identified Ms. Green as the occupant of apartment D, whereas she lived in apartment C; Stewart’s girl friend Sandra Jackson, the co-defendant, lived in apartment D, which the officer who received the call knew to be that of Stewart’s girl friend although he did not know her name.


text:
    A94A2576.
    HAMMOND v. BANK OF NEWNAN.
    (456 SE2d 678)
   Ruffin, Judge.

Harold Hammond sued the Bank of Newnan (“the Bank”) for money damages, alleging that the Bank failed to honor his option to purchase 5,000 shares of Bank stock at $20 per share which was extended to him when he became its president in 1986. The Bank moved for summary judgment and the trial court granted the motion.

The evidence, viewed in a light most favorable to Hammond, shows that in 1986 Hammond signed an employment agreement with the Bank which contained a “Contemplated Benefits” section. That section stated that “[a]fter the [Bank] is authorized to do business, the new employment agreement with Hammond shall . . . include provisions for stock options. . . .” Hammond requested the option of purchasing 5,000 shares of stock at $20 per share as part of the agreement. An August 25, 1986 letter regarding the employment contract from a member of the Bank’s Board of Directors states “I do . . . feel [Hammond’s] request [for the stock option] is reasonable, and that the Board should . . . agree that we will establish such a plan once the bank is in operation, and that the plan will . . . provide that Harold will be extended these options, to-wit: to purchase 5,000 shares of stock at $20 per share. ...”

On August 28, 1992, Hammond wrote a letter to the Board stating that he wished to exercise his option to purchase 5,000 shares of the Bank’s stock at $20 per share. On December 22, 1992, the Board wrote Hammond as follows: “Confirming the action by the Board of Directors at the December 18, 1992 meeting of the Board, you are extended an option to purchase up to 5,000 shares of the stock ... at a strike price of TWENTY ($20.00) DOLLARS per share.” The letter further stated that the option was subject to the condition that it not violate any state or federal laws.

The Bank moved for summary judgment, contending that a binding stock option never existed and that a condition precedent to Hammond’s exercise of the option, the approval by the Bank’s shareholders and the State Department of Banking, had never been fulfilled; therefore, Hammond had no legally enforceable right to the option. It is undisputed that the option was never submitted to the shareholders or the Department of Banking.

The trial court granted the Bank’s motion, citing OCGA § 7-1-488 (e) which provides that “a bank . . . may adopt or carry out a plan, approved by the [State Department of Banking], . . . and the affirmative vote of a majority of the [shareholders], ... for the granting of options for shares, to some ... of the officers. . . .” The court held that because the proposed option had never been submitted to the shareholders or the Department of Banking, that “Plaintiffs claim would fail even if the Court were to find that such an option had indeed been granted by Defendant.”

1. Hammond contends that the trial court erred in granting the Bank’s motion for summary judgment. We agree and reverse. At the outset we note that to the extent the trial court’s order can be construed as a finding that no issue of fact exists regarding whether the Bank ever granted Hammond a stock option, it is in error. “The cardinal rule of the summary judgment procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. . . .” (Citations and punctuation omitted.) White House v. Winkler, 202 Ga. App. 603, 606 (415 SE2d 185) (1992). In addition to the documentary evidence outlined above, the record contains other evidence that the Bank offered Hammond the stock option in 1986, including a letter from a member of the Board to Hammond stating that the member had asked the accountant to “put the option in effect to give expression to the desires of the parties at the time the bank was in organization. . . .” Thus, Hammond presented sufficient evidence to create a jury issue as to whether the Bank had agreed to extend him the stock option.

Hammond contends that the trial court erred in granting summary judgment based on the fact that the prerequisites of OCGA § 7-1-488 (e) had not been met when that failure was attributable to the Bank. Hammond contends that because the Bank failed to take the steps necessary to effectuate the statute’s requirements after promising to do so, it cannot now rely on the failure of a condition precedent that it caused. See, e.g., Feagin v. Feagin, 174 Ga. App. 474 (330 SE2d 410) (1985) (a party cannot avoid the obligations of a contract by frustrating the performance of a condition precedent). See also 17A CJS, Contracts, § 468 (b). (One who hinders fulfillment of condition precedent cannot rely on condition to defeat liability.) In support of this argument, Hammond averred that in “December of 1992, at the meeting of the board . . . Hamilton Arnall (a board member) told me that my stock option . . . would be submitted to the shareholders for approval in . . . the annual meeting in April of 1993. ”

The Bank contests that Hammond was ever told the stock option would be submitted to the shareholders and also denies that it refused to make the submission to the shareholders or the Department of Banking. Further, the Bank argues that Hammond in essence waived any right to hold it responsible for the failure to obtain the requisite approvals because it was Hammond, not the Bank, who rejected submission of the option to the shareholders. In support of this argument, the Bank points to the deposition testimony of one of its board members that in 1987, upon learning of the cost and necessity of both State Banking Department and shareholder approval before the option could be granted, Hammond told them to “[f] or get it.”

Decided March 17, 1995

Reconsideration denied March 29, 1995.

Slaughter & Virgin, Frank W. Virgin, for appellant.

Tisinger, Tisinger, Vance & Greer, J. Thomas Vance, C. David Mecklin, Jr., for appellee.

The Bank concedes in its briefs that the evidence concerning the parties’ treatment of the alleged stock option between 1986 and 1992 was conflicting and that the Bank’s contention that Hammond said to “forget it” is contested. However, the Bank contends that this is not relevant to our review on appeal. We disagree. “The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.” (Citations and punctuation omitted.) Winkler, supra. Moreover, “[although the issue of a waiver of a contract provision is not always a jury question, ‘it is a question for the trior of fact when the evidence in that regard is conflicting.’ [Cit.]” Kusuma v. Metametrix, 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989).

Because there was conflicting evidence as to the existence of the stock option, whether Hammond was promised that the option would be submitted to the shareholders, and whether it was Hammond or the Bank who prevented the performance of a condition precedent, several issues of fact remain for the jury and the trial court erred in granting the Bank’s motion for summary judgment.

2. Based on our holding in Division 1, we need not address Hammond’s remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


author: Pope, Presiding Judge.

text:
    A94A2580.
    SANDERSON v. THE STATE.
    (456 SE2d 667)
   Pope, Presiding Judge.

Defendant, a police officer, was charged by accusation in state court with two counts of simple battery, a misdemeanor. We granted this interlocutory appeal to determine whether defendant, as a police officer, was entitled to be indicted by a grand jury on the misdemeanor charges. The trial court answered this question in the negative and denied defendant’s plea in abatement. We agree and affirm.

Decided March 17, 1995

Reconsideration denied March 29, 1995

Donald C. English, for appellant.

OCGA § 45-11-4 provides that if a public official is indicted for misconduct in office, he is entitled to certain privileges not afforded other defendants: he must be notified of the charges the grand jury is considering; he must have the opportunity to be present for the presentation to the grand jury of evidence against him; and he must have the opportunity to make a sworn statement to the grand jury. However, a defendant in a misdemeanor case may be tried upon an accusation framed and signed by the prosecuting attorney rather than an indictment. OCGA § 17-7-71. And where criminal proceedings are brought in state court, the accused is not entitled to be indicted by a grand jury. OCGA § 15-7-46. The language of OCGA § 45-11-4 only expressly requires that the specified privileges be granted officials who are indicted; but because that provision was first enacted in 1833, long before the legislature enacted the Code sections allowing misdemeanors to be charged by a prosecutor’s accusation rather than a grand jury’s indictment, it is arguable that the legislature intended that these privileges be granted any official charged with any misconduct.

Nonetheless, we must reject this argument. When the legislature adopted OCGA § 17-7-70.1, allowing district attorneys to proceed by accusation rather than indictment in certain felony cases, it explicitly excepted charges against public officials, stating in subsection (e) that those officials would retain their rights under OCGA § 45-11-4. Yet when the legislature enacted OCGA §§ 17-7-71 and 15-7-46, allowing prosecutors to charge misdemeanors by accusation and to proceed in state court without a grand jury’s indictment, it did not make an exception for charges against public officials.

Statutes should be harmonized whenever possible. Weldon v. Bd. of Commrs. of Monroe County, 212 Ga. App. 885 (2) (443 SE2d 513) (1994). In this case, we harmonize the statutes by concluding that OCGA § 45-11-4 says that if a public official is indicted for alleged misconduct, he is entitled to certain rights; it does not say that a public official charged with misconduct must be indicted, or that he is entitled to those rights if he is not. Accordingly, the trial court properly concluded that a police officer may be charged with a misdemeanor by accusation in state court.

Judgment affirmed.

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

Paul L. Howard, Jr., Solicitor, Deborah Espy, Ingrid D. Hartman, Cynthia Strong-McCarthy, Assistant Solicitors, for appellee.

       Pursuant to OCGA § 17-7-52, peace officers are entitled to the rights granted public officials under OCGA § 45-11-4.


text:
    A94A2598.
    CITY OF COLLEGE PARK v. PICHON.
    (456 SE2d 686)
   Ruffin, Judge.

Paul Pichón sued the City of College Park (“the City”) for damages arising out of the City’s failure to maintain a drainage easement it had across Pichon’s property. The easement included a drainage ditch that formed a part of the City’s overall drainage system and frequently overflowed onto Pichon’s property. Pichon’s complaint alleged that the City’s failure to maintain the ditch resulted in a nuisance causing an unspecified amount of damages. The jury returned a verdict in favor of Pichón, awarding him $10,000 in compensatory damages plus $8,290 in costs of litigation and attorney fees. The City appeals from the verdict and the court’s judgment thereon.

1. The City contends that the trial court erred in reversing its peremptory strike of juror number three. After selecting a jury, Pichón, who is black, objected to the City’s peremptory strikes of three black panel members pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Although voir dire was not recorded, the record indicates that seven of the twenty-four citizens on the venire were black. The City used three of its six peremptory challenges to strike black veniremen, Pichón struck one black venireman and the resulting jury was comprised of nine white jurors and three black jurors. The City explained it struck two of the black veniremen because they both had open drainage ditches on their property over which the City had an easement. The City further explained that in both cases, the veniremen were able to reach an agreement where the City installed pipes and filled in the ditches. The City concluded that the two veniremen might harbor expectations that Pichón should have received the same treatment as they did from the City. With regard to the other venireman, juror number three, the City explained that his admitted acquaintance with one of Pichon’s potential key witnesses would affect his judgment.

The court permitted the first two strikes, but disallowed the strike as to juror number three. The court noted that the City failed to ask juror number three whether or not his acquaintance with the witness would bias him in any way. As a remedy for this improper strike, the court impaneled juror number three on the jury and allowed the City to strike another member. No further objections were made concerning the matter and the proceedings continued.

Despite the City’s argument that Pichón failed to make a prima facie showing of racial discrimination as to juror number three, “the record discloses that [the City] offered to provide a racially-neutral explanation for [its] peremptory challenges even before the trial court determined affirmatively on the record that a prima facie case had been made. Once the party exercising peremptory challenges has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [complaining party] has made a prima facie showing becomes moot.” (Citations and punctuation omitted.) Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443) (1994).

“Therefore, since the issue of whether [Pichón] established a prima facie case is moot, we address the issue of the sufficiency of [the City’s] explanations for the exercise of the . . . peremptory [challenge].” Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). The City was required to explain its striking of juror number three “by articulating a racially-neutral reason related to the particular case. [Cit.]” Id. The City explained that the juror’s admitted acquaintance with one of Pichon’s potential key witnesses would affect his judgment. The witness referred to, James Patterson, was the prior owner of Pichon’s property and was listed as one of his witnesses on the pre-trial order. This was a race-neutral reason, and because the City learned in discovery that the property experienced water damage before Pichón purchased it from Patterson, the reason was related to the case. While the trial court’s findings are entitled to great deference, see Asbury v. Ga. World Congress Center, 212 Ga. App. 628 (1) (442 SE2d 822) (1994), we find its ruling erroneous under the circumstances of this case.

However, “[a]n appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]” Tarleton v. Griffin Fed. Savings Bank, 202 Ga. App. 454, 455 (2b) (415 SE2d 4) (1992). “[W]e find no harm to [the City] in the court’s decision, since the record shows that [Patterson] never testified. That being so, any relationship between the juror and [Patterson] was irrelevant.” Pyburn v. State, 175 Ga. App. 158, 160 (5) (332 SE2d 899) (1985).

2. The City contends the trial court erred in instructing the jury on actual damages, lost market value and lost rental value when no evidence of these damages was presented. During the charge conference, the City withdrew its request to charge number 16 which provided that “the measure of damages for continuing an abatable nuisance is a diminution of the yearly rental value of the property damaged during the existence of the nuisance plus any actual damages sustained.” The court agreed with the City that no evidence had been presented concerning the diminution of rental value and agreed not to give the charge. However, after the court charged the jury, the City argued that the court had given charge number 16 and excepted. The judge denied he gave the withdrawn charge, but the City continued to argue the charge should not have been given because the court said it was going to withdraw the charge and because there was no evidence of special damages. The record shows that charge number 16 was not given.

The City contends for the first time on appeal that the court erred in giving a completely different charge concerning damages. “It is well established that this court will not review errors raised for the first time on appeal. [Cit.] ‘OCGA § 5-5-24 prohibits a party from complaining of the giving or failing to give jury instructions unless it objects before the jury returns its verdict, except where there has been a substantial error in the charge which was harmful as a matter of law.’ [Cit.]” Jones v. Brooks County Bd. of Commrs., 202 Ga. App. 515, 517 (2) (414 SE2d 729) (1992). It is clear from the record that the City did not object to the charge now asserted as error. Moreover, contrary to the City’s argument, the record reveals that evidence of damages was in fact presented. Pichón testified that the ditch would overflow into his parking lot causing it to crack and that he received an estimate to repair the parking lot in the amount of $4,000. Accordingly, we find no error.

3. The City also contends the trial court erred in charging the jury that “[i]f the City claims a right to use the drainage ditch as produced by evidence in the case, then it is under a duty to maintain it so that the content and flow of the surface waters would not overflow to damage — to the damage of the adjacent property owners.” The charge is a substantial repetition of the principle of law set forth by our Supreme Court in City of Atlanta v. Williams, 218 Ga. 379 (1) (128 SE2d 41) (1962). Despite the City’s attempts to distinguish Williams, it is clear that both cases involved “heavy rains which cause [d] overflows. . . .” Id. at 379. Accordingly, since “[t]his charge was a correct statement of the law and was adjusted to the evidence]” Lee v. Bartusek, 205 Ga. App. 551, 552 (2) (422 SE2d 570) (1992), we find no error.

4. The City asserts as error the evidence presented to support the award of litigation expenses and attorney fees. In support of his claim for these damages, Pichón testified that he “paid a retainer fee and lawyer’s fee of 35 percent.” When asked the amount of the retainer Pichón responded: “If I remember, it was a thousand. I don’t remember exact ... it was about a thousand something.” In proving his other litigation expenses for deposition costs and expert witness fees, Pichón similarly testified that he only knew the approximate costs and admitted that he did not know the actual costs or what the charges were for because he had “never seen a statement” for any of the charges.

Decided March 17, 1995

Reconsideration dismissed March 29, 1995.

Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, for appellant.

Franklin N. Biggins, Glaze, Glaze & Fincher, Steven M. Fincher, for appellee.

“ ‘An attorney cannot recover for professional services without proof of their value.’ [Cit.] Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney fee in light of the litigation history of the case. [Cits.] A party’s testimony as to the ‘approximate’ cost of legal fees is insufficient. [Cit.] Inasmuch as [Pichon’s] testimony alone did not give the jury sufficient basis upon which to award a reasonable amount for attorney fees, it was error to enter judgment on the jury’s award of attorney fees.” First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981). Since the award of attorney fees is not supported by sufficient evidence, the case is remanded to the trial court with direction that the attorney fees portion of the judgment be stricken. Similarly, “ ‘[s]ince an allowance for [the other litigation expenses] cannot be based on guesswork (cit.), [Pichón] failed to make out a proper case for these damages,’ and they must therefore be stricken from the award. [Cit.]” Wahnschaff Corp. v. O. E. Clark Paper Box Co., 166 Ga. App. 242, 244 (2) (304 SE2d 91) (1983).

Judgment affirmed in part, reversed in part, and remanded with directions.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2626.
    PRAYOR v. THE STATE.
    (456 SE2d 664)
   Pope, Presiding Judge.

Defendant appeals his conviction for aggravated assault.

The evidence shows defendant and his wife were in the kitchen washing dishes at about noon on October 24, 1992, when they looked through the kitchen window and saw the victim standing near defendant’s truck. Defendant and his wife ran out of their house, and according to their testimony, the victim had gotten into the truck. Defendant shouted something, and the victim jumped out of the truck and started running. Defendant chased the victim for a short distance, and then ran back into the house. Defendant’s wife had called “911” in the interim and defendant briefly spoke with the dispatcher. Defendant testified that the dispatcher was asking him questions, and in his statement at the time of his arrest, which was introduced at trial, defendant stated that he became frustrated with the questions of the dispatcher, and handed the phone back to his wife. Defendant testified that he decided he wanted to apprehend the victim for the police. Defendant retrieved his .357 revolver that he kept in his house for protection, and got into his car to look for the victim. Defendant testified he spotted the victim emerging from a path that was often used as a cut through to a nearby school. The victim testified that he saw defendant approaching fast in his car, and that he jumped on the sidewalk to avoid defendant. Both the victim and the defendant testified the victim began to run away from the defendant, and defendant testified he told the victim to “hold it.” The defendant also testified that he thought he saw something in the victim’s hand, but he admitted on cross-examination that he did not mention this in his statement given to police shortly after the incident. The victim continued to flee, and proceeded to run up some steps at the school. According to defendant, when the victim reached the top of the stairs, he made a quick turn back in defendant’s direction and defendant, who was only partly out of his car, fired a warning shot without aiming the gun. The victim testified that the defendant pointed the gun in his direction before he fired. The victim went down, and defendant came up to him and removed the victim’s belt and tied his arms behind his back. The police arrived, and discovered that the victim, who was still lying on the ground, had been shot. Defendant was then placed under arrest. Defendant and one of the officers at the scene also testified that the victim admitted he was trying to break into defendant’s vehicle, but the victim denied making this statement and denied any criminal activity. Defendant also testified that he fired his gun partly to get the victim to stop and partly in self-defense.

1. Defendant first argues the trial court erred in failing to properly charge the jury on the use of reasonable force in effecting a citizen’s arrest. Defendant asserts that the statute authorizing citizens’ arrests implies that whatever force is necessary may be used to arrest a fleeing felon, and that the trial court improperly instructed the jury that the use of deadly force was limited to certain circumstances. We find no merit to this contention. First, the multiple charges requested by defendant were confusing and repetitive, and the trial court was not required to give them. Moreover, OCGA § 17-4-60 merely authorizes a private person to make an arrest under certain circumstances; it does not prescribe the amount of force that may be used in effecting a valid arrest. The transcript reveals the charge given by the trial court was taken from the Supreme Court case of Hayes v. State, 261 Ga. 439, 443 (6) (a) (405 SE2d 660) (1991), wherein that Court stated as follows: “OCGA § 17-4-60 provides that a private citizen may make an arrest if a felony is committed in his presence or within his immediate knowledge. A private citizen may make an arrest upon reasonable and probable grounds of suspicion if the offense is a felony and the offender is escaping or trying to escape. For a citizen’s arrest to be valid, the citizen must use no more force than is reasonable under the circumstances. . . . Also, . . . deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony.” Id. See also Prayor v. State, 214 Ga. App. 132, 133 (447 SE2d 155) (1994). This enumeration is thus without merit.

2. Contrary to defendant’s second enumeration of error, under the evidence adduced at trial the jury was authorized to reject his citizen’s arrest/justification and self-defense/justification defenses and to convict him of the crime charged.

3. Defendant contends that the trial court erred in refusing to give his requested charge on the lesser offense of simple assault. “Simple assault ‘is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof.’ [Cit.] Thus, any defendant who has committed the greater offense of aggravated assault has necessarily committed the lesser offense of simple assault. [Cits.] ‘But this does not mean that the (trial) court should authorize the jury to enter a verdict for the lesser crime in every case.’ [Cit.] Where, as here, the undisputed evidence shows that the assault was committed with a deadly weapon, it is not error to refuse to give a charge on simple assault as a lesser included offense. [Cit.] ‘Under the facts here, [defendant] either committed an aggravated assault or none at all. There was no evidence of an attempt to commit an injury not involving (a) gun.’ [Cit.] It follows that the trial court did not err in refusing to give [defendant’s] requested charge.” Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591) (1993); Zachery v. State, 158 Ga. App. 448, 450 (3) (280 SE2d 860) (1981).

4. Contrary to defendant’s fourth enumeration of error, the trial court properly denied defendant’s motion to exclude evidence of the victim’s injuries. Specifically, defendant argues the paralyzed victim should have testified via camera hook-up so that his injuries would not be apparent to the jury, and that certain medical testimony about the injuries should have been excluded. We find no merit to these contentions. “ ‘The injuries sustained in an aggravated assault are relevant to that assault and therefore admissible. . . . “The Georgia courts have said many times that relevant evidence is not subject to an objection that it might inflame the minds of the jury or prejudice the jury and this is true even where the offered evidence is only cumulative.” ’ [Cit.]” Cail v. State, 194 Ga. App. 584, 585 (1) (391 SE2d 444) (1990). See also Jefferson v. State, 206 Ga. App. 544, 548 (5) (425 SE2d 915) (1992).

Decided March 17, 1995

Reconsideration denied March 29, 1995

Douglas R. Padgett, for appellant.

J. Tom Morgan, District Attorney, Richard S. Moultrie, Jr., Desiree S. Peagler, Assistant District Attorneys, for appellee.

5. Defendant next argues that the trial court erred in refusing to give his requested charge on accident. However, our review of the transcript in this case convinces us that this is not one of those “rare” cases in which a charge on both accident and justification was authorized. Cf. Koritta v. State, 263 Ga. 703 (438 SE2d 68) (1994); Turner v. State, 262 Ga. 359 (2) (418 SE2d 52) (1992). Accord Scott v. State, 261 Ga; 611, 612 (1) (409 SE2d 511) (1991); Duke v. State, 256 Ga. 671, 673 (2) (a) (352 SE2d 561) (1987).

6. Contrary to defendant’s remaining three enumerations of error, our review of the trial court’s charge to the jury shows the court properly instructed the jury on the law of justification, and on the State’s burden of proof relative to the defenses asserted by defendant at trial. Although defendant asserts otherwise, the trial court did instruct the jury on the definition of “forcible felony,” and we decline to reverse the conviction in this case on account of the court’s failure to also include a charge defining felony. Carver v. State, 262 Ga. 723, 724 (2) (425 SE2d 657) (1993).

Judgment affirmed.

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


text:
    A94A2627.
    MEADOWS et al. v. SIEGAL et al.
    (456 SE2d 268)
   Ruffin, Judge.

On January 13, 1989, Melvin and Evelyn Meadows entered into an agreement to lease shopping center space from Murray Siegal for use as a laundromat. The lease, which had a five-year term, provided that the Meadows could not sublet the space without Siegal’s written consent. The lease further provided that if the Meadows entered into a sublease, they “shall at all times remain fully responsible and liable for the payment of the rent. . . .” On September 12, 1990, the Meadows sold the laundromat and subleased the space to subtenants Sabrina and Clinton Fuller. The sublease agreement, which was executed by Siegal, the Meadows and the Fullers, also provided that the Meadows remained liable to Siegal for any obligation due under the lease.

On April 1, 1991, the Fullers, who were one month in arrears on rent, sold the laundromat to Mathias Odoemele who subsequently occupied the space without the consent of Siegal or the Meadows. After Siegal learned that the Fullers no longer occupied the laundromat, his property manager, Bruce Toups, met Melvin Meadows and Odoemele to determine the status of the space. Toups took no further action regarding the matter until May 3, 1991, when he sent a letter to the Meadows and the Fullers notifying the parties that Siegal was terminating the Fullers’ sublease. In the letter Toups further demanded “that all payments in arrears due under the Lease be made immediately by Tenant.” On June 13, 1991, the property management company returned a rent check sent by Odoemele, stating in the cover letter that “[b]ecause you are not a legal tenant, we are unable to accept the payment.” A copy of this letter was sent to the Meadows. Siegal later sued the Meadows for past due rent and the trial court granted his motion for summary judgment.

The Meadows contend the trial court erred in granting the motion because a genuine issue of material fact remained as to whether Siegal made an affirmative election to make Odoemele the actual tenant, thereby releasing them from any responsibility to pay the rent. Where a subtenant occupies the premises with the consent of the landlord, that subtenant “has no right to impose [another subtenant] upon the landlord without his consent. [Cit.]” Block v. Brown, 199 Ga. App. 127, 128 (1) (404 SE2d 288) (1991). “The provision against assignment, however, is solely for the protection or convenience of the landlord and may be waived and, when the landlord treats the lease as assigned, he is estopped from denying the validity of the assignment. [Cits.]” Id. Accordingly, “if someone other than the lessee or his recognized assignee occupies the premises and pays rent to the landlord as if he were a subtenant, the landlord may elect to treat him as a tenant occupying under the lease and bind himself and the tenant to the unexpired portion of the lease or expel him as a mere intruder. The landlord’s election may be effected by an express recognition of the subtenant or be implied from affirmative acts and conduct. The election establishes privity of contract between the subtenant and the landlord and renders the former liable to the landlord as a tenant. [Cits.] It is necessary, therefore, to determine [whether Siegal’s] acts indicate [that he accepted Odoemele] as his tenant.” Id. at 129.

While such a determination is generally for the jury, Step Ahead v. Lehndorff Greenbriar, 171 Ga. App. 805 (321 SE2d 115) (1984), in the instant case there was nothing, other than the Meadows’ unsubstantiated allegations, to show that Siegal made such an election. Siegal’s express conduct indicated he did not intend to release the Meadows from their obligations and accept Odoemele as his tenant. Siegal continued throughout the term of the lease to demand that the Meadows pay the past due rent. When Odoemele tendered payment, Siegal expressly rejected that payment because Odoemele was not a legal tenant. The fact that Siegal knew Odoemele occupied the space and did nothing about it is of no consequence because “knowledge [of a landlord] that his tenant has subleased the property, and a failure to interpose any objection, can not be held to be the acceptance by the landlord of the subtenant as his immediate tenant.” Hudson v. Stewart, 110 Ga. 37, 40 (35 SE 178) (1899). Accordingly, since the Meadows were clearly liable for the past due rent under the lease agreements, and there was no evidence indicating Siegal accepted Odoemele as a new tenant, the trial court did not err in granting Siegal’s motion for summary judgment.

Decided March 13, 1995

Reconsideration denied March 29, 1995

Action on lease. DeKalb State Court. Before Judge Smith.

Alvin L. Kendall, for appellants.

Steven K. Weiner, Diane E. Bessen, for appellees.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2661.
    QUERY v. THE STATE.
    (456 SE2d 704)
   Ruffin, Judge.

James Query was convicted of manufacturing methamphetamine and possession of methamphetamine with intent to distribute in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence and the denial of his motion for new trial.

Viewed in a light most favorable to the verdict, the evidence shows that Query was part of a criminal enterprise which used a car repair business as a front for a drug operation engaged in the manufacture and sale of methamphetamine.

Between October 22, 1988 and May 2, 1989, at the request of a postal inspector, Douglas County Sheriff’s Detective Scott Cosper and a narcotics detecting dog inspected numerous packages which were mailed to and from Query at his Douglas County address. Many of the packages were sent to and from Florida. Each time the dog detected the presence of illegal drugs. During that period, Cosper drove by Query’s residence several times and observed Query and an older model black and white Camaro on the premises. Cosper had also observed Query driving a red Nissan 300 ZX.

On May 3, 1989, Cosper participated in a search by federal postal authorities of Query’s home. When Cosper arrived, Query had been handcuffed and was lying on the ground. Searching Query’s bedroom, Cosper discovered a video surveillance system situated to monitor the curtilage outside the house, a “peanut brittle” like substance which smelled like methamphetamine, and objects used in the sale of drugs, including scales and mailing envelopes. Detective Wynn also participated in the search. He observed that the vents to the crawlspace in the basement were sealed shut and discovered several empty chemical bottles with the odor of methamphetamine. Wynn also noticed a camera and camera bag but found no suspected illegal substances. Another detective present during the search, Captain Wheeler, detected the odor of methamphetamine upon entering the house, saw empty muriatic acid bottles, and performed tests of the substance found on the scene. That substance tested positive for methamphetamine. The federal authorities retained the items seized and Query was arrested.

Captain Wheeler learned from a narcotics investigator in Atlanta that a woman named Melissa O’Connor would be visiting Query at the jail; that she would be driving Query’s black and white Camaro; and that after leaving the jail, she would go to a bank to make a deposit in Query’s account. Wheeler asked officers at the jail to notify him if O’Connor visited Query. On May 23, 1989, O’Connor visited Query, driving his black and white Camaro. Wheeler was notified, and after her visit, officers followed her to a bank where she was stopped and searched. The search produced $500 in cash, a deposit slip for Query’s account and 480 grams of methamphetamine in the camera bag Detective Wynn had seen in Query’s bedroom. During the impound search of the vehicle, more methamphetamine was recovered. A briefcase taken from the car contained a tag receipt for Query’s Nissan 300 ZX, a letter from O’Connor to Query, a deposit receipt for funds deposited in Query’s account; and a note which read: “A Courier, Davis Higgins 955-3278, get house cleaned, $6000 cash for Jake and caution Florida.”

Douglas County officers conducted their own search of Query’s home pursuant to a search warrant and discovered a methamphetamine lab hidden in the attic stocked with items used in the manufacture of methamphetamine, including various chemicals, a microwave oven, burners, laboratory glassware and a coffee pot. Three of Query’s fingerprints were discovered on a glass funnel from the lab. Officers also searched a storage bin in a mini-warehouse rented by Query where they found chemicals, laboratory glassware and other equipment used to produce methamphetamine. Approximately 875 grams of methamphetamine were seized by Douglas County officers.

Invoices from Query’s auto repair business, the “Car Doctor,” indicated Query billed O’Connor, referred to as his wife, and another woman, identified as his “soul mate,” numerous times for car repairs. Other invoices showed Query performed repeated repairs after the date he went to jail. Captain Wheeler expressed his opinion as a narcotics investigator that this practice of billing was consistent with money laundering.

The court admitted evidence regarding Query’s 1983 federal conviction of distribution of methamphetamine as well as evidence of his guilty pleas to distribution of methamphetamine in connection with the federal case based on the May 3, 1989 seizure at his residence.

1. In his first enumeration of error, Query contends the evidence was insufficient to support the convictions because there was no evidence that he possessed methamphetamine and the State failed to prove a crime occurred within the statute of limitation. We disagree.

The indictment charged that Query was engaged in the possession and manufacture of methamphetamine between January 1, 1988 and May 23, 1989. Query’s trial commenced on December 11, 1989, and ended on December 14, 1989. There was ample evidence that Query committed both offenses of which he was convicted within the statute of limitation (OCGA §§ 16-13-31 (e) (3); 17-3-1 (c)), the evidence was sufficient to enable a rational trier of fact to find Query guilty of both offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Allen v. State, 208 Ga. App. 854 (1) (432 SE2d 600) (1993).

2. Query contends his character was impermissibly placed in issue by Captain Wheeler’s testimony that he had arrested co-defendant, David Higgins, “twice for methamphetamine.” Any error in the admission of this testimony was harmless error as Query subsequently elicited like testimony from the witness. See Osborne v. State, 193 Ga. App. 276 (6) (387 SE2d 383) (1989).

3. Query contends his character was also impermissibly placed in issue by testimony which linked him with a drug dealer. The record shows that Captain Wheeler discovered Clarence Jenkins’ fishing license in Query’s warehouse bin. Query objected to Wheeler’s testimony that he had arrested Jenkins twice that year for solicitation of methamphetamine and possession of methamphetamine. Although the fishing license was proper res gestae evidence and the State was attempting to prove that Query was a part of a methamphetamine manufacturing enterprise, there was no evidence that Jenkins was a part of the organization. However, “[a]pplying the high probability test for harmless error, [cit.], to the entire circumstances before us, we find that assuming error did occur, it was harmless. There exists a ‘high probability’ that this alleged error did not contribute to the jury’s verdict of guilty as to any of the counts of which appellant was convicted.” Lance v. State, 191 Ga. App. 701, 704 (4) (382 SE2d 726) (1989). This is particularly true in light of the fact that the fishing license was discovered in Query’s storage bin among items used in the production of methamphetamine.

4. Query enumerates as error the court’s failure to take corrective action or grant a mistrial after Captain Wheeler volunteered the following testimony: “There’s too many good cases that you can make; too many dealers like James Query that you can make a case on to use bad information.” However, the record demonstrates that the testimony was not volunteered but in response to Query’s attorney’s question on cross-examination. The statement was made following a series of questions regarding Wheeler’s use of informants. “The ground here complaining of the admission of certain testimony of a witness for the State is without merit, since the ground discloses that the testimony was elicited from the witness on cross-examination by counsel for the movant. Where counsel on the cross-examination of a witness takes a chance by propounding a dangerous question, he will not be heard to object to the answer, no matter how prejudicial it may be, if the answer is a direct and pertinent response to the question. (Cits.) [Cit.] Since the answer here was responsive to the question propounded by appellant’s counsel, the trial court did not err in denying appellant’s motion for mistrial on this ground. [Cits.]” (Punctuation omitted.) Henson v. State, 168 Ga. App. 210, 212 (2) (308 SE2d 555) (1983).

5. In two enumerations, Query contends that the trial court erred in admitting evidence regarding the federal charges for possession of cocaine and methamphetamine with intent to distribute, including the transcripts of Query’s guilty pleas to those charges. Query argues that the State failed to have a pretrial hearing and make the requisite showings for similar transaction evidence as required under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). This enumeration is entirely without merit.

The record very clearly demonstrates that a pretrial hearing was held on the admissibility of the federal charges. The record is equally clear that the State specifically argued that these charges were not similar transactions, but rather, res gestae evidence that was “intertwined” with the instant case. Moreover, after the State’s argument, Query’s attorney stated that he agreed that the federal charges were not similar acts or transactions and objected only that the proffered evidence would improperly place Query’s character in evidence. When the State introduced copies of the federal indictments at trial, Query’s attorney made no objection other than to state that he had “already objected to the entry of any evidence regarding this case.” Thus, the evidence at issue was neither offered as a similar transaction nor objected to on those grounds and Query has preserved nothing for appellate review on this issue. See, e.g., Woods v. State, 212 Ga. App. 544 (1) (442 SE2d 22) (1994).

6. Query contends the court erred and failed to afford him due process of law in denying his motion to reopen the record to allow his trial counsel to testify as to his claim of ineffective assistance of counsel or, alternatively, to supplement the record. The record shows that Query was afforded a hearing on his claim of ineffective assistance of counsel but declined to call trial counsel to testify and opted instead to testify on his own behalf. “ ‘It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion. (Cits.)’ [Cit.]” Oswell v. State, 208 Ga. App. 883, 884 (2) (432 SE2d 586) (1993). We find no such abuse of discretion.

Decided March 17, 1995

Reconsideration denied March 29, 1995

Jill L. Anderson, Elizabeth A. Geoffroy, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

7. Query contends he was denied his Sixth Amendment right to effective assistance of counsel. However, Query’s “trial counsel were not heard on this issue at the motion for new trial hearing, and for this reason, we decline to address the merits of this enumeration of error. [Cits.]” Williams v. State, 251 Ga. 749, 809 (20) (312 SE2d 40) (1983).

8. Query contends the court erred in sentencing him to two life terms under OCGA § 16-13-30 (d) in that he had not been previously convicted of violating a Georgia narcotics law. The State concedes that a life sentence under OCGA § 16-13-30 (d) may only be imposed for a second violation of the Georgia Controlled Substances Act, and we decline to find otherwise, despite the State’s urging.

The prior offense used against Query was his 1983 federal methamphetamine conviction; thus, the life sentences were not authorized by law. They must be reversed, and the case is remanded to the trial court for resentencing. Taylor v. State, 186 Ga. App. 113 (3) (366 SE2d 422) (1988).

Judgment of conviction affirmed, sentence reversed, and case remanded for resentencing.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2721.
    VERMONT AMERICAN CORPORATION et al. v. DAY.
    (456 SE2d 618)
   Ruffin, Judge.

Luke J. Day sued Home Depot USA, Inc. and Clairson International Corporation (collectively referred to as “Home Depot”) for injuries he sustained when he tripped and fell over several closet rods in an aisle of a Home Depot store. We granted Home Depot’s application for interlocutory appeal to determine whether the trial court erred in denying Home Depot’s motion for summary judgment.

While shopping for a computer table, Day and his son were directed to a particular aisle by a Home Depot employee. Day testified in his deposition that while moving down the aisle and scanning the shelves, he observed a movable pipe ladder and boxes stacked on the floor which they walked around. However, approximately six feet further down the aisle, Day tripped and fell on six to ten closet rods which were either stacked upright against the shelves or placed on the floor. The rods measured two feet in length and were individually wrapped for sale in plastic with a printed blue label. The rods were manufactured by Clairson International Corporation whose employee placed the rods on the floor while he was changing the product display. Day first testified that he was not distracted by anything immediately before the fall but that he did not see the rods on the floor because they were possibly camouflaged or blended with the color of the concrete floor. However, he later admitted that he could not remember the color of the rods. After the fall, the rods were placed back in the same position as they had been prior to the fall. Day admitted that he was then able to see the rods.

Home Depot moved for summary judgment on the ground that the rods were an obvious hazard which could have been avoided had Day been exercising ordinary care for his own safety. We agree and find the plain view doctrine controlling.

“[A] merchant has the right to place certain articles in the aisles of his store, ‘ “[but], the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.” (Cit.)’ [Cit.]” Stone v. Winn Dixie Stores, 212 Ga. App. 291, 292 (442 SE2d 1) (1994).

“The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). “ ‘It was incumbent upon [Day], as a matter of law, to use [his] eyesight for the purpose of discovering any discernible obstruction or defect in [his] path. (Cits.)’ [Cits.] There is no duty to warn of an obvious peril. [Cits.]” Riggs v. Great Atlantic &c. Tea Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992).

Decided March 7, 1995

Reconsideration denied March 29, 1995

Brennan & Wasden, Joseph P. Brennan, Marvin W. McGahee, for appellants.

Jones, Boykin & Associates, Harold J. Cronk, for appellee.

Even if we were to accept Day’s contention that Home Depot was negligent in placing the closet rods in the aisle, the following discussion demonstrates “ ‘there is no genuine issue that the cause of [Day’s] fall was [his] own failure to exercise ordinary care.’ [Cits.]” Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (3) (443 SE2d 871) (1994).

As was the case in Colevins, Day speculated that he did not see the rods because they blended with the color of the floor. However, the evidence shows that the rods were discernible as there was no obstruction of Day’s view of the area where he fell, the six to ten 24-inch rods were individually packaged in plastic with blue labels, and Day eventually admitted the rods were visible. Accordingly, Day’s admission that the rods were visible is fatal. Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992). “In Smith we held that summary judgment is appropriate if the plaintiff could have seen the hazardous condition had she looked.” Id. Day’s admission that he was scanning the shelves immediately prior to the fall demonstrates that he was not looking at the floor ahead. Any distraction caused by Day’s scanning of the shelves was self-induced because “[i]tems of stock on shelves in . . . stores are not in themselves distractions.” Riggs, supra at 610.

Accordingly, the trial court erred in denying Home Depot’s motion for summary judgment.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.