text:
    A98A1241.
    BALES v. THE STATE.
    (503 SE2d 607)
   Eldridge, Judge.

Teddy Lamar Bales was indicted for a series of altercations with his wife, Brenda Bales, and with law enforcement officers, which occurred on October 25, 1995, December 8, 1995, and March 9, 1996. After a trial, a jury convicted the defendant of aggravated assault, battery, obstruction of a law enforcement officer (misdemeanor), criminal attempt to commit interference with government property, and two counts of simple battery for his activities on October 25, 1995. The defendant was convicted of misdemeanor obstruction of a law enforcement officer for the incident on December 8, 1995. The defendant was convicted of aggravated assault, cruelty to children, interference with government property, and one count each of felony and misdemeanor obstruction of a law enforcement officer for the incident on March 9, 1996. The defendant’s motion for new trial was denied. His subsequent motion for out-of-time appeal was granted.

The evidence viewed in a light most favorable to the verdict, shows the following: On October 23, 1995, Officers John Bennaman and Tim Rowley of the Heard County Sheriff’s Department responded to a domestic violence call at the Bales’ home. Mrs. Bales reported that the defendant had “whipped her with a stick” for several hours. Mrs. Bales’s back was bruised and bloody, and it appeared that she had been struck numerous times by an object. Some of the bruises overlapped each other. Mrs. Bales’s legs were also bloody. Mrs. Bales had to remove a piece of wood from her legs with a pair of tweezers. Mrs. Bales also stated that the defendant had bitten her on the back, and the officers observed bite marks on her back.

When Mrs. Bales attempted to re-enter her home with the officers, they found that the door had been barricaded, and Officer Bennaman had to force the door open. The officers found the defendant asleep in the bed with some of the children. The officers woke the defendant and asked him to get dressed. The defendant became very hostile and began cursing in a loud voice. As the officers were escorting the defendant out of the bedroom door in handcuffs, the defendant stopped in front of Mrs. Bales, looked directly at her, and intentionally spit in her face.

When the officers reached the yard with the defendant, he became more violent and attempted to get away. Officer Bennaman attempted to spray the defendant with OC spray, but only a portion of the spray hit him. In order to get the defendant into the police car, the officers had to physically carry him; Officer Bennaman picked the defendant up under his arms while Officer Rowley grabbed his legs. The defendant kicked at Officer Rowley and continued to curse and squirm as they carried him to the police car.

After the officers forced the defendant into the back of Officer Bennaman’s patrol car, the defendant continued to curse to such an extent that Officer Bennaman could not call on his radio to report he was en route to the sheriff’s department. The defendant kicked the cage between the back seat and the driver’s seat and kicked the back door of the patrol car. When Officer Bennaman turned around to tell the defendant to stop, the defendant spit in Officer Bennaman’s face. The defendant continued to curse in a loud voice and kick at the cage of the patrol car until they reached the sheriff’s department.

On December 8, 1995, Sergeant Robert Camp of the Heard County Sheriff’s Department stopped the El Camino within which the defendant was a passenger pursuant to a report that an individual involved in a fight at the local Kwiki store had fled the scene in the vehicle. John Brand, a jailer with the Heard County Sheriff’s Department, was riding in Sergeant Camp’s patrol car. When the defendant exited the vehicle, he was swinging his arms and cursing loudly. When Sergeant Camp attempted to pat the defendant down, the defendant fought with Sergeant Camp before fleeing the scene.

The police were once again called to the Bales’ home due to a domestic violence situation on March 9, 1996. When the officers arrived, Mrs. Bales was standing outside the house. Her arm was cut and bleeding. Mrs. Bales was very upset and stated her husband had cut or stabbed her with a knife. When the officers attempted to enter the house, the defendant fled through the back door into the woods. He was finally captured when he became tangled in a barbed wire fence.

The defendant resisted arrest. He cursed at the officers in a loud voice and attempted to hit and kick at them. The defendant kicked Sergeant Red in the leg. The defendant fought the officers the entire time they were escorting him to the patrol car. He refused to enter the patrol car voluntarily and grabbed the sides of the door as the officers tried to place him inside. Once the defendant was in the patrol car, he began kicking and butting his head against the back window. The patrol car’s window frame was broken loose, and the outside of the door was dented outward from the force of the defendant’s kicks to the interior of the door. When the officers attempted to remove the defendant from the patrol car at the station, the defendant fought the officers the entire time.

The Bales’ 12-year-old daughter, Mandy, gave a statement to police. She stated that, when she placed herself between the defendant and Mrs. Bales, the defendant told Mandy that if she did not move he would have to cut her.

1. The defendant challenges the sufficiency of the evidence.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). While both Mrs. Bales and Mandy gave testimony at trial that was in conflict with their prior statements, “it is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citations and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of the offenses for which he was convicted. Jackson v. Virginia, supra.

2. The defendant contends that the trial court erred in failing to grant his motion for a mistrial after the State placed his character into issue.

During trial, Mrs. Bales was called as the State’s first witness. Her testimony at trial was inconsistent with the statements she had given law enforcement officers during the course of their investigation. On direct examination, she testified that, during the October 25, 1995 incident, the defendant was angry at her because she had spent $400 of his money; that she was “doped up and drunk” and the defendant was trying to stop her from going out to get more beer; and that she called the police because she was angry. On cross-examination by defense counsel, she testified that she had spent between $400 and $700 on alcohol and drugs. Defense counsel then asked, “What type of drugs?” Mrs. Bales responded, “Crack cocaine.” Mrs. Bales went on to testify that she spent this money with her sister. On re-direct examination by the State, the following testimony was given by Mrs. Bales: “Q: Now you just testified again under oath that you spend money on cocaine back, when was that? A: When I was with my sister, ‘93. Q: Now do you remember talking to me Wednesday? A: Yes. Q: Did you tell me that you quit cocaine? A: Yes. . . . Q: Did you tell me that you had only done it approximately one time a month? A: When I done it, yeah. Q: That you quit in January of ‘95. A: Yes. Q: And did you tell me that there was only one person that you ever do cocaine with? A: Yes. I said the main person that I do it with is my husband is the main person.” At this time defense counsel objected and made a motion for a mistrial. The prosecutor stated that she expected Mrs. Bales to answer “yes” and her next question was going to be “And you never told me you did it with your sister Tammy” to contradict the testimony she had given on cross-examination. The trial court denied the defendant’s motion for mistrial and gave curative instructions to the jury to disregard the testimony. After the curative instructions, the defendant renewed his motion for mistrial.

“[T]he decision of whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. [Cit.]” Buxton v. State, 253 Ga. 137, 139 (3) (317 SE2d 538) (1984). The question, as asked by the prosecutor, required a yes or no answer, and any additional response made by the witness was a voluntary statement. “Given that the testimony was non-responsive to the prosecutor’s question, and the trial court gave proper curative instructions to the jury, we find no abuse of discretion in the trial court’s determination that a mistrial was not necessary to preserve [the defendant’s] right to a fair trial.” Johnson v. State, 223 Ga. App. 668, 671 (478 SE2d 404) (1996); Beach v. State, 258 Ga. 700, 701 (373 SE2d 210) (1988).

Judgment affirmed.

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

Decided June 3, 1998.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, for appellee.


source: Caselaw Access Project

author: Beasley, Judge. Pope, Presiding Judge,

license: Public Domain

text:
    A98A0068.
    WADE v. WHALEN.
    (504 SE2d 456)
   Beasley, Judge.

Charles Wade sued Dr. Thomas Whalen for medical malpractice arising out of the doctor’s participation in surgery on Wade’s mother. She died on August 12, 1992, allegedly as a result of the malpractice. Wade filed suit on August 10, 1994, two days before the running of the statute of limitation. Wade did not serve process on Dr. Whalen until eight months later on April 10, 1995. Dr. Whalen moved for summary judgment, asserting expiration of the time limitation. The court denied the motion and its renewal, but ultimately it did grant summary judgment. The issue is whether the trial court abused its discretion in finding Wade did not show diligent service of process.

1. ‘Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff. The correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. The plaintiff has the burden of showing lack of fault. . . . The question on appeal is whether the trial court abused its discretion in concluding that there was [not] due diligence by plaintiff in seeking to perfect service. To reverse the trial court, we would have to say as a matter of law that the trial court abused its discretion.”

“The special duty the plaintiff bears to exercise reasonable diligence in serving a complaint for which the statute of limitations has expired, is too well established to dissertate. [Cits.] The thing that can never be lost in sight is that the plaintiff’s cause of action was dead. It could not be revived unless the plaintiff used due diligence to perfect service, which diligence must be examined in light of the particular fact that the cause of action had expired.”

Diligence means “caution or care; persevering application: devoted and painstaking application to accomplish an undertaking: assiduity.” Webster’s Third New International Dictionary. It embraces the concept of persistence. We must remember that when measuring diligence with respect to service of process, it is in the context of notifying a defendant of suit beyond the time the law ordinarily allows for the bringing of such a suit. It is the plaintiff’s grace period.

This “special” duty of due diligence is elevated to an even higher duty of the greatest possible diligence once plaintiff becomes aware there is a problem with service. If the sheriff returns the summons after failed attempts, plaintiff becomes “ ‘obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.’ [Cit.]” At that point “reasonable diligence” is insufficient. The same elevated duty arises when defendant’s answer challenges service.

On August 11 Wade sent the summons and complaint to the sheriff to serve Dr. Whalen at a residence in Cobb County, Georgia. Dr. Whalen had moved to Irving, Texas, seven months earlier. The sheriff returned the service form to Wade by August 30 and indicated the doctor had moved. Wade sent the complaint via certified mail, return receipt requested, to the Cobb County address. It was forwarded to Dr. Whalen in Irving where he signed the postcard evidencing receipt. When Wade received the postcard, he sent another copy of the summons and complaint to the Cobb County sheriff and requested service be reattempted.

On October 12 Wade received Dr. Whalen’s answer, which raised the defenses of defective service and statute of limitation and which denied he resided at the Cobb County address. Wade hired a private investigator on October 18, who informed Wade the next day of the doctor’s address in Irving. A week later Wade served interrogatories asking for the doctor’s current home address and place of employment.

Sometime between November 10 and 17 the Cobb County sheriff returned to Wade the service form showing unsuccessful service. Wade forwarded process to a Texas constable in Irving on the latter date. On December 1 Wade received Dr. Whalen’s interrogatory responses which confirmed the Irving address and specified a work address. Two weeks later Dr. Whalen moved to a new residence in Dallas and on December 31 completed his work assignment for that employer. Service was unsuccessful at either the Irving address or the work address, and on January 12 Wade received the summons and complaint back from the Texas constable.

Several weeks later (February 3) Wade sent a letter to Dr. Whalen asking him to acknowledge service. The doctor moved for summary judgment on February 15 and served an affidavit listing his new address in Dallas. Wade forwarded the summons and complaint on March 14 to a Dallas constable, who in turn phoned Dr. Whalen on April 3 and 4 and set an appointment and served him on April 10.

During the eight months between the filing of the complaint and service of process, Wade was directly responsible for four significant delays. First, between August 30 and October 17 (47 days) Wade made no substantive effort to determine Dr. Whalen’s correct address even though (i) by August 30 the Cobb County sheriff had returned the service form indicating Dr. Whalen had moved and (ii) on October 12 Wade had received the doctor’s answer asserting defective service and denying the Cobb County address.

Second, from October 19 through November 16 (28 days) Wade was aware from his own investigator that the doctor had moved to Irving, but did not forward the process papers to an Irving constable until November 17.

Third, from January 12 through February 2 (21 days) Wade did nothing to pursue service even though on January 12 he received the summons and complaint back from the Irving constable.

Fourth, from February 16 through March 13 (25 days) Wade did nothing to pursue service even though (i) he was aware of Dr. Whalen’s new Dallas address and (ii) Dr. Whalen sought summary judgment based on ineffective service.

Wade made at least three errors contributing to the delay in service. First, he provided the Cobb County sheriff with an address that was seven months outdated, even though Dr. Whalen’s forwarding address was available from the post office. “The burden is on the plaintiff to ascertain a defendant’s residence, and that obligation does not arise only upon expiration of the statute of limitation. [Cit.]” Plaintiff is obligated to ascertain this information before filing suit.

Second, Wade sent a certified letter to the Cobb County address “in an attempt to see if the United States Post Office would disclose a new address.” He did not check the box on the certified letter form (for an additional fee) to receive the addressee’s forwarding address. The letter was forwarded to Whalen’s Irving address where he signed the postcard that was returned to Wade. Not having been requested nor paid to do so, the postal service did not alert Wade to the Irving address. Wade’s conclusion that this meant Dr. Whalen still lived at the Cobb County address was simply his own mistake that delayed discovery of the correct address.

Third, Wade misled the Irving constable by telling him Dr. Whalen traveled frequently to Atlanta and that he should try to serve him on a weekend. Dr. Whalen testified without contradiction that he traveled infrequently to Atlanta and never on a business day. The weekends were the least likely time for him to be home.

Based on Wade’s delays and missteps, the court did not abuse its discretion in finding Wade did not show the greatest possible diligence.

2. Citing OCGÁ § 9-11-26 (e) (2) (B), Wade contends Dr. Whalen was obligated to supplement his interrogatory responses to indicate that two weeks after serving them he moved to the new Dallas address. Regardless of whether the statute applies to this interrogatory response and whether Dr. Whalen’s February affidavit was a “seasonable” amendment under the statute, the two-month period between Dr. Whalen’s relocation and the affidavit overlaps only one of the four significant delays caused by Wade and does not excuse any of his three additional errors. Adequate other evidence grounded the court’s finding.

3. Citing Starr v. Wimbush, Wade argues that the first two orders of the court denying the motion for summary judgment and specifically finding ample evidence of reasonable diligence precluded a contrary later finding. The first order was entered on March 24, 1995 (before service was effected), and the second order was entered on September 21, 1995 (after service was effected).

In Starr the trial court had ordered service by publication in a ruling expressly finding defendant could not be found after due diligence. Defendant was personally served two months later, during which time several additional steps were taken to locate him. Because the attempted service by publication was ineffective, and because service had not been perfected until eight months after the statute of limitation had run, defendant moved to dismiss. The court granted the motion, finding plaintiff had failed to show due diligence in attempting to perfect service. Starr reversed, holding the publication order had established due diligence and the record clearly showed due diligence from the time of that order until service.

Starr is reconcilable with OCGA § 9-11-60 (h), which in 1966 (amended in 1967) abolished the law of the case rule. Nevertheless, “judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether rights have vested thereunder and whether or not innocent parties would be injured thereby. . . .”

Summary judgment orders which do not dispose of the entire case are considered interlocutory and remain within the breast of the court until final judgment is entered. They “are subject to revision at any time before final judgment unless the court issues an order ‘upon express direction’ under OCGA § 9-11-54 (b).” Because no express direction was issued on the first two orders, and because no rights had vested nor would any innocent parties be injured, power remained to revise the previous summary judgment orders upon a showing of just cause, an ingredient not demonstrated in Starr.

In Wade’s case, the previous orders applied a standard of reasonable diligence whereas the greatest possible diligence was called for. Both previous orders had been entered without a hearing, even though hearings had been requested. Service did not occur until 17 days after the first order was entered. The judge who entered the second and third orders (another judge entered the first order) conceded that in entering the second order he had felt obliged to “parrot” the first judge without reviewing the matter closely. Unlike the first and second orders, the third sets forth a detailed analysis of the facts, including the ease with which service was perfected once a phone call was made to the doctor at his correct address. Modification of previous orders can be accomplished implicitly.

4. Citing Poloney v. Tambrands, Inc., Wade contends the doctor’s actual notice of the action as evidenced by his filing an answer and participating in discovery means he was not prejudiced by late service. “Such notice is irrelevant. Where there has been no service of a suit, or waiver thereof, the necessity of service is not dispensed with by the mere fact that the defendant may in some way learn of the filing of the suit. In this case, there was no timely service and there was no waiver thereof.” Poloney differs in that it lists reasons to uphold the trial court’s finding of diligence; such rationale has been rejected as a basis to reverse a trial court’s finding of lack of diligence.

Judgment affirmed.

Ruffin, J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I concur in the opinion because the trial court did not abuse its discretion in finding that plaintiff Wade did not show due diligence in serving defendant Whalen. Nevertheless, I am concerned with the standard of “greatest possible diligence” in evaluating Wade’s attempts at service, and I recommend abandoning this standard except in instances in which the defendant has not been served and raises a service defense in his answer.

The standard of “greatest possible diligence” in the context of assessing a plaintiff’s attempts at service outside the statute of limitation was first used by this Court in Roberts v. Bienert, 183 Ga. App. 751 (1) (360 SE2d 25) (1987). In Roberts, this Court stated that while the plaintiffs were initially justified in relying on the marshal’s return of service, their receipt of the defendant’s responsive pleading to the complaint raising deficiency of service should have alerted them to the problem and inspired them, through counsel, to use the “greatest possible diligence to ensure proper and timely service.” Id. at 752.

Again in Garrett v. Godby, 189 Ga. App. 183 (375 SE2d 103) (1988), this Court used the standard of “greatest possible diligence” in explaining plaintiff’s duty to perfect service when the defendant had raised the defense of insufficiency of service in his responsive pleadings.

It was not until Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989), that the newly developed standard appeared in the context of a return of service before defensive pleadings were filed. In Walker, citing Roberts v. Bienert, this Court determined that the “receipt of the sheriff’s first return of service advising that the defendant could not be found within the court’s jurisdiction should have put her on notice and inspired her, through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” (Punctuation omitted.) Walker v. Hoover, 191 Ga. App. at 861. Since Walker, this Court repeatedly has used the elevated standard in the context of a plaintiff receiving a sheriff’s return of service indicating that there was a problem with service. The origin of the standard has been lost — even when defensive pleadings raising the defense of service have been filed, this Court has cited the return of service from the sheriff as the determinative point for using the “greatest possible diligence” standard. See, e.g., Mitchell v. Hamilton, 228 Ga. App. 850 (493 SE2d 41) (1997); Walker v. Bord, 225 Ga. App. 242 (483 SE2d 675) (1997); Sykes v. Springer, 220 Ga. App. 388 (469 SE2d 472) (1996); Devoe v. Callis, 212 Ga. App. 618 (442 SE2d 765) (1994); Nee v. Dixon, 199 Ga. App. 729 (405 SE2d 766) (1991); McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990). In fact, Patterson v. Johnson, 226 Ga. App. 396 (486 SE2d 660) (1997) and Robinson v. Stuck, 194 Ga. App. 311 (390 SE2d 603) (1990) appear to be the only decisions after Walker v. Hoover, 191 Ga. App. 859, employing the original rationale of the “greatest possible diligence,” in which the standard is triggered by the filing of responsive pleadings by defendant raising a service defense.

Meanwhile, despite this Court’s continual use of the “greatest possible diligence” standard, our Supreme Court has not used this higher standard in evaluating problems with service outside the statute of limitation. In Poloney v. Tambrands, Inc., 260 Ga. 850 (2) (399 SE2d 208) (1991), the Supreme Court affirmed the trial court’s finding that the plaintiffs were diligent in effecting service. In Poloney, the Court noted that the defendant had notice of the action, had filed defensive pleadings, and had begun participating in discovery before the plaintiffs perfected proper service. The Poloney Court stated that it would not disturb the trial court’s determination that “plaintiffs exercised due diligence in perfecting service. . . .” (Emphasis supplied.) Id. at 852.

More recently, in Ga. Farm &c. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995), our Supreme Court again addressed the due diligence standard for service outside the statute of limitation. In that case, the sheriff had been unable to perfect service until two days after the statute of limitation expired because of the unavailability of a registered agent. The Court stated: “[i]n determining whether diligence was exercised, the focus is upon the plaintiff’s efforts after becoming aware that the process server failed to perfect service in accordance with the time limit provided in OCGA § 9-11-4 (c). DeLoach v. Hewes, 211 Ga. App. 321, 322 (439 SE2d 94) (1993).” (Emphasis supplied.) Id. at 837.

In addition to our Supreme Court’s failure to adopt this higher standard, my research indicates that this Court has not consistently applied the “greatest possible diligence” standard. For instance in Gordon v. Coles, 207 Ga. App. 889 (429 SE2d 297) (1993), a return of service showed that defendant had moved, and afterwards the plaintiff learned that defendant was living in Mexico. Despite an earlier return of service which showed that plaintiff was having problems serving the defendant, the Court used the standard of “due diligence.” Again in Hossain v. Tohme, 205 Ga. App. 538, 539 (1) (423 SE2d 4) (1992), despite the marshal’s entry of service reciting that defendant had moved, this Court used the standard of “due diligence.” See also Cantin v. Justice, 224 Ga. App. 195 (480 SE2d 250) (1997).

The problem with employing the higher standard of “greatest possible diligence” after the plaintiff receives a return of service from the sheriff is that it creates an illogical distinction. Many plaintiffs are aware that there is a problem with service, despite the fact that the sheriff has not so indicated on a return of service. The notion of “due diligence” is predicated on plaintiff’s awareness that, for some reason, a defendant has not been served. Imposing upon this group of plaintiffs this higher standard serves no useful purpose. To the contrary, in cases in which the statute of limitation has expired and the defendant has entered an appearance in court and raised a service defense, the higher standard should be imposed upon the plaintiff. At this stage, a court is involved and the “greatest possible diligence” must be exercised by the plaintiff to ensure proper and timely service.

Decided June 4, 1998

Waycaster, Morris, Johnson & Dean, R. Leslie Waycaster, Jr, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., David A. Forehand, Jr., for appellant.

Sistrunk & Associates, Carla R. Johnson, Alston & Bird, Theodore E. G. Pound, Whitehurst & Riexinger, Elaine W. Whitehurst, Stephen P. Riexinger, for appellee.

In conclusion, this Court should return to the use of the standard of “due diligence” in evaluating all service attempts and abandon the higher standard of “greatest possible diligence,” except in cases such as Roberts v. Bienert, 183 Ga. App. 751; Garrett v. Godby, 189 Ga. App. 183; Robinson v. Stuck, 194 Ga. App. 311; and Patterson v. Johnson, 226 Ga. App. 396, in which the issue of service of process is raised by the defendant’s responsive pleadings. To the extent that Mitchell v. Hamilton, 228 Ga. App. 850; Walker v. Bord, 225 Ga. App. 242; Sykes v. Springer, 220 Ga. App. 388; Devoe v. Callis, 212 Ga. App. 618; Nee v. Dixon, 199 Ga. App. 729; McManus v. Sauerhoefer, 197 Ga. App. 114; and Walker v. Hoover, 191 Ga. App. 859, employ the higher standard of “greatest possible diligence,” they should be overruled.

       OCGA § 9-3-71 (a).

       (Citations and punctuation omitted.) Siler v. Johns, 173 Ga. App. 692, 693 (327 SE2d 810) (1985); Alexander v. Searcy, 204 Ga. App. 454, 457 (419 SE2d 738) (1992) (determination of due diligence reversible if discretion abused and insupportable as matter of law). See Lawrence v. Noltimier, 213 Ga. App. 628 (445 SE2d 378) (1994) (judge must “ascertain whether the plaintiff was in any way guilty of laches”); see also Mitchell v. Hamilton, 228 Ga. App. 850 (1) (493 SE2d 41) (1997) (“ ‘plaintiff has the burden of showing that due diligence was exercised’ ”); Cantin v. Justice, 224 Ga. App. 195, 196 (480 SE2d 250) (1997) (determination is within the trial court’s discretion).

       (Emphasis in original.) Varricchio v. Johnson, 188 Ga. App. 144, 145 (372 SE2d 455) (1988).

        Mitchell, supra, 228 Ga. App. at 851 (1); see Walker v. Bord, 225 Ga. App. 242, 243 (483 SE2d 675) (1997) (duty heightened to the greatest possible diligence once marshal returns summons).

        Sykes v. Springer, 220 Ga. App. 388, 390 (2) (469 SE2d 472) (1996); cf. Ga. Farm &c. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995) (“In determining whether diligence was exercised, the focus is upon the plaintiff’s efforts after becoming aware that the process server failed to perfect service in accordance with the time limit provided in OCGA § 9-11-4 (c)”).

        Patterson v. Johnson, 226 Ga. App. 396, 398 (486 SE2d 660) (1997); Robinson v. Stuck, 194 Ga. App. 311, 312 (1) (390 SE2d 603) (1990); Roberts v. Bienert, 183 Ga. App. 751, 752 (1) (360 SE2d 25) (1987).

       See Devoe v. Callis, 212 Ga. App. 618, 620 (1) (442 SE2d 765) (1994) (“the record shows an unexplained lapse of over a month ... in which there was no effort by [plaintiff] to verify [defendant’s] address”).

       Id. (“After the private investigator discovered that [defendant] had moved, there was an additional delay of nine days before [plaintiff] contacted a process server”).

       See Walker v. Bord, supra, 225 Ga. App. at 243 (plaintiff “did nothing for ten days following his failed attempt at serving” defendant); Varricchio, supra, 188 Ga. App. at 145 (“plaintiff sat and did nothing” to attempt service for over three weeks after sheriff informed plaintiff that defendant had moved).

        Devoe, supra, 212 Ga. App. at 620 (1) (plaintiff “did not act promptly on new information”).

       Id. at 619 (1) (defendant had moved eight months before plaintiff filed suit); see Mitchell, supra, 228 Ga. App. at 851 (1) (address was two years old); Patterson, supra, 226 Ga. App. at 398 (plaintiff has “the responsibility to investigate and learn where the defendant may be located and served”); Walker v. Bord, supra, 225 Ga. App. at 242 (forwarding address was available from post office).

        Walker v. Hoover, 191 Ga. App. 859, 861 (383 SE2d 208) (1989).

       201 Ga. App. 280, 281-282 (2) (410 SE2d 776) (1991).

         Id. at 282.

       Ga. L. 1966, p. 664, § 60 (h); Ga. L. 1967, p. 239, § 27.

       OCGA § 9-11-60 (h).

        Hodges Plumbing &c. Co. v. ITT Grinnell Co., 179 Ga. App. 521, 522 (1) (347 SE2d 257) (1986); see Barber v. Collins, 201 Ga. App. 104, 105 (2) (410 SE2d 444) (1991).

        Hodges, supra, 179 Ga. App. at 522; see Bradley v. Tattnall Bank, 170 Ga. App. 821, 822-824 (1) (318 SE2d 657) (1984).

       See Sykes, supra, 220 Ga. App. at 390 (2).

       Because the requests were not contained in a separately filed pleading entitled “Request for Oral Hearing,” the court was not required to hold a hearing but could do so at its option. See Uniform Superior Court Rule 6.3.

        Glover v. J. C. Penney &c. Ins. Co., 181 Ga. App. 753, 754 (1) (353 SE2d 587) (1987).

       260 Ga. 850, 852 (2) (399 SE2d 208) (1991).

       (Citations and punctuation omitted.) Walker v. Bord, supra, 225 Ga. App. at 244; see Sykes, supra, 220 Ga. App. at 390 (3).

       See Walker v. Bord, supra; Sykes, supra.


author: Judge Harold R. Banke.

text:
    A98A0673.
    DAVIS et al. v. SOUTHERN EXPOSITION MANAGEMENT COMPANY.
    (503 SE2d 649)
   Judge Harold R. Banke.

Enumerating eight errors, Jack Davis and University Auto Sales, Inc., d/b/a University Marine & Sailing Center, a/k/a Windsor Craft Boats (“UM”) appeal the entry of a default judgment, the denial of their motion to set aside default and the failure to grant their motion to dismiss.

This case arose in the wake of the 1992 Atlanta Boat Show. Southern Exposition Management Company (“SEMCO”), the owner, operator, and producer of that show, alleged that Davis, an Alabama resident, his company UM, and Genmar Industries, Inc., d/b/a Well-craft (“Genmar”), breached a boat show licensing agreement by displaying Wellcraft boats. SEMCO sought declaratory relief and to enforce an indemnification agreement.

At the time SEMCO filed the underlying action, UM’s lawsuit against SEMCO arising from the same boat show had been pending for over two years in Alabama. In its action, UM claimed that SEMCO, along with Genmar, intentionally interfered with its business and breached the boat show leasing agreement which permitted UM to display Wellcraft boats.

SEMCO waited until the eve of the trial in Alabama to file in Georgia. On April 11, about a month before the Alabama trial, Davis was served with the Georgia suit to which he failed to timely respond. Meanwhile, the Alabama action was tried from May 19 through May 28, and culminated in a $600,000 verdict in favor of UM. The Alabama court entered a final judgment in that amount on June 12, 1997.

Six days after the entry of the judgment in Alabama, Davis and UM filed a motion to dismiss premised on res judicata and OCGA § 9-11-13 (a). The Georgia trial court on June 20, 1997, granted SEMCO’s motion for a default judgment on the issue of liability. When Davis and UM moved to set aside the default, a final judgment in Georgia had not yet been entered because the damages remained to be proven.

The trial court rejected the arguments that the Georgia action was a compulsory counterclaim and that it was procedurally foreclosed after the entry of the Alabama judgment. The court ordered Davis and UM to pay the $600,000 verdict entered in the Alabama case, plus statutory interest and to pay $140,617.69 plus interest for SEMCO’s litigation expenses incurred in the Alabama action. Davis and UM appeal. Held:

1. Davis and UM contend that the trial court abused its discretion by denying their motion to open default. See West v. Smith, 196 Ga. App. 69, 70-71 (395 SE2d 302) (1990). We disagree.

Payment of costs is a condition precedent for opening default under OCGA § 9-11-55 (b). C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990). Merely offering to pay costs, as here, is insufficient. Hazzard v. Phillips, 249 Ga. 24, 25 (1) (287 SE2d 191) (1982). When this statutory requirement is not met, the trial court lacks discretion to open the default. Stinson v. Dept. of Human Resources Credit Union, 171 Ga. App. 303, 305 (5) (319 SE2d 508) (1984). See Robinson v. Moonraker Assoc., 205 Ga. App. 597, 598 (423 SE2d 44) (1992).

2. Davis and UM contend that the trial court erred in awarding $600,000 to SEMCO for a judgment SEMCO has not paid. In its Georgia action, SEMCO sought damages for breach of contract and to enforce an indemnification clause. At the damages hearing, SEMCO sought only to obtain the amount of the Alabama judgment entered against it and the expenses incurred in defending the Alabama action.

Where no funds have yet been expended, a party’s right to seek indemnification has not yet actualized. Carr v. Nodvin, 178 Ga. App. 228, 233 (3) (342 SE2d 698) (1986). It is undisputed that at the time of the hearing on damages, SEMCO had not paid any portion of the Alabama judgment and was actively pursuing post-trial motions in Alabama. See Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179, 182 (279 SE2d 477) (1981) (where no payment is yet made, “actual legal liability’ has not yet been incurred). Thus, until and unless SEMCO pays the Alabama judgment, no reimbursement to SEMCO need be made. To hold otherwise could enable SEMCO to recover a windfall in the event that SEMCO prevailed on its appeal of the Alabama judgment while receiving $600,000 to reimburse it for a judgment that it never paid.

3. Davis claims that the trial court erred in awarding judgment against him individually because he was not a party to the contract between SEMCO and UM. We agree.

Davis signed three documents: one as “authorized agent of exhibitor [UM],” another “in behalf of my company [Windsor Craft],” and a third one “by” Jack Davis. The Boat Show Authorization Form which contains the indemnification provisions at issue specifically provides that it is an agreement between the Exhibitor (Windsor Craft) and SEMCO. When Davis signed the agreement, he did so as being “authorized to sign this form in behalf of my company.”

SEMCO failed to cite any authority or evidence in support of a right to proceed against Davis individually. Commonwealth Financial Corp. v. Sherrill, 197 Ga. App. 403, 404 (1) (398 SE2d 438) (1990). In fact, SEMCO offered not a shred of evidence showing that this was Davis’ debt rather than UM’s corporate debt. Nor did SEMCO assert that it was entitled to pierce the corporate veil. See Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (2) (a) (392 SE2d 37) (1990). Because the pleadings and the exhibits attached thereto do not show any contract between Davis and SEMCO, the judgment against Davis must be set aside. See Bayne v. Sun Finance Co. &c., 114 Ga. App. 27, 29 (5) (150 SE2d 311) (1966) (conclusions of law and facts not well pleaded and forced inferences are not admitted by a default judgment).

4. The indemnification provisions at issue are not unenforceable and void as against public policy. In the agreement, UM agreed to release and indemnify SEMCO “against any and all claims for any such loss, damage or injury.” However, the contract also plainly states that SEMCO’s right to indemnification does not apply to any injury or damage or loss caused by SEMCO’s “wilful or wanton misconduct” or to damages caused by SEMCO’s “sole negligence.” See, e.g., Allstate Ins. Co. v. City of Atlanta, 202 Ga. App. 692, 693 (415 SE2d 308) (1992) (indemnification for one’s own misconduct permissible where provided by express language).

The jury in Alabama awarded $150,000 in compensatory damages and $450,000 in punitive damages. It is undisputed that the Alabama action was tried under Georgia substantive law including our law on damages. Tortious interference with business or contract may justify an award of punitives. Jones v. Padgett, 186 Ga. App. 362, 364 (5) (367 SE2d 88) (1988); WMH, Inc. v. Thomas, 195 Ga. App. 61, 66 (10) (392 SE2d 539) (1990). Similarly, fraud is tortious conduct that may support an award of punitive damages. Rogers v. deMonteguin, 193 Ga. App. 480, 483 (2) (388 SE2d 10) (1989). However, punitive damages cannot be awarded absent evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3) (b) (365 SE2d 827) (1988); Boyett v. Webster, 224 Ga. App. 843, 844 (2) (482 SE2d 377) (1997), rev’d on other grounds, 269 Ga. 191 (496 SE2d 459) (1998). If the punitive damages of $450,000 were predicated on wilful or wanton misconduct, then SEMCO was not indemnified under the terms of the agreement. Boyett, 224 Ga. App. at 844 (2). However, on the record before us, we cannot say whether any part of the jury’s award was based on either wilful or wanton misconduct or upon SEMCO’s sole negligence. Accordingly, we remand this issue to the trial court for that determination.

5. The trial court erred in awarding $140,617.69 in attorney fees and expenses against Davis and UM.

An award of attorney fees is not authorized where the party fails to prove the actual costs incurred and the reasonableness of those costs. Mitcham v. Blaylock, 214 Ga. App. 29, 31 (2) (447 SE2d 83) (1994). A determination of the amount of an award of attorney fees cannot be based on guesswork or inadmissible hearsay. Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993).

In this case, SEMCO offered only sketchy summaries to support its claims for attorney fees and costs attributable to the defense of the Alabama action. One of SEMCO’s witnesses admitted she lacked personal knowledge of the billing and that she did not bring the actual bills with her. UM and Davis objected to the admission of the summaries and pointed out they failed to show any supporting documentation such as time entries or other details. Moreover, the summaries added up to $125,940.55 or about $15,000 less than the amount awarded.

The attorney fees award must therefore be vacated and the case remanded for an evidentiary hearing to establish the amount of attorney fees, if any, owed by UM. Mitcham, 214 Ga. App. at 33 (2). Upon remand, if the trial court determines that SEMCO is entitled to indemnification from UM for part of the Alabama judgment, then SEMCO’s legal bills will have to be apportioned between those incurred for claims subject to SEMCO’s right to indemnification and those incurred in defending the claims that are not subject to indemnification. See Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669 (2) (476 SE2d 43) (1996).

Decided June 4, 1998.

Rowan & Neis, Robert J. Neis, for appellants.

Manchel, Johnson & Wiggins, Norman G. Johnson, Scott M. Kaye, Zell & Zell, Glenn Zell, for appellee.

6. In light of the above holding, we need not reach the remaining enumerations of error.

Judgment reversed and case remanded with direction.

Blackburn and Eldridge, JJ, concur.

       Although SEMCO apparently entered a certified copy of the Alabama judgment into evidence, no such document appears in the appellate record.


author: Eldridge, Judge.

text:
    A98A0879.
    In the Interest of D. W., a child.
    (503 SE2d 647)
   Eldridge, Judge.

The defendant, D. W., was a sixteen-year-old, tenth grade student at Griffin High School when he was involved in an altercation with a teacher, Joel Brumbeloe, on October 28, 1997. The State presented a petition to the Spalding County Juvenile Court charging D. W. with simple battery after he allegedly used his fist to hit Brumbeloe in the face, causing a “black eye.”

A hearing was conducted on November 24, 1997. Following its case-in-chief and the testimony of two defense witnesses, the State made an oral motion to amend the petition to charge D. W. with a violation of OCGA § 16-5-23.1 (i), battery against a school official. Defense counsel strenuously objected to the amendment, asserting that he was prepared to defend only against a charge of simple battery. The trial court overruled the objection, and the hearing continued under the amended petition. Following the presentation of evidence, the trial court found that D. W. had committed the act of battery against a school official and was, therefore, delinquent. D. W. was committed to the custody of the State for five years, the first two to be served at the Youth Development Center. D. W. appeals.

1. In his first enumeration of error, D. W. contends that the trial court erred in allowing the State to amend the petition, which had charged D. W. with misdemeanor simple battery, in order to allege battery against a school official, which is a designated felony under OCGA § 15-11-37 (a) (2) (B) (ii). D. W. contends that he was entitled to proper service and to a continuance as a matter of law. We agree and reverse the trial court’s adjudication of D. W. as a delinquent.

Under OCGA § 16-5-23 (a), “[a] person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” In contrast, under OCGA § 16-5-23.1 (a), “[a] person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” See also OCGA § 16-5-23.1 (b). Generally, battery is a misdemeanor. OCGA § 16-5-23.1 (c).

However, in 1997, the Georgia Legislature amended OCGA § 16-5-23.1 to create the specific crime of battery against a school official. See Ga. L. 1997, p. 1064, § 9. OCGA § 16-5-23.1 (i) states that “[a]ny person who commits the offense of battery against a teacher or other school personnel, engaged in the performance of official duties or while on school property shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years or a fine of not more than $10,000.00, or both.” Accordingly, the crime of battery against a school official is a greater offense than simple battery, a misdemeanor, and requires the additional proof that the infliction of “substantial physical harm or visible bodily harm” was upon a school official. In addition, the crime is a designated felony under OCGA § 15-11-37 (a) (2) (B) (ii), so that a finding that the defendant committed the act subjects him to significantly greater punishment than that allowed in the juvenile courts for a finding of delinquency based upon simple battery, for which a juvenile can be committed to the Department of Juvenile Justice for a maximum of two years, subject to the possibility of renewal for an additional two years. See OCGA §§ 15-11-37 (e) (1); 15-11-41 (a).

Even so, it is clear that, under Rule 6.6 of the Uniform Juvenile Court Rules, the State may amend a delinquency petition to add charges at any time prior to adjudication. However, the rule has the following proviso: “the court shall grant the parties such additional time to prepare as may be required to ensure a full and fair hearing. Amendments shall be freely permitted in the interest of justice and the welfare of the child. When the amended petition constitutes or adds additional charges, the petition shall he served in accordance with OCGA §§ 15-11-26 [and 15-11-27].” (Emphasis supplied.)

OCGA § 15-11-27 (a) requires personal service of the petition at least 24 hours prior to the hearing for all parties which can be located. See also OCGA § 15-11-26 (b). Other parties with ascertainable addresses can be served by registered or certified mail at least five days before the hearing. OCGA § 15-11-27 (a). However, OCGA § 15-11-26 (f) allows a child or his parents to waive service.

(a) In this case, the amendment to the petition was not presented until midway through the defense’s case. The amendment was given orally, and no written documents were presented either to the court or the defense. As such, the express, required, statutory service provisions were ignored. Further, there is no evidence that D. W. or his parents waived service by their presence at the hearing. On the contrary, D. W. appeared solely to answer a charge of simple battery, the only charge with which he had been served. Defense counsel’s objection to the amendment is additional evidence that there was, in fact, no waiver of service. Accordingly, “since there was no service of process and notice as required by the above subsections of the Juvenile Court Code and since there was no valid waiver of notice of the pending charge by service of process or otherwise, the entire hearing is a nullity. [Cit.]” In the Interest of W. M. F., 180 Ga. App. 397, 398-399 (2) (349 SE2d 265) (1986). The adjudication of delinquency must be reversed.

(b) In addition, the trial court failed to grant a continuance following the amendment, even though defense counsel expressly stated that he was not prepared to defend against the new felony charge. However, a continuance under the juvenile court rules is mandatory when the lack thereof will result in injury or prejudice to the defendant. See Sanchez v. Walker County Dept. of Family & Children Svcs., 237 Ga. 406, 410 (229 SE2d 66) (1976). In this case, D. W. clearly was prejudiced by the trial court’s failure to grant a continuance following the State’s amendment to the petition. Accordingly, it was error as a matter of law for the trial court to continue the hearing without allowing additional time for the preparation of a defense.

2. The two additional enumerations of error cited by D. W. are rendered moot by our decision in Division 1, supra.

Judgment reversed.

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

Decided June 4, 1998.

Adams Law Firm, Herbert Adams, Jr., Marc A. Pilgrim, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

       Notably, if this case had been brought against an adult in superior court, upgrading the charge from a misdemeanor to a designated felony would have required the issuance of an indictment under OCGA § 17-7-54 (a) or an amendment to the accusation under OCGA § 17-7-70 (a) (if the defendant had waived indictment). See also OCGA § 17-7-71 (a). In either situation, the case would have been continued. See OCGA § 17-7-71 (f) (a continuance is mandatory when it is “reasonably necessitated by an amendment” to the accusation); see also Brown v. State, 190 Ga. App. 678, 679 (379 SE2d 598) (1989); Riles v. State, 155 Ga. App. 586 (271 SE2d 718) (1980). Accordingly, under principles of due process, a juvenile is entitled to the same protection against unfair surprise and to the opportunity to prepare a defense. In re Gault, 387 U. S. 1 (87 SC 1428, 18 LE2d 527) (1967); In the Interest of S. H., 220 Ga. App. 569 (469 SE2d 810) (1996); In re B. C., 169 Ga. App. 200, 201-202 (311 SE2d 857) (1983); D. P. v. State of Ga., 129 Ga. App. 680 (200 SE2d 499) (1973).


text:
    A98A1179.
    BRITT v. THE STATE.
    (503 SE2d 653)
   Eldridge, Judge.

Chuwanda Britt pleaded guilty to fraud in obtaining food stamps during her full-time, unreported employment between March 1,1993 and October 31, 1994. In the indictment, Britt was charged with unlawfully obtaining food stamps totaling $5,982. However, Britt asserted at the plea hearing that the amount she actually received was approximately $4,000; she refused to plead guilty to obtaining the higher amount. The trial court accepted her guilty plea to the charge of fraud and immediately sentenced her to serve four years on probation. As a condition of such probation, the trial court ordered her to pay, inter alia, $5,982 in restitution to the State. She appeals the portion of her sentence ordering restitution.

1. In her first enumeration, Britt contends that the State failed to prove the dollar amount of food stamps that she unlawfully received. “Guilt was not at issue here since defendant pled guilty as charged of [fraud]. The statutes make it clear that restitution is based on the victim’s civil damages. See OCGA §§ 17-14-2 (2) and 17-14-19. Thus[,] the sufficiency of [the] evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence. [Cit.]” Lawrenz v. State, 194 Ga. App. 724, 725 (391 SE2d 703) (1990).

In this case, the State presented no competent evidence to support its assertion that Britt unlawfully collected $5,982 in food stamps. Its only evidence was a report from the Georgia Department of Human Resources Food Stamp Program that.indicated a total disbursement to Britt of $5,982 in food stamps between March 1993 and October 1994. The report is not in the appellate record. However, absent a foundation for admission as a hearsay exception, this evidence was inadmissible and should not have been considered by the trial court. OCGA § 24-3-1 et seq.; see also Suarez v. Suarez, 257 Ga. 102, 103-104 (2) (355 SE2d 649) (1987); Mitcham v. Blalock, 214 Ga. App. 29, 32 (2) (447 SE2d 83) (1994); Goodson v. State, 213 Ga. App. 283, 284 (444 SE2d 603) (1994); In the Interest of J. C., 163 Ga. App. 822, 823 (296 SE2d 117) (1982). Without this document, the State failed to present any evidence as to the dollar amount of food stamps allegedly received by Britt. As such, the evidence was insufficient to support the trial court’s order of restitution.

However, Britt admitted during the plea hearing that she unlawfully obtained “approximately $4,000” in food stamps. This admission was some evidence of the amount of damages so as to support an order of restitution, subject to this Court’s holding in Division 2, infra. Therefore, the trial court’s sentence of restitution must be reversed and remanded for a determination of the amount of such damages in accordance with the rules of evidence. See Lomax v. State, 200 Ga. App. 233, 235 (407 SE2d 462) (1991); In the Interest of J. C., supra at 823.

2. In her remaining enumerations of error, Britt asserts that the trial court was required to conduct a pre-sentence hearing on the amount of restitution, to consider the factors outlined in OCGA § 17-14-10, and to make specific written findings of fact as required by OCGA § 17-14-8. We agree.

“Code sections 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof. OCGA § 17-14-10 lists several specific factors which must be considered by the court before ordering restitution. Further, the amount of restitution must be based on competent and relevant evidence.” (Citations and punctuation omitted; emphasis in original.) Radford v. State, 223 Ga. App. 312, 313 (2) (477 SE2d 428) (1996); Cannon v. State, 246 Ga. 754, 756 (3) (272 SE2d 709) (1980); Fonseca v. State, 212 Ga. App. 463, 464 (2) (441 SE2d 912) (1994).

Under OCGA § 17-14-10, a trial court must consider, in addition to the amount of damages, the defendant’s present financial condition, her future earning capacity, the goals of restitution, restitution previously made, the period of time the restitution order will be in effect, and any other factors which are deemed appropriate under the circumstances. These issues generally are not addressed in or even relevant to a plea hearing or the guilt-innocence phase of a criminal trial. See Patterson v. State, 161 Ga. App. 85, 86 (5) (289 SE2d 270) (1982).

In this case, there is nothing in the transcript to indicate that the trial court considered these factors in determining whether or not to order restitution, and there is a total absence of any written findings of fact regarding such consideration. The transcript shows that, although defense counsel repeatedly sought to address the issue of Britt’s ability to pay restitution and her future earning capacity, her efforts were dismissed by the trial court. The trial court seemed to insist that the amount of restitution ordered should be based solely on the amount of damages proven by the State. This position conflicts with the express provisions of OCGA § 17-14-10.

Decided June 4, 1998.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, Phyllis Miller, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

“Accordingly, we must reverse that portion of [Britt’s] sentence which imposes restitution . . . and remand the case to the trial court with direction that a hearing on the issue of restitution be held at which OCGA § 17-14-9 and the factors in OCGA § 17-14-10 are to be considered and we further direct that the written finding required by OCGA § 17-14-8 [(a)] be made. Patterson v. State, supra at 86 (5).” (Punctuation omitted.) Murphy v. State, 182 Ga. App. 791, 793 (5) (357 SE2d 147) (1987); see also Fonseca v. State, supra at 464-465.

Sentence of restitution reversed and remanded with direction.

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


text:
    A98A1266.
    MONTANA v. BLOUNT et al.
    (504 SE2d 447)
   Eldridge, Judge.

Plaintiff-appellant Grant Montana appeals from the grant of a directed verdict in favor of defendants-appellees, the administrators of the estate of Joe Blount. We affirm.

Joe Blount owned a tract of land in Liberty County. In 1961, Blount surveyed the land and filed a subdivision plat (the “Dykes plat”) with the Clerk of the Superior Court of Liberty County. The Dykes plat established the boundaries of Pamona Subdivision and clearly delineated individual lots, several roadways, and a lake. The Dykes plat also created a public dedication of any covenants, easements, and restrictions contained in the recorded survey. Such easements showed roads as boundaries on the recorded plat. All grantees who took title subsequently from Blount were subject to such easements and covenants, and the legal descriptions in plaintiff’s deed used the lot as shown in the plat to describe his boundaries.

In 1962, Joe Blount conveyed Lot 1 of the subdivision to an entity entitled “Lake McDonald,” and thereafter the lot was reconveyed through several other grantees. Montana purchased the property in February 1994. According to his warranty deed, Montana’s property was bordered on the southwestern side by Charles Drive. Both the Dykes plat and a 1986 subdivision plat showed Charles Drive as a 50-foot-wide roadway running from Lake Side Drive to the lake. For many years prior to the conveyance to Montana, Joe Blount and his widow, defendant-appellee Jewel Blount, used the road to reach their lakefront property in order to inspect, repair, and maintain a dam on the lake. Charles Drive was never paved; instead, a dirt road runs the length of the roadway and between numerous trees. However, the dirt road was not co-extensive with the 50-foot-wide easement, as established in both the Dykes plat and the 1986 subdivision plat.

In 1995, one year after acquiring the property, Montana became concerned that Mrs. Blount was preparing to cut down numerous trees within the 50-foot-wide Charles Drive easement. Acting pro se, he filed a petition for declaratory judgment in equity and for equitable relief by permanent injunction in the Superior Court of Liberty County and requested a declaration regarding the nature and extent of his property ownership; he also requested a temporary and permanent injunction to prevent Mrs. Blount from removing any trees within the boundaries of Charles Drive.

During a jury trial on October 3, 1997, Montana admitted the easement but presented evidence that, even with the existing trees, Mrs. Blount was able to use the easement property for access to the lakefront property. Montana contended that the defendants had to prove reasonable necessity for the full use of the easement. The defendants (Mrs. Blount and the other estate administrators) moved for a directed verdict following Montana’s case-in-chief.

While the trial court stated that it granted a directed verdict, the trial court in fact took the equity action away from the advisory jury and made findings of fact and conclusions of law as chancellor that the defendants retained an ownership interest in the subdivision property along the lake and that this interest gave them an easement “for ingress and egress over [Charles Drive’s] entire width of 50 feet.” The trial court concluded also that Montana owned in fee simple the portion of Charles Drive abutting his lot up to the centerline of the road, but such ownership was subject to an easement or right-of-way in favor of the owners of every lot in the subdivision. See Tietjen v. Meldrim, 169 Ga. 678 (151 SE 349) (1930). Accordingly, the trial court found that the defendants had “the right and shall be permitted to clear and improve Charles Drive for use as a roadway to the extent of its entire length and its entire 50 foot width.” Montana appeals.

1. In his first enumeration of error, Montana contends that the trial court erred in directing a verdict for the defendants since issues of fact involving the necessity of the destruction of the trees exist for the jury.

(a) OCGA § 44-5-39 provides that a grantor, Blount, may create covenants that run with the land that bind the grantee, Montana. A deed or a plat mentioned in a deed can create a covenant. Jones v. Lanier Dev. Co., 190 Ga. 887 (11 SE2d 11) (1940). Such covenants may accrue to other grantees from the same grantor. Cawthon v. Anderson, 211 Ga. 77, 78 (1) (84 SE2d 66) (1954), held: “ ‘The owner of the fee has the right to sell his land subject to such reservations or restrictions as he may see fit to impose, provided they are not contrary to public policy, and such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee from the former owner who imposes the restriction is entitled to the same remedy for its enforcement as was [the] grantor.’ Spencer v. Poole, 207 Ga. 155 (1) (60 SE2d 371) [(1950)].” See also Grove Lakes Subdivision v. Hollingsworth, 218 Ga. 443, 444 (128 SE2d 499) (1962); Lawson v. Lewis, 205 Ga. 227 (2) (52 SE2d 859) (1949); Reid v. Standard Oil Co. &c., 107 Ga. App. 497, 501-502 (3) (130 SE2d 777) (1963).

“ When a grantee accepts a deed and enters thereunder, he will be bound by the covenants contained therein, although the deed has not been signed by him.’ [OCGA § 44-5-39.] See also Lawson v. Lewis, [supra].” Cawthon v. Anderson, supra at 78 (3). A deed that reserves an easement in the grantor is the equivalent to an express grant by the grantee. Champion v. Neason, 220 Ga. 15 (136 SE2d 718) (1964); see also Spencer v. Poole, supra; O’Barr v. Duncan, 187 Ga. 642 (2 SE2d 82) (1939); Atkinson v. Drake, 101 Ga. App. 485 (114 SE2d 213) (1960). However, all residual rights that the grantor did not convey to the grantee remain in the grantor, except to the extent that the grantor created easement rights in all subdivision owners in such retained rights. The right in the owner of land subject to easement to require the showing of reasonable necessity for use of the easement may be retained or relinquished through the grant of the express easement by the grantor like any other interest in the land.

Where a grantor-subdivider creates a subdivision plat, setting forth lots and streets for the benefit of the grantor and all subsequent grantees and subsequently conveys lots with legal descriptions that are dependent upon such plat, all grantee landowners receive the express grant of an easement of ingress and egress across and between the boundaries of such platted streets or rights-of-way, and such express grant by the subdivider relinquishes the right to require the showing of necessity over such platted streets or roads for the full use of such easement. Such rights and uses by all subdivision owners can be determined in an action in equity. Tietjen v. Meldrim, supra at 699. “The fee in the land embraced in the streets became vested in the owners of the abutting lots to the middle of the street, subject to the rights of way over the same in favor of the purchasers of the lots in this subdivision, for the purposes of ingress and egress to and from their lots. Hanbury v. Woodward Lumber Co., 98 Ga. 54 (26 SE 477) [(1895)]; Harrold [Bros.] v. Americus, 142 Ga. 686 (83 SE 534) [(1914)].” Id.

“ ‘It is established law in this State, and generally, that nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment. Notwithstanding such a grant, there remains in the grantor the right of full dominion and use of the land, except so far as a limitation thereof is essential to the reasonable enjoyment of the easement granted.’ Georgia Power Co. v. Leonard, 187 Ga. 608, 610-[611] (1 SE2d 579) [(1939)].” (Emphasis supplied.) Folk v. Meyerhardt Lodge No. 314 F. & A. M., 218 Ga. 248, 249 (127 SE2d 298) (1962). The rights not granted under an easement remain in the landowner. “It is not necessary that he should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted.” (Emphasis supplied.) Ga. Power Co. v. Leonard, supra at 611. However, the subdivider-grantor by the recordation of a plat and by dedication of the easements contained in the plat and deeds evidences the intent to relinquish such rights for the benefit of all subdivision grantees.

Where, as in this case, the grantor creates easements by recorded plat and deeds for the benefit of himself and other subdivision grantees prior to conveyance of the lots subject to the easement, such easement rights include full enjoyment of the easements created, and the subsequent grantee was not conveyed the right to require the easement holder to show the “reasonable necessity” for the use of such easement previously expressly granted, because such easements are corporeal hereditaments appurtenant to such subsequently acquired lots. See Tietjen v. Meldrim, supra at 700-701.

The deed to Montana did not contain a legal description that gave Montana’s property line as the centerline of the platted street; the legal description referred to the recorded plat for the dimension of the lots. See Tietjen v. Meldrim, supra at 699. In Tietjen v. Meldrim, the boundary line was described as extending up to and along a street shown in a plat. In this case, the plat shows the dimensions of the lot and the legal description references the plat and lot, as well as the adjoining road. Montana’s right to the land between the plat lot line and the centerline of the street is derived from common law. Thus, the intent of Blount and Montana as expressed by the recorded plat and deed was that Montana had full dominion, possession, and control over only the platted lot and not the right-of-way, although he had equitable and legal title to land out to the centerline of the easement.

Notably, the cases relied upon by Montana deal with non-abandonment of expressly granted easements through a recorded subdivision plat or the right to remove obstructions in or across the easement in equity actions. All of these cases deal with ingress and egress easements, but none describes the limit of use of such subdivision easements.

Therefore, the recorded subdivision plat and deeds to the subdivision lots, as the intent of the grantor, create a legal rebuttable presumption that “reasonably necessary use,” “fair,” or “reasonable enjoyment” of the easement requires the full use of the right-of-way or street as platted and dedicated. In this case, Montana’s evidence failed to rebut the legal presumption that easement holders did not have a “reasonable necessity” or need for full “reasonable enjoyment of the easement” that encompassed the entire easement right-of-way, and he failed to show grounds to enjoin the clear-cutting of the right-of-way within the sound discretion of the trial court.

(b) A party has no statutory or constitutional right to a trial by jury in an equity action, and the seeking of a temporary and permanent injunction is an action in equity. Cawthon v. Douglas County, 248 Ga. 760 (286 SE2d 30) (1982); Williams v. Overstreet, 230 Ga. 112 (195 SE2d 906) (1973). Such equitable action for permanent injunctive relief must be distinguished from a legal action for declaratory judgment where interlocutory injunctive relief is sought “in order to maintain the status quo pending the adjudication of the questions,” and which would involve a legal issue for jury trial, unless the issues are a matter for equitable relief even under declaratory judgment. OCGA § 9-4-3 (a) and (b). The superior court judge may choose to use a jury to return a special verdict in an equity case with disputed issues of material fact. Cawthon v. Douglas County, supra at 763; Guhl v. Davis, 242 Ga. 356, 358 (249 SE2d 43) (1978).

Since Montana’s action was in equity for the grant of permanent injunctive relief and to determine his equitable rights to the land lying beyond the boundaries of the legal description of his deed to the centerline of the abutting easement for the platted road, and since a jury sits in equity only in an advisory capacity to the trial judge, then it was not error for the trial court either to determine that there existed nothing for which the jury could render an advisory verdict, or to decide to try the case without the jury and find that Montana was not entitled to equitable relief. There existed no conflict in evidence when Montana failed to rebut the legal presumption of “reasonable necessity” and “reasonable enjoyment of the easement.” Hanson v. First State Bank &c., 254 Ga. 235, 236 (327 SE2d 730) (1985). The trial court made the required findings of fact and conclusions of law for the trial of the issues by the court. OCGA § 9-11-52; Hanson v. First State Bank &c., supra at 236-237.

Decided June 4, 1998.

Grant Montana, pro se.

Ray C. Smith, for appellees.

2. Montana’s second enumeration is without merit, as it challenges an alleged ruling of the trial court that was not, in fact, made.

Judgment affirmed.

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

       See, e.g., Ford v. Harris, 95 Ga. 97 (22 SE 144) (1894); Schreck v. Blun, 131 Ga. 489 (62 SE 705) (1908); Tietjen v. Meldrim, supra; Sadler v. First Nat. Bank &c., 267 Ga. 122 (475 SE2d 643) (1996); Smith v. Bentley, 70 Ga. App. 13 (27 SE2d 252) (1943); Barnes v. Cheek, 84 Ga. App. 653 (67 SE2d 145) (1951).


text:
    A98A1430.
    BROWN v. THE STATE.
    (504 SE2d 452)
   Eldridge, Judge.

Robert Edward Brown appeals a Henry County jury’s verdict finding him guilty of the offense of kidnapping with bodily injury resulting from an incident that occurred at 3:00 a.m. in the Kangaroo convenience store on Highway 42 in McDonough, Georgia. A videotape caught 90 percent of the incident and is before this Court, as it was before the jury during trial.

The videotape and the testimony of the victim, store clerk Mary Jo Branham, show that Branham, who is approximately five feet two inches in height and twenty-one years old, was cleaning around the cola machine when Robert Brown entered the store. After “browsing” for a few minutes, Brown, who is significantly taller and heavier than Branham, grabbed her and put his hand into her back. He told her he had a gun and would kill her if she did not cooperate. He dragged her toward a storage room in the back of the store. Branham resisted and “fell down beside a rack that was in there to keep him from getting me all the way in the store room and he just kept hitting me” with his fists. Brown then grabbed her “by my hair and took me up to the cash register and told me to give him all of the money.” Brown, often staring directly at the video camera, crouched down below the store counter while holding onto the girl. Hands visibly shaking in terror, Branham opened the cash register and gave Brown the $107 therein.

After the robbery was completed, Brown dragged Branham around the counter and forced her out the front door. He attempted to force her into a car in the parking lot. She resisted, and he threw her up against the car. Branham ran back toward the store with Brown chasing her. As she entered the store, Brown tackled her into a candy display rack. The videotape shows that he beat her about the face and head with his fists — repeatedly. The girl put her arms in front of her face, and “He just — he kept hitting me and every time he looked at me I would just — [he] hit me. . . .” Brown then ran from the store. Mary Jo Branham, her face bruised and bloody, came around the counter and set off the alarm.

Robert Brown was identified through the videotape. Located that same day, Brown gave a voluntary, in-custody statement to the police. He stated that he was a cocaine addict and admitted robbing the Kangaroo convenience store to support his addiction. Brown also admitted his acts of violence toward Mary Jo Branham, including attempting to force her into a car and beating her with his fists once he had chased her back into the store. Held:

Brown contends that the trial court erred in failing to give his requests to charge on the included offenses of (1) aggravated assault and (2) false imprisonment. Under the facts of this case, we do not agree.

1. Brown’s Request to Charge No. 1 tracks the language of the aggravated assault statute, OCGA § 16-5-21 (a) (1) and (2). The request to charge states in pertinent part that “[a] person commits the offense of aggravated assault when that person assaults another person: (1) With intent to murder, rape, or rob; or (2) With a deadly weapon, or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (1), (2). Brown contends that the charge should have been given as a lesser included offense of kidnapping with bodily injury.

(a) Herein, there was no evidence of an intent to “murder” or “rape.” Accordingly, the related principles contained in OCGA § 16-5-21 (a) (1) are inapplicable. Further, while there was evidence of aggravated assault with intent to rob, such evidence was unrelated to the greater offense for which the aggravated assault charge was submitted, i.e., kidnapping with bodily injury.

As a matter of law, aggravated assault — with intent to rob as the factor in aggravation — is not a lesser included offense of kidnapping with bodily injury. See Brown v. State, 247 Ga. 298, 302 (9) (275 SE2d 52) (1981). The two offenses share no essential elements. Aggravated assault with intent to rob requires the reasonable apprehension of receiving bodily injury and proof of the intent to rob the victim. Kidnapping with bodily injury requires no such finding. The kidnapping, as indicted, requires the finding of an unlawful abduction and actual injury, while such finding is not necessary for conviction for aggravated assault with intent to rob. Id.; see also OCGA §§ 16-1-6; 16-1-7.

Thus, subsection (1) of OCGA § 16-5-21 (a) does not apply to the offense for which Brown’s lesser included charge was submitted, i.e., kidnapping with bodily injury.

(b) Herein, there was also no evidence of any “object, device, or instrument” used in the beating of Branham during the kidnapping so as to make applicable that portion of OCGA § 16-5-21 (a) (2) related thereto. Further, fists and hands are not “deadly weapons” per se within the meaning of OCGA § 16-5-21 (a) (2). Richards v. State, 222 Ga. App. 853, 854 (476 SE2d 598) (1996). A determination that fists are “deadly weapons” requires an instruction to the jury that fists may be considered as such through an analysis of “their use, wounds inflicted, and other surrounding circumstances.” Id. at 854 (1) (a). However, Brown submitted no such request to charge.

Thus, as submitted, subsection (2) of OCGA § 16-5-21 (a) was insufficient to instruct the jury with regard to aggravated assault as a lesser included offense of kidnapping with bodily injury.

(c) Moreover, Brown submitted his statutory request to charge on aggravated assault specifically as a lesser included offense of kidnapping with bodily injury. However, factually, the statutory charge, as submitted, fails to distinguish between (1) an aggravated assault that may have been perpetrated on the victim when she was first beaten for refusing to enter the store room; (2) an aggravated assault that may have been perpetrated against the victim during the course of the indicted armed robbery; and (3) an aggravated assault that may have been perpetrated against the victim during the course of the subsequent asportation of the victim to the parking lot and her consequent beating for escaping. A review of the videotape and the testimony of the victim show that these were three, separate occurrences during the course of the entire incident, each capable of sustaining independent prosecution.

Thus, while we have previously held that a charge in the exact language of a statute shows no error, even though a part of the charge may be inapplicable under the facts, such is not the case when, as here, a submitted statutory request to charge on a lesser included offense may be applicable to facts which are unrelated to the specific, greater offense for which the charge was submitted. Clearly, under such a factual scenario, the lesser included charge must be accurately tailored to the greater offense for which it is submitted in order to avoid confusion and the possibility of an erroneous conviction in an unintended manner.

(d) “Examination of appellant’s Request to Charge No. [1] reveals that it is taken verbatim from [OCGA § 16-5-21]. This charge has not been tailored to the facts of this particular case, and as tendered, it was potentially confusing to the jury.” Lindley v. State, 225 Ga. App. 338, 342 (2) (a) (484 SE2d 33) (1997). The requested charge contains instructions as to issues not reasonably raised by the evidence relating to the greater offense for which the instruction was submitted, i.e., kidnapping with bodily injury. Further, the instruction is insufficient to apprise the jury as to the law with regard to that portion of the statute that might have been applicable to the kidnapping with bodily injury offense, i.e., beating with fists as an assault with a “deadly weapon.”

“If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992); Lindley v. State, supra at 342. “ A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case.’ ” (Citation omitted.) Woityra v. State, 213 Ga. App. 89 (1) (443 SE2d 867) (1994). A trial court does not commit error where it refuses to give a confusing or misleading instruction, such as Brown’s Request to Charge No. 1. Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991).

(e) Further, in light of the overwhelming evidence against Brown, which included the videotape and Brown’s uncontradicted confession, it is highly probable that the failure to give a jury instruction on aggravated assault did not contribute to the verdict. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

2. There was no error in the trial court’s refusal to give Brown’s requested charge on false imprisonment as a lesser included offense of kidnapping with bodily injury. This charge was not warranted by the evidence since any detention of Mary Jo Branham was accompanied by the element of asportation. Under the evidence presented at trial, Brown was either guilty of the offense of kidnapping or not guilty of any offense. There was no evidence raising the lesser offense. Pope v. State, 221 Ga. App. 578, 579 (2) (472 SE2d 111) (1996); Stovall v. State, 216 Ga. App. 138, 140 (5) (453 SE2d 110) (1995).

Decided June 4, 1998.

Chapman & Pope, Daniel C. Chapman III, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

Judgment affirmed.

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

       An additional count of the indictment charged Brown with armed robbery; the same jury deadlocked on that count, and a mistrial was declared.

       Overruled on other grounds in Wilson v. Zant, 249 Ga. 373 (290 SE2d 442) (1982).

       See, e.g., Moore v. State, 207 Ga. App. 892 (429 SE2d 335) (1993).

       Such situation is analogous to the long-standing principle that, even when charging in the language of the aggravated assault statute, it is reversible error when the jury is instructed: (1) that the offense may be committed in more than one manner where only one manner is alleged in the indictment, and (2) facts in evidence raise a reasonable probability that the jury may have convicted the defendant of committing the offense in a manner not charged in the indictment. Levin v. State, 222 Ga. App. 123 (473 SE2d 582) (1996).

       We note that the charging conference was not transcribed, and Brown placed no objection on the record relating thereto. See Jackson v. State, 213 Ga. App. 170, 171 (444 SE2d 126) (1994).


author:
Blackburn, Judge. Smith, Judge,
      Eldridge, Judge,

text:
    A98A0491.
    FLOURNOY v. HOSPITAL AUTHORITY OF HOUSTON COUNTY.
    (504 SE2d 198)
   Blackburn, Judge.

James Flournoy sued the Hospital Authority of Houston County d/b/a Perry Hospital for injuries sustained when Flournoy slipped on a ramp at the hospital. The trial court granted the hospital’s motion for summary judgment, and Flournoy appeals. For the reasons discussed below, we reverse.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

“[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

With respect to the first prong, there was sufficient evidence for the jury to find that the ramp was a hazardous condition of which defendant had actual or constructive knowledge. Plaintiff presented the expert testimony of Peter Combs, an architect. Combs testified that the slope of the ramp exceeded the maximum permitted by the standard building code, rendering the ramp unsafe. Although he did not know whether Houston County had adopted the standard building code, he testified that it was the standard code in force throughout the south and that he was not aware of any Georgia counties that did not follow such code. He further testified that the non-skid coating on the ramp appeared to have been worn, and that in his opinion the level of slickness of the ramp was a hazard. He also testified that, even if Houston County had not adopted the standard building code, that would not affect his opinion as to the ramp’s safety.

Defendant can be presumed to have knowledge of the ramp, having built it in 1984 and used it continuously since. The fact that defendant painted the ramp with a non-skid paint in 1989 supports an inference that defendant was aware of the potential hazard. Given that defendant used the ramp continuously, it can be inferred that defendant had actual or constructive knowledge of the worn nature of the non-skid coating. Therefore, for purposes of summary judgment, plaintiff has satisfied the first prong of the Robinson test.

With respect to the second prong, plaintiff’s lack of knowledge of the hazard, Robinson held that plaintiff’s evidentiary burden on this issue does not arise “until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson, supra at 749. Moreover, our analysis of this issue must be guided by Robinson’s directive that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication.” Id. at 748.

Defendant claims that plaintiff’s negligence is established as a matter of law by the fact that plaintiff had previously negotiated the ramp without difficulty. Defendant relies on cases holding that “[w]hen a person has successfully negotiated an allegedly dangerous condition on a previous occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom.” Williams v. Sing Bros., 226 Ga. App. 657, 658 (1) (487 SE2d 445) (1997). However, this rule has no application in the present case. The danger allegedly posed by the ramp resulted from a combination of the slope of the ramp, the fact that the nonskid coating had worn down, and the fact that the ramp was wet. It cannot be said as a matter of law that an individual using the ramp would have appreciated the danger posed by the combination of these elements. See Lamb v. K-Mart Corp., 173 Ga. App. 847 (328 SE2d 559) (1985) (“Where the plaintiff alleges that the fall was caused by a combination of water and a defect in the material making up the surface upon which plaintiff fell, it is not sufficient to gain summary judgment to merely show that plaintiff had notice of the water on the surface”).

The fact that plaintiff had successfully walked up the wet ramp the day of the accident cannot be said as a matter of law to have given him actual or constructive knowledge of the hazard of walking down the wet ramp. Indeed, the fact that he did not slip going up is more likely to have lulled him into believing the ramp was safe than to have alerted him to its unsafe condition. Plaintiff’s expert testified that people seldom slip going up a ramp, but are more likely to slip going down. Therefore, it cannot be said that defendant has established plaintiff’s negligence for purposes of summary judgment, and the court erred in granting summary judgment to defendant.

In Manley v. Gwinnett Place Assoc., 216 Ga. App. 379 (454 SE2d 577) (1995), we affirmed the grant of summary judgment to a defendant under facts very similar to those in this case. However, Manley was decided before the Supreme Court’s strong admonition in Robinson that issues such as plaintiff’s negligence and lack of ordinary care for his personal safety are generally not susceptible of summary adjudication. In light of the Supreme Court’s clear message in Robinson, Manley is hereby overruled to the extent that it conflicts with this opinion.

Judgment reversed.

Pope, P. J., Beasley, Johnson and Ruffin, JJ., concur. McMurray, P. J, and Birdsong, P. J., concur fully and specially. Smith and Eldridge, JJ., concur specially. Andrews, C. J., concurs in the judgment only.

Smith, Judge,

concurring specially.

I concur fully in the majority opinion authored by Judge Blackburn. Although I was the author of Manley v. Gwinnett Place Assoc., 216 Ga. App. 379 (454 SE2d 577) (1995), I agree with the final paragraph of the majority acknowledging that Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997) clearly changed the analysis that must be applied in cases such as this one and Manley. Except in unusual circumstances, these cases, like the vast majority of other slip-fall cases, are now for jury determination.

I am authorized to state that Presiding Judge Birdsong joins in this special concurrence.

Eldridge, Judge,

concurring specially.

While I concur entirely with the majority, I believe that several important legal factors should also be addressed.

1. The legal significance under OCGA § 51-3-1 of the Americans With Disabilities Act, the Rehabilitation Act of 1973, or the Georgia Access To & Use of Public Facilities By Persons With Disabilities Act is that the owner/occupier has actual or constructive knowledge of any static condition or the absence of any safety device mandated or prohibited under such Acts. Thus, any owner/occupier of premises subject to such Acts has satisfied as to them the first prong of liability “that the defendant had actual or constructive knowledge of the [condition]” and that such knowledge is “superior” to the invitee’s knowledge, because such Acts put them on notice of the dangers and possible risk of injury to those individuals within the ambit of the Acts as to the requirements for the premises. Robinson v. Kroger Co., 268 Ga. 735, 736 (493 SE2d 403) (1997); Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). However, once the owner/ occupier has knowledge for purpose of the Acts, the owner/occupier has knowledge as to all invitees that come on the premises. See OCGA § 51-3-1. The mandates of the Acts make the owner/occupier have superior knowledge to the invitee as to mandated or prohibited conditions on the premises and approaches.

2. The foregoing is separate and apart from negligence per se, which is dependent upon the purpose of the law and of coverage of the Act’s protection, although it satisfies part of plaintiff’s legal burden of proof. Keith v. Beard, 219 Ga. App. 190 (464 SE2d 633) (1995); Bradley v. Custom Sprinkler Systems, 218 Ga. App. 431 (461 SE2d 592) (1995); Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150 (325 SE2d 819) (1984); Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546 (301 SE2d 903) (1983). Thus, if the plaintiff can prove that he comes within the statutory definition of “disabled,” then he may be able to prove negligence per se and show that safety was the purpose of the Acts. Thompson v. Crownover, 259 Ga. 126, 129 (4) (381 SE2d 283) (1989); Biggs v. Long, 212 Ga. App. 195, 199 (3) (441 SE2d 677) (1994).

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

Decided June 5, 1998.

Nelson & Lord, Ellis M. Nelson, for appellant.

Harman, Owen, Saunders & Sweeney, David C. Will, for appellee.

       Americans With Disabilities Act, 42 USCS § 12101 et seq., Pub. L. No. 101-336 (104 Stat. 327) (1990); the Accessibility Guidelines for Buildings & Facilities, 36 CFR § 1191.1, App. A, pp. 648,674; 56 FR 45518; and the Rehabilitation Act of 1973, as amended, 29 USCS § 701 et seq.; 42 USCS § 12201 (a); 59 FR 17446.

       OCGA § 30-3-9 requiring compliance with American National Standards Institute (“ANSI”) specifications A117.1-1986 or A117.1-1980.


text:
    A98A0330.
    COLE v. THE STATE.
    (502 SE2d 742)
   Judge Harold R. Banke.

After Alfred Thomas Cole was convicted of armed robbery and aggravated assault, he received a life sentence. On appeal, he challenges the sufficiency of the evidence on both counts.

This case arose when the victim, a German immigrant employed at Wal-Mart, walked out to the parking lot during her lunch hour to place some items in her car. As she opened the trunk, she noticed a white Jeep Cherokee backing into a nearby parking place. When she closed the trunk and turned back toward the store, Cole was standing immediately in front of her. He reached for the strap of her purse. Initially, the victim resisted. But after seeing Cole holding a gun pointed at her chest and hearing him say, “Don’t make me use this,” she relinquished her purse. Cole ran to the Jeep and drove off. Held:

Cole argues that the evidence was insufficient to establish the intent element of aggravated assault. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). We disagree.

To prove intent, the State had to show the defendant intended an act “which places another in reasonable apprehension of immediately receiving a violent injury.” Osborne v. State, 228 Ga. App. 758, 759 (492 SE2d 732) (1997). The victim’s testimony of Cole’s actions and words when he pointed the gun at her chest and her fearful reaction to them refute Cole’s contention that there was no proof that his use of the weapon generated reasonable apprehension in the victim. Matthews v. State, 224 Ga. App. 407, 408 (1) (481 SE2d 235) (1997). Notwithstanding Cole’s contention to the contrary, “ ‘[i'Jntent to injure is not an element of aggravated assault with a deadly weapon when the assault element is predicated on OCGA § 16-5-20 (a) (2).’ [Cit.]” Id.

We must also reject Cole’s assertion that the evidence of actual or constructive force was insufficient to establish armed robbery. The record shows that Cole forced the victim to surrender her purse by pointing the gun at her chest. This is sufficient to satisfy OCGA § 16-8-41 (a). See Eady v. State, 182 Ga. App. 293, 294 (1) (b) (355 SE2d 778) (1987).

Judgment affirmed.

Johnson and Smith, JJ, concur.

Decided May 14, 1998

Reconsideration denied June 8, 1998.

Gloria D. Reed, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

       The aggravated assault charge merged with the armed robbery count.