author: Phipps, Judge. Mikell, Judge, Andrews, Presiding Judge,

text:
    A02A0421.
    MORRISON v. J. H. HARVEY COMPANY, INC.
    (567 SE2d 370)
   Phipps, Judge.

On July 13, 2000, Evelyn Morrison sued J. H. Harvey Company (Harvey) for negligence in having caused her to slip and fall while a patron at Harvey’s Supermarket in Brunswick on July 14,1998. Morrison testified by affidavit that the fall occurred on July 14, 1998, contrary to numerous documents and affidavits submitted by Harvey reflecting that the fall occurred on July 11,1998. Finding a contradiction between Morrison’s affidavit testimony and certain of her interrogatory responses on the issue of when the fall occurred, the trial court construed Morrison’s testimony against her and awarded summary judgment to Harvey based on the running of the applicable two-year statute of limitation. We hold that Morrison did not give contradictory testimony and that a conflict in the evidence necessitates submission of this case to a jury. We, therefore, reverse.

In answering Harvey’s interrogatories, Morrison acknowledged that after she fell at Harvey’s Supermarket, she was taken by ambulance to the emergency room of Southeast Georgia Regional Medical Center, and that she had not been involved in any other accident or occurrence at this supermarket except the one giving rise to this suit. The emergency room report, which bears Morrison’s signature, reflects that her treatment at that facility occurred on July 11, 1998. The emergency room physician whose name appears in the report testified by affidavit that he treated Morrison for a slip and fall at Harvey’s Supermarket on July 11, 1998. In addition, the manager of the supermarket testified by affidavit that Morrison’s slip and fall occurred on July 11, 1998. As a result of the slip and fall, the supermarket prepared a customer accident report which shows the date of the fall as July 11, 1998. In her affidavit, Morrison nonetheless averred that the slip and fall occurred on July 14, 1998.

According to the trial court, Morrison “must explain the discrepancy between her discovery responses, which tie the date of her fall to the date of her emergency room treatment, and her contention by affidavit that the fall occurred on a date subsequent to the date of that treatment.” Citing Anglin v. Harris, the court ruled that Morrison’s failure to explain this discrepancy renders her opposition to summary judgment a conclusory statement insufficient to create a dispute of material fact.

1. Anglin applies the rule articulated in Prophecy Corp. v. Charles Rossignol, Inc that “[t]he testimony of a respondent on summary judgment is to be construed against her where it is self-contradictory, vague, or equivocal,” absent a reasonáble explanation.

The first question is whether answers to interrogatories constitute “testimony” within the meaning of the Prophecy Corp. rule. We hold that they may, as it has been recognized that answers to interrogatories by a party may be admissible in evidence as admissions, and that admissions are evidence.

2. The next question is whether Morrison’s affidavit testimony and her discovery-response admissions are self-contradictory, vague, or equivocal. In her affidavit, Morrison testified without vagueness or equivocation that her slip and fall at Harvey’s Supermarket occurred on July 14. This testimony is not contradicted by Morrison’s interrogatory-response admissions that she was treated for her injuries at the emergency room on the same date as the fall and that this was the only time she ever fell at this supermarket. Although Morrison’s discovery responses do tie the date of her fall to the date of her treatment at the emergency room, they do not address the issue of when those events occurred. Contrary to the finding of the trial court, Morrison did not testify in her affidavit that the fall occurred on a date subsequent to her treatment. Morrison merely testified that the fall (and thus the treatment) occurred on a date subsequent to that shown by Harvey’s evidence.

Unquestionably, Harvey has presented a compendium of persuasive evidence (including a document signed by Morrison) reflecting that Morrison’s slip and fall occurred on July 11. And Morrison has failed to explain her basis for challenging this evidence. The Prophecy Corp. rule, however, does not extend so far as to require any explanation unless the testimony is self-contradictory, vague, or equivocal. Consequently, we find Prophecy Corp. and thus Anglin inapplicable here.

If this case were to be presented to a jury, and if the jury were to find that the slip and fall occurred on the fourteenth of the month rather than the eleventh, such a verdict, though decidedly against the weight of the evidence, would be supported by testimonial evidence given by Morrison. The trial court thus erred in granting Harvey’s motion for summary judgment. As recognized in cases such as Tronitec, Inc. v. Shealy, determining witness credibility and weighing the evidence are jury functions and not those of the judge in ruling on a motion for summary judgment.

3. The dissent refers to certain of Morrison’s interrogatory answers, which we have not considered. The reason we have not considered them is that the parties have not raised any arguments concerning them. The reason for this would be that they bear no real relevance to this appeal, as there is no conflict between these interrogatory responses and Morrison’s affidavit testimony.

The dissent correctly notes that Morrison stated in her interrogatory responses that her medical bills and records were attached but that neither the attachments nor photocopies thereof appear in the appellate record: Nonetheless, the dissent assumes that medical records were attached to . Morrison’s responses and that they reflect the same date for her fall as that set forth in the records relied on by Harvey. Based on this assumption, the dissent would find a conflict between Morrison’s affidavit testimony and this documentary evidence (supposedly) relied on by her. If such a conflict were in fact shown by the record, we might agree with the dissent that summary judgment was correctly granted to Harvey under Prophecy Corp. (or some extension thereof). Because such a conflict does not appear in the record, we are forced to conclude that Harvey was not entitled to summary judgment.

Judgment reversed.

Johnson, P. J., Smith, P. J., and Miller, J., concur and concur specially. Mikell, J., concurs specially. Blackburn, C. J., and Andrews, P. J., dissent.

Mikell, Judge,

concurring specially.

Although I agree generally with the majority, I write separately because the rule in Prophecy Corp. v. Charles Rossignol, Inc. applies only to “self-contradictory, vague or equivocal” testimony and only to testimony given by the plaintiff. It does not apply when a plaintiff’s testimony conflicts with discovery furnished by the plaintiff or with other evidence in the record.

Testimony means words spoken or written under oath. Evidence is a broader, generic term which includes testimony but also includes exhibits, documents, etc. Answers to interrogatories could be the sworn testimony of a party. If so, they would fall within the rule of Prophecy Corp. and could be compared with that party’s deposition or that party’s affidavit in a search for contradictions, vagueness, or equivocation. In the case at bar, however, the plaintiff’s answers to the defendant’s interrogatories are not testimony at all. They are not under oath. Moreover, they do not even purport to be the words of the party plaintiff. They are signed by her attorney rather than by the party, as required by OCGA § 9-11-33. The only testimony by the plaintiff in the record seems to be her affidavit of August 9, 2001, submitted in opposition to the motion for summary judgment. There is no other testimony by her with which to compare it in order to invoke the rule in Prophecy Corp.

The trial court was correct that the contemporaneous, documentary evidence, including the hospital records and the business records of the defendant, establishes that the fall occurred on July 11, 1998. That objective evidence, some of which bears the signatures of the plaintiff or her husband, combined with the affidavit testimony submitted by the defendant, including the affidavit of the emergency room physician, seems convincing evidence as to the date of the injuries. The only evidence in favor of the plaintiff is her subjective recollection, in an affidavit prepared three years after the event, that the fall occurred on July 14, 1998. Nonetheless, under our longstanding tradition in Georgia civil practice, that affidavit is adequate to defeat a motion for summary judgment, unless the Prophecy Corp. rule applies. The reason for our longstanding tradition regarding summary judgments is that any other procedure would start the trial and appellate courts on the slippery slope toward weighing evidence. That weighing is the task of a jury.

Our adherence to this traditional procedure does not mean that a movant for summary judgment is helpless when its objective evidence is confronted by self-serving, subjective recollection. The movant could serve requests for admissions per OCGA § 9-11-36 and thereafter move for all expenses incurred in proving the truth of the matter pursuant to OCGA § 9-11-37 (c). Or the movant could take the party’s deposition and attempt to come within the purview of Prophecy Corp. But a movant may not ask a judge to weigh the strong, objective evidence against the subjective affidavit and grant summary judgment. Therefore the majority is correct, and we must reverse the trial court and remand the matter for farther proceedings.

I am authorized to state that Presiding Judge Johnson, Presiding Judge Smith, and Judge Miller join in this special concurrence.

Andrews, Presiding Judge,

dissenting.

Because I believe the trial court correctly determined that plaintiff Morrison had failed to reasonably explain evidentiary discrepancies between her affidavit and her responses to interrogatories as required by Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), I must respectfully dissent.

In addition to the facts set out in the majority, Morrison’s answers to other interrogatories should be considered. Interrogatory Number 4 asked if Morrison had been involved “in any accident, casualty, automobile collision or other occurrence at any time before or after the incident described in your complaint” which resulted in any injury. (Emphasis supplied.) In response, she stated, “None.” Interrogatory Number 11 asked for the names of each person reasonably believed to have information “relevant to the alleged casualty” or supportive of the allegations made in her pleadings. In response, she listed the manager and employees of Harvey, the paramedics who transported her to the hospital, and the treating physicians at the emergency room. She also referred, in her answers to interrogatories, to her “medical bills and records” as evidentiary support of her claims. Although they are not attached to the interrogatory responses in the record here, those responses state that the records are attached. At least two sets of the emergency room medical records are contained in the record here, and every page contains either a computer imprinted notation of the date, July 11, 1998, or a handwritten notation of that date, including the page signed by Morrison.

The affidavit filed by Morrison cannot be considered in a vacuum, as has been done by the majority, in concluding that, in her affidavit testimony, she “testified without vagueness or equivocation” that the fall occurred on July 14. The majority finds the affidavit not contradicted by the interrogatory responses because, although the responses “do tie the date of her fall to the date of her treatment at the emergency room, they do not address the issue of when those events occurred.”

It is unclear how the court reaches this conclusion when, considering all of the interrogatory responses, including Morrison’s own reliance on the hospital records in support of her claim, there is an inherent conflict. As stated in Prophecy Corp., supra at 30 (2), “[i]t is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.”

Morrison’s statement that the accident occurred on July 14 is in direct contradiction of the medical records which she put forth in support of her claim and attached to her answers to interrogatories. Also, Interrogatory Number 21 asked what Morrison was doing 24 hours “immediately prior to and . . . immediately following the incident complained of,” i.e., the fall at Harvey’s. In response, she stated that she had been shopping prior to the incident and that “Plaintiff was at the emergency room, then at home with complete bed rest the 24 hours after the incident occurred.”

The burden rests on the party giving contradictory testimony to offer a reasonable explanation for the contradiction, and whether that has been done is a question of law for the trial judge. Prophecy Corp., supra. Here, as concluded by the trial court, no such reasonable explanation was offered. As in Anglin v. Harris, 244 Ga. App. 140 (534 SE2d 874) (2000), Morrison failed to come forward with evidence contradicting the unequivocal contemporary medical records and business records which showed the accident and treatment occurred on July 11, entitling Harvey to summary judgment on its affirmative defense. Miller v. Kitchens, 251 Ga. App. 225, 227 (553 SE2d 300) (2001).

Decided June 20, 2002.

Walter D. Adams, for appellant.

W. Douglas Childs, for appellee.

I am authorized to state that Chief Judge Blackburn joins in this dissent.

       244 Ga. App. 140 (1) (534 SE2d 874) (2000).

       256 Ga. 27, 28 (1) (343 SE2d 680) (1986).

       (Footnote omitted.) Anglin, supra, 244 Ga. App. at 142 (1).

        Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169 (496 SE2d 903) (1998).

        Crosby v. Cooper Tire &c. Co., 240 Ga. App. 857, 867 (8) (524 SE2d 313) (1999), rev’d on other grounds, Cooper Tire &c. Co. v. Crosby, 273 Ga. 454 (543 SE2d 21) (2001).

        Faulkner v. Brown, 92 Ga. App. 602, 603 (1) (89 SE2d 583) (1955).

       In Anglin, the plaintiff against whom summary judgment was awarded gave equivocal testimony in her deposition as to the date of the accident giving rise to the suit. Here, Morrison’s deposition was not taken. Had it been, she may have been caught in the same equivocation as was Anglin.

       Compare Anglin, supra, where the plaintiff in her deposition equivocated on the issue of when the accident occurred.

       We do not mean to imply that Harvey could not assert that Morrison’s position lacked substantial justification under OCGA § 9-15-14 (b) if the jury returned a defense verdict.

       249 Ga. App. 442, 448 (6) (547 SE2d 749) (2001).

       256 Ga. 27 (343 SE2d 680) (1986). Accord Anglin v. Harris, 244 Ga. App. 140 (534 SE2d 874) (2000).

       Black’s Law Dictionary (5th ed. 1979), p. 1324.

        Williamson v. Lunsford, 119 Ga. App. 240 (2) (166 SE2d 622) (1969).

       In Anglin, supra, 244 Ga. App. at 142 (1), the testimony of the plaintiff was, “at best, equivocal as to the day and date of the accident.” Anglin recites a general rule of law that “ ‘[a] shadowy semblance of an issue is not enough to defeat the motion for summary judgment,’ ” citing Owen v. M & M Metro Supply, 198 Ga. App. 420, 422 (2) (401 SE2d 612) (1991). Owen cites the leading Georgia case on summary judgment procedure, Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (1) (126 SE2d 442) (1962). Although a correct statement of the law, the rule is dictum in all three decisions. When resolution of disputed facts would negative an essential element of the plaintiff’s case, or would establish a bar to the action (e.g., the expiration of the statute of limitation), then a genuine issue exists. When a genuine issue exists, slight evidence in opposition defeats a motion for summary judgment, unless Prophecy Corp. applies.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A0482.
    BROWN v. McGRIFF.
    (567 SE2d 374)
   Phipps, Judge.

Bradford G. Brown, M.D., appeals the grant of summary judgment in favor of George W. McGriff, Esq., who sued him for payments due on a promissory note. McGriff established a prima facie right to judgment by producing the note, showing that Brown executed it, and showing that it was in default. Because Brown failed to come forward with evidence supporting a defense, summary judgment against him was proper.

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. We review a grant of summary judgment de novo and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

In support of his motion for summary judgment, McGriff presented his own affidavit, wherein he stated that he or his law firm had represented Brown in various legal matters since 1994. In September 1998, McGriff notified Brown that he planned to withdraw from continued representation because of unpaid legal bills in excess of $150,000 for services provided. Brown urged McGriff to continue representing him. The two agreed that the amount outstanding would be reduced to $150,000, that Brown would make an immediate payment of $50,000 and execute a note in McGriff’s favor for the remaining $100,000, and that McGriff would continue to represent Brown. The record contains an executed copy of the parties’ Memorandum of Understanding and Agreement to that effect, which also stated that their earlier contract of employment for legal representation was thus amended. The record also contains a copy of the $100,000 note, which Brown signed in favor of McGriff. Brown failed to comply with the payment terms of the note, and McGriff sued.

1. Brown essentially contends on appeal that the note fails for lack of consideration. He asserts in his brief that from 1994 through 1998, he paid McGriff more than $250,000, and that at the time of signing the note, McGriff had not done any work that justified an outstanding balance of over $100,000. Brown points to OCGA § 13-3-40 (a), which provides that “[a] consideration is essential to a contract which the law will enforce.”

In granting summary judgment to McGriff, the trial court relied on former OCGA § 11-3-408 and determined that “no consideration [was] necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind.” But the court’s reliance on that Code section, which was replaced in 1996 by OCGA § 11-3-303 (a) (3), was misplaced. “Instrument,” as used in those Code sections, is defined as a “negotiable instrument,” which requires, among other things, that the writing be payable to order or to bearer. Because the note at issue in this case does not contain such “words of negotiability,” it is not a negotiable instrument.

Notwithstanding, where a grant of summary judgment is right for any reason, we will affirm. While a promise unsupported by adequate consideration is unenforceable, here, the parties’ mutual exchange of promises constituted adequate consideration for their amended agreement.

McGriff established a prima facie right to judgment as a matter of law by producing the note and showing that Brown executed it and that he was in default. The burden then shifted to Brown to come forward with evidence supporting a defense preventing the grant of summary judgment. He did not do so, and the grant of summary judgment was proper.

Decided June 20, 2002.

Bradford G. Brown, pro se.

Patrick F. McMahon, for appellee.

2. McGriff’s motion for frivolous appeal penalty is denied.

Judgment affirmed.

Andrews, P. J., and Mikell, J, concur.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       During the pendency of McGriff’s motion for summary judgment, Brown’s new attorney withdrew, and Brown has continued pro se.

       See Ga. L. 1996, pp. 1306, 1309, 1324-1325.

       OCGA § 11-3-104 (b); see Thogerson v. State, 224 Ga. App. 76, 77 (479 SE2d 463) (1996).

       Former OCGA § 11-3-104 (a) (1); see Hall v. Westmoreland, Hall & Bryan, 123 Ga. App. 809, 811 (182 SE2d 539) (1971).

       See Hall, supra.

        Eichelkraut v. Camp, 236 Ga. App. 721, 726 (2) (513 SE2d 267) (1999).

       OCGA § 13-3-40 (a).

       See Sage Technology v. NationsBank N.A. South, 235 Ga. App. 405, 407 (2) (509 SE2d 694) (1998).

        Frame v. Booth, Wade & Campbell, 238 Ga. App. 428, 431 (2) (519 SE2d 237) (1999); Gouldstone v. Life Investors Ins. Co. &c., 236 Ga. App. 813, 815 (1) (514 SE2d 54) (1999).

        Frame, supra at 431-432.

       See id.


author: Miller, Judge.

text:
    A02A0490.
    CITY OF DECATUR v. DEKALB COUNTY.
    (567 SE2d 376)
   Miller, Judge.

The City of Decatur appeals from the trial court’s order granting declaratory relief to DeKalb County and a permanent injunction against Decatur, forbidding Decatur from enforcing its zoning, building, and other ordinances with respect to the construction of the DeKalb County courthouse and other county government building projects conducted within Decatur city limits. Despite Decatur’s several enumerations of error, the dispositive issue on appeal is whether a county government is exempt from all municipal regulation of construction projects undertaken by the county with respect to county-owned property located within the city and used for governmental purposes. We hold that county government building projects are not subject to city zoning regulations, but that they are subject to other municipal regulation (as indicated by the Georgia legislature). Accordingly, we reverse the trial court’s order to the extent that it exempts the county from all municipal building regulations beyond zoning regulations.

The record reveals that DeKalb County owns certain property located within the city of Decatur. DeKalb decided to use its property to build the new DeKalb County courthouse and renovate an existing building used for governmental purposes. In the past, DeKalb County had applied for building and other permits from Decatur to commence construction within the city limits. This time, however, DeKalb County accepted a bid from a contractor to commence construction on the courthouse before obtaining permits from Decatur and further did not apply for city permits relating to renovations on another DeKalb County government building.

Reacting to threats from Decatur that it would seek to enforce its zoning and building ordinances against DeKalb, DeKalb filed a verified complaint seeking a declaratory judgment and injunctive relief to enjoin Decatur from enforcing these ordinances with respect to DeKalb’s governmental building construction projects. The trial court held a hearing on the matter, and at the hearing DeKalb County presented its brief, verified complaint, and legal arguments, but did not present any additional evidence, nor did it introduce the actual ordinances in question into evidence. Reasoning that (1) all of the ordinances that would necessarily apply to the construction projects (i.e., building codes for plumbing, electrical, heating and air conditioning, sanitary sewer, storm water drainage, etc.) fell under the broad category of “zoning,” and (2) counties have already been exempted from municipal zoning regulation of property owned by the county and used for a governmental purpose, the court concluded that “as a general rule . . . , municipal ordinances do not control county construction, where the county is performing an essential function of government such as the construction, remodeling or modification of a courthouse or court facilities.” The court entered a declaratory judgment in favor of DeKalb and permanently enjoined Decatur from enforcing its zoning and building ordinances with respect to the DeKalb County courthouse and other government building projects. Decatur appeals.

1. Decatur argues that the trial court erred by ruling that Decatur was without jurisdiction to apply or enforce any of its municipal ordinances to property of DeKalb County located within the city and used for governmental purposes. We agree that the trial court erred, but only in part.

The Supreme Court of Georgia has held that county-owned property that is used for governmental purposes is not subject to municipal zoning regulations. Macon Assn. for Retarded Citizens v. Macon-Bibb County Planning &c. Comm., 252 Ga. 484, 489 (4) (314 SE2d 218) (1984). Thus, the trial court did not err by concluding that the DeKalb County courthouse and the other county building at issue were not subject to Decatur zoning requirements. However, we find that the trial court did err by concluding that all other municipal building regulations fell under the broad category of zoning and therefore were unenforceable with respect to the DeKalb County construction as well.

“Zoning” means the power of local governments to provide within their respective territorial boundaries for the zoning or districting of property for various uses and the prohibition of other or different uses within such zones or districts and for the regulation of development and the improvement of real estate within such zones or districts in accordance with the uses of property for which such zones or districts were established.

OCGA § 36-66-3 (3). Thus, “ ‘zoning ordinances’ are those which regulate by classifying property into separate districts.” (Citation and punctuation omitted.) Fairfax MK, Inc. v. City of Clarkston, 274 Ga. 520, 521 (1) (555 SE2d 722) (2001).

“[Z]oning is to be distinguished from other regulations with which a developer must comply, such as requirements for a building permit. Each type of regulation is independent of the other and seeks to accomplish its purpose by a different means.” (Citations and punctuation omitted.) Fairfax MK, supra, 274 Ga. at 520 (1). Even under the Georgia Constitution, municipal powers relating to “zoning” are included in an entirely separate section from supplementary municipal powers relating to the enforcement of “Modes, including building, housing, plumbing, and electrical codes” and those involving “[s]torm water and sewage collection and disposal systems.” Ga. Const, of 1983, Art. IX, Sec. II, Par. Ill (a) (6), (12) (supplementary powers); Ga. Const, of 1983, Art. IX, Sec. II, Par. IV (zoning power). Indeed, unless otherwise provided by law, a county is barred from enforcing its supplementary powers within a municipality, as a municipality is imbued with the task of enforcing its supplementary powers within its own boundaries. Ga. Const, of 1983, Art. IX, Sec. II, Par. Ill (b) (1).

DeKalb County concedes that the legislature may have intended for municipalities to have the power to enforce fire safety standards with respect to county-owned property located within the municipality and used for governmental purposes. OCGA § 25-2-12 (a) (2) provides that “every [municipality with a population of 45,000 or more] shall be responsible for enforcing [state] fire safety standards within its jurisdiction. . . .” See OCGA § 25-2-12 (a) (1). The only buildings excepted from this municipal enforcement are “hospitals, nursing homes, jails, ambulatory health care centers, . . . penal institutions [,] and . . . buildings and structures which are owned and operated ... by the state. . . .” (Emphasis supplied.) OCGA § 25-2-12 (a) (2). Although DeKalb volunteered below to comply with these codes, under the trial court’s order, the county would not be required to comply with such city fire ordinances. According to state statutory law, volunteering to comply was not the county’s choice to make, as this is an area within which the legislature has indicated that municipalities have authority to regulate the building activities of counties. See Crews v. Roger Wahl, C.P.A., PC., 238 Ga. App. 892, 896 (2) (520 SE2d 727) (1999) (in matters of statutory construction, “expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those omitted were intended to be excluded) . . .”) (citation omitted).

Other areas of municipal regulation that may necessarily come into play, particularly with respect to the DeKalb courthouse construction, also indicate a legislative intent for a municipality to have some regulatory powers over such construction. Georgia’s Erosion and Sedimentation Act (OCGA § 12-7-1 et seq.) requires that municipalities “adopt. . . comprehensive ordinance [s] establishing the procedures governing land-disturbing activities which are conducted within their . . . boundaries.” OCGA § 12-7-4. The construction of a courthouse would seem to necessarily involve excavation and moving of land that would implicate the statute. Under the Act, the only county construction projects that are expressly exempted from some of the statutory requirements are “any road construction or maintenance project, or both, undertaken by any county. . . .” OCGA § 12-7-17 (9). As such an exception clearly does not apply to the DeKalb courthouse construction or other county government building construction, we find that this is yet another area where the legislature has expressed an intent for municipalities to have some authority to regulate the building activities associated with county construction within its boundaries. See Crews, supra, 238 Ga. App. at 896 (2). The trial court therefore erred in concluding that DeKalb was not subject to regulation through any Decatur ordinances.

We note that to the extent that DeKalb County may have sought below to be exempt from the substantive requirements of the Decatur building ordinances, we cannot consider any such challenge here because DeKalb never introduced these ordinances into evidence and we cannot take judicial notice of them. Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d 176) (1996).

We highly recommend that the parties confer immediately on the issue of the Decatur city ordinances with which DeKalb County must comply with respect to the ongoing DeKalb courthouse construction. The purpose of the statute as enacted by the Georgia legislature was to encourage county and city officials to work cooperatively in resolving issues of regional planning. See, e.g., OCGA § 50-8-30. Through more cooperative efforts, the counties and cities may in the future be able to avoid the very types of lawsuits generated by the events of this case.

Decided June 20, 2002

Wilson, Morton & Downs, Bryan A. Downs, Justin H. Hayes, for appellant.

Charles G. Hicks, Joan F. Roach, Jeffrey L. Mann, William J. Linkous III, for appellee.

2. In light of our holding in Division 1, we need not address Decatur’s remaining enumerations.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Johnson, P. J., concur.

       Land-disturbing activities include those activities that may result in soil erosion from wind or water “and the movement of sediments into state water or onto lands within the state, including, but not limited to, clearing, dredging, grading, excavating, transporting, and filling of land. . . .” OCGA § 12-7-3 (10). For purposes of the Act, “state waters” include “any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, and other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state, which are not entirely confined and retained completely upon the property of a single individual. . . .” OCGA § 12-7-3 (14).


author: Smith, Presiding Judge.

text:
    A02A0633.
    SALAZAR v. THE STATE.
    (567 SE2d 706)
   Smith, Presiding Judge.

After a bench trial in which he appeared pro se, Martin Salazar was convicted of speeding in excess of the posted limit and speeding 55 mph in a 35-mph zone. He appeals, again pro se, filing a brief which he acknowledges does not conform to the rules of this court. Finding no error, we affirm.

While throughout his briefs Salazar requests that “this Court be lenient to the responses and format in such that the Appellant is Pro Se,” the rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as Salazar’s fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address Salazar’s arguments, insofar as we are able to ascertain them from his brief.

1. In what appears to be an assertion of the general grounds, Salazar complains that the testimony of the investigating officers was contradictory and that the “consistency” of his own testimony made it superior to that of the officers. A substantial portion of his brief is spent laying out the alleged contradictions and conflicts in the officers’ testimony. But

[i]n a bench trial, the court sits as trier of fact and his findings shall not be set aside unless clearly erroneous. The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them. On appeal, this Court does not weigh the evidence or determine the credibility of the witnesses, but looks only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.

(Citations and punctuation omitted.) Keenum v. State, 248 Ga. App. 474, 476 (4) (546 SE2d 288) (2001). Moreover, the trier of fact “has unlimited discretion to accept or reject a defendant’s testimony as a whole, or to accept it in part and reject it in part. [Cit.]” Johnson v. State, 236 Ga. App. 61, 63 (1) (510 SE2d 918) (1999). We cannot say that the trial court’s decision to believe the testimony of the officers in preference to that of Salazar was clearly erroneous, nor can we say that there is no evidence to sustain the decision to find Salazar guilty of speeding. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. So far as we are able to determine, Salazar’s brief contains 35 enumerations of error. But the remainder of his brief does not follow the form or sequence of argument required by Court of Appeals Rule 27 (c), and he does not address most of the enumerations of error at any point in his argument. The argument itself appears to be limited to Salazar’s complaints, based upon a number of alleged reasons, regarding admission of the speed measurement obtained by one of the investigating officers with a radar device.

But we need not reach these issues, because the evidence obtained by the radar device is merely cumulative. The officer also testified that he was trained in the estimation of automobile speed, that he observed Salazar for a period of time before activating the radar, and that in his opinion Salazar was exceeding the speed limit and was traveling approximately 55 mph in a 35-mph zone. Assuming without deciding that any of Salazar’s arguments concerning the radar device have merit, the admission of the radar results would be harmless in this case because they were merely cumulative of the officer’s visual estimation of Salazar’s speed and therefore do not require reversal of the conviction for speeding. Smith v. State, 250 Ga. App. 583, 587-588 (2) (552 SE2d 528) (2001).

3. The only other aspect of the enumerations of error mentioned in Salazar’s argument is his contention, made in a number of his enumerations of error, that the trial court acted improperly during the trial. He contends the trial court was “intervening for the State.” His enumerations of error shed some light on this general contention: Salazar appears to claim that the trial court did not allow him to cross-examine witnesses, testified on behalf of the State, and refused to allow him to present exhibits and testimony. These allegations are without merit. We have carefully reviewed the transcript of the trial, and it appears that the trial court properly conducted the proceedings throughout. The court explicitly instructed Salazar regarding his right to cross-examination, and Salazar cross-examined and recross-examined the police officer who was the sole witness for the State. The court did limit Salazar’s inquiry regarding other citations and cases that the officer had investigated on the ground of lack of relevance, and Salazar agreed with that limitation. At one point, when Salazar requested assistance from the court in formulating a question regarding the radar, the court assisted him and permitted him to continue questioning the witness. The court asked several questions of the witness in attempting to clarify the issue. When Salazar testified on his own behalf, the trial court gave him some preparatory instructions and then permitted him to “tell me about this incident” in lengthy narrative form without interruption. At one point, the trial court instructed the solicitor-general not to argue with Salazar during cross-examination.

The trial judge has the right to propound a question or a series of questions to any witness for the purpose of developing fully the truth of the case; and the extent to which the examination conducted by the court shall go is a matter within his discretion. The questioning of this witness by the trial court was not an abuse of discretion, and not error.

(Citations and punctuation omitted.) Wilson v. State, 257 Ga. 444, 446 (2) (359 SE2d 891) (1987). The exhibits which Salazar attempted to present were his handwritten notes duplicating his own testimony at trial and were properly excluded under the “continuing witness rule.” See generally Tibbs v. Tibbs, 257 Ga. 370-371 (359 SE2d 674) (1987). Moreover, Salazar failed to object to any of the allegedly improper conduct at trial and therefore is estopped from raising an objection on appeal. Cook v. State, 270 Ga. 820, 829 (6) (514 SE2d 657) (1999).

Decided June 20, 2002.

Martin F. Salazar, pro se.

Sheryl B. Jolly, Solicitor-General, Katherine M. Mason, Assistant Solicitor-General, for appellee.

4. We also note that Salazar failed to cite authority or present argument with respect to most of his 35 enumerations of error. They are thus deemed abandoned under Court of Appeals Rule 27 (c) (2). In addition, Salazar failed to object at trial to many of the rulings and actions of which he now complains. Failure to object to the admission of evidence at trial waives the right to raise the issue on appeal. See, e.g., Anthony v. State, 236 Ga. App. 257, 259 (2) (511 SE2d 612) (1999). Salazar’s pro se status did not excuse him from his duty to object to error during the trial. He “ ‘is not held to a different or more lenient standard in this regard merely because he elected to proceed pro se. One who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law.’ [Cit.]” Quinn v. State, 253 Ga. App. 570, 573 (2) (560 SE2d 58) (2002).

Finally, Salazar contends that he was unable to object because he “felt he was in a hostile environment” and that the trial court had “little, to no patience with the appellant or his questions of the State and its witnesses.” As in Carter v. State, 231 Ga. App. 42, 43 (4) (497 SE2d 812) (1998), we have reviewed the record in this case for any indication of a “hostile environment” or intimidation by the court. The trial court simply engaged in “appropriate attempts to require appellant to comply with rules of evidence and procedure, which task appellant willingly undertook when he decided to represent himself.” Id. “ ‘The trial judge has broad discretion in handling these matters and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness.’ [Cit.]” Gilbert v. State, 208 Ga. App. 258, 265 (5) (430 SE2d 391) (1993). We find no abuse of that discretion here.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       Salazar’s earlier appeal, Case No. A02A0144, was remanded after he failed to request that a transcript of the trial be included in the record.


author: Eldridge, Judge.

text:
    A02A1628.
    COX v. ALLEN.
    (567 SE2d 363)
   Eldridge, Judge.

On May 21, 2001, judgment was entered for the defendant, Evelyn House Allen, and against the plaintiff, Jamie R. Cox, on her personal injury action, which was tried to a verdict. Finding no error of law, we affirm.

On May 27, 1999, Allen was driving in a southerly direction on Tift County Road 424, a dirt road, and approached the stop sign for the intersection of County Road 159, a paved road. Allen turned left onto Road 159 in an easterly direction and brought her Cadillac four-door sedan to a momentary stop diagonally across the road after entering the intersection. Cox was driving westerly on Road 159, approaching the intersection. When Cox was several hundred feet from the intersection, Allen made a left turn in front of her and stopped momentarily diagonally across her path. Cox swerved onto the other side of the road into the eastbound lane and braked. Allen completed her turn into the eastbound lane; the vehicles collided head-on. Allen received a traffic citation for failure to yield the right-of-way and entered a plea of guilty to this charge. Cox filed this personal injury action.

At the trial of the case, John J. Tyson was called by the defense and qualified as an expert witness, a law enforcement officer. Over objection, he testified that although he had neither investigated the collision nor visited the collision scene, his opinion was that Cox was driving too fast, skidded straight down the road into the path of Allen, and collided with her in the eastbound lane. Cox made timely exceptions to the failure of the trial court to give her requests to charge on OCGA §§ 40-6-202 and 40-6-390 (a) and significance of a plea of guilty to a traffic citation.

1. Cox contends that the trial court erred in failing to give her request to charge on OCGA § 40-6-390 (a), reckless driving. We do not agree.

Request to Charge No. 7 was not given, which read:

I charge you, members of the jury, that Section 40-6-390 (a) of the Official Code of Georgia, which was in full force and effect on the day and at the time and place of the incident giving rise to this suit, provides in pertinent part as follows: (a) Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving. In this connection, I charge you that if you find, as contended by the plaintiff, that the defendant violated this Code section, this would constitute negligence as a matter of law on the part of said defendant.

In this request to charge, the charge itself did not define the specific conduct that constituted reckless disregard for the safety of persons or property or point to specific conduct that was reckless under the facts and circumstances of this case. “However, as defined in OCGA § 40-6-390 (a), reckless driving requires proof of a specific act which evidences a ‘reckless disregard for the safety of persons or property. . . .’ ” (Emphasis omitted.) Kirkland v. State, 206 Ga. App. 27, 33 (17) (424 SE2d 638) (1992). See Whiteley v. State, 188 Ga. App. 129,132-133 (5) (372 SE2d 296) (1988) (OCGA § 40-6-390 (a) requires the specific reckless conduct to be alleged as an essential element of reckless driving). Thus, the written charge as submitted was an incomplete statement of the law. Id. at 132-133.

A request to charge must be correct and complete for the trial court to give it. Gates v. Southern R. Co., 118 Ga. App. 201, 204 (3) (a) (162 SE2d 893) (1968). Thus, the trial court did not err in refusing to give an incomplete request to charge.

2. Cox contends that the trial court erred in not giving her Request to Charge No. 6, regarding OCGA § 40-6-202 and dealing with stopping and obstructing the free passage of vehicles on the highway. We do not agree.

Cox’s Request to Charge No. 6 read:

I charge you members of the jury, that § 40-6-202 of the Official Code of Georgia, which was of full force and effect on the day and at the time and place the incident giving rise to this suit, provides in pertinent part as follows: “Outside of a business or residential district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park, or so leave such vehicle off the roadway; but in every event, an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicles — shall be available from a distance of 200 feet in each direction upon the highway.” In this connection, I charge you that should you find as contended by the plaintiff that the defendant Allen violated this code section, this would constitute negligence as a matter of law on the part of said defendant.

This Code section, OCGA § 40-6-202, does not apply to a momentary stopping of a motor vehicle on the highway but applies to situations where the stopping or parking impedes the safe flow of traffic. Stroud v. Doolittle, 213 Ga. 32, 37 (2) (96 SE2d 876) (1957) (does not apply to a stopped school bus discharging children because all traffic required to stop). Such statute does not apply when a vehicle is forced to a stop for mechanical reasons or in an emergency. Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 883 (6) (311 SE2d 193) (1983) (lowboy trailer stuck across both lanes of traffic in attempt to make a U-turn). “[Allen] was [not] stopped, standing or parked as contemplated by the statute, which obviously refers to bringing a vehicle to a halt in a moving lane of traffic rather than to an emergency situation such as the one here.” Id.

Under the facts and circumstances of this case, Allen’s vehicle momentarily came to a stop diagonally across the road after partially making her left turn in front of the plaintiff and then completed her turn into the eastbound lane prior to the collision. Under such circumstances, this Code section has no application, because it was not adjusted to the evidence. See Reliance Ins. Co. v. Bridges, supra at 883. “An instruction as to law on a material issue [ ] unauthorized by the evidence is improper.” (Citation and punctuation omitted.) Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853, 854 (2) (334 SE2d 888) (1985).

3. Cox contends that the trial court erred in failing to give her Request to Charge No. 17, regarding the significance of a guilty plea by Allen to a traffic violation. We do not agree.

Request to Charge No. 17 reads: “I charge you that a defendant who is cited for a traffic violation and enters a plea of guilty to said traffic violation, such guilty plea is an admission against interest by the defendant and is evidence of the negligent conduct of the defendant.” Request to Charge No. 17 cited as authority for such charge the case of Gaddis v. Skelton, 226 Ga. App. 325, 326 (486 SE2d 630) (1997); however, Cox did not give the charge approved in that opinion “as a correct statement of the law.” Id. at 327. The complete and correct statement of the law given in that case was

[u]nder Georgia law, in a civil action such as this, evidence that the defendant pled guilty to a traffic charge in a prior proceeding is admissible in evidence and may be considered by you along with all the other evidence as a circumstance to be weighed by you. . . . Simply because the defendant pled guilty to a traffic charge is not conclusive on the issue of whether or not she in fact violated the traffic laws or was negligent, nor does it preclude her from introducing evidence as to the reasons for entering such a plea.

(Punctuation omitted.) Id. at 326. Where a request to charge is not a complete statement of the law, it is not error for the trial court to refuse to give it to the jury in charge. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Citations and punctuation omitted; emphasis in original.) Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267) (1991).

4. Cox contends that the trial court erred in allowing an expert witness to give his opinion of speed based upon hypothetical facts which were not in evidence. We do not agree.

Lieutenant Tyson, Tifton Police Department, was qualified as an expert by completing the Regional Academy; 17 years of traffic accident investigation; levels I and II of accident investigation and courses in technical, vehicle homicide, and accident reconstruction at the Public Safety Training Center; and work as an expert witness in 20 civil cases. Personally, he had investigated between 3,000 and 5,000 accidents.

Tyson considered that Cox’s 1995 Hyundai Elantra left 105 feet of skid marks, that Allen’s Cadillac was stopped or going at no more than three mph at impact, and that the photographs of the damaged vehicles were accurate. He further considered Cox’s deposition testimony in arriving at his expert opinion as to Cox’s speed immediately prior to impact. In his opinion, she was driving at 62 to 69 mph before she hit her brakes, and the 105 feet of skid marks indicated a speed of 48.61 mph if she had slid to a stop instead of colliding with the Cadillac.

Cox testified that Allen stopped diagonally across the intersection and that Cox swerved to her left into the oncoming lane to miss Allen. However, Cox does not recall the collision or what immediately preceded it. Cox could not say how long Allen was stopped prior to completing her left turn. But, she infers that Allen “accelerated into the east-bound lane and collided head-on” with Cox. Therefore, there is nothing but inference from the physical evidence of the damage to the front ends of the vehicles, indicating the Allen vehicle was straight in the eastbound lane at collision and indicating movement of the Allen vehicle. From such circumstantial evidence of the movement of the Allen vehicle, the jury could reasonably infer that at the time of the collision, Allen was either stopped, moving no more than three mph, or accelerating, thereby creating a jury issue which the jury resolved against Cox.

When a hypothetical question is based upon circumstantial evidence, the question of whether the circumstances were sufficiently proven to establish the fact contained in the hypothetical question and whether such fact was essential to the opinion are issues for the jury to decide. Woodruff v. Naik, 181 Ga. App. 70 (2) (351 SE2d 233) (1986); Stoneridge Properties v. Kuper, 178 Ga. App. 409, 413-414 (2) (343 SE2d 424) (1986). Where evidence in the case allows a reasonable inference to be drawn by the expert witness, the expert may render an opinion for the jury to weigh. Lawhorne v. Soltis, 259 Ga. 502, 504 (2) (384 SE2d 662) (1989); Horney v. Lawrence, 189 Ga. App. 376, 377 (1) (375 SE2d 629) (1988). Circumstantial evidence as part of the hypothetical does not go to the viability of the hypothetical; whether there was insufficient knowledge upon which the expert could render his opinion goes not to the admissibility of the opinion but to the weight and credibility of the witness as determined by the jury. APAC-Ga., Inc. v. Padgett, 193 Ga. App. 706, 710 (2) (388 SE2d 900) (1989); Hyles v. Cockrill, 169 Ga. App. 132, 136-137 (8) (312 SE2d 124) (1983), overruled on other grounds, Ketchup v. Howard, 247 Ga. App. 54 (543 SE2d 371) (2000). However, this is not a case where the hypothetical is based upon circumstantial evidence alone; if the hypothetical were based on circumstantial evidence alone to prove an essential fact of the hypothetical, then the jury may consider the opinion to the hypothetical only if the jury first determines that the fact assumed has been satisfactorily established for them. Warmack v. Mini-Skools Ltd., 164 Ga. App. 737, 738 (1) (297 SE2d 365) (1982); Bowers v. State, 153 Ga. App. 894, 895 (1) (267 SE2d 309) (1980); Travelers Ins. Co. v. Hutchens, 106 Ga. App. 631, 632-633 (127 SE2d 712) (1962).

Decided June 20, 2002.

Jay, Sherrell, Smith & Braddy, Robert E. Sherrell, for appellant.

Reinhardt, Whitley, Wilmot & Summerlin, Glenn Whitley, for appellee.

If an expert’s opinion is, in fact, based in part upon a fact not in evidence, although in the hypothetical, then the lack of evidence of such fact goes to the weight of the opinion and not to its admissibility. In the Interest of M. C. J., 242 Ga. App. 852, 857-858 (3) (531 SE2d 404) (2000). Thus, the sufficiency of the facts to support an opinion goes to the weight of the opinion and not to its admissibility. Bibb County v. Higgins, 241 Ga. App. 161, 162-163 (1) (526 SE2d 379) (1999); MARTA v. Green Intl., 235 Ga. App. 419, 422 (1) (509 SE2d 674) (1998).

Thus, the trial court did not err in allowing the jury to determine what weight and credibility to give to the opinion of the expert witness as to speed based upon disputed and circumstantial evidence.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.


text:
    A02A0406.
    MOORE & MOORE PLUMBING, INC. v. TRI-SOUTH CONTRACTORS, INC.
    (567 SE2d 697)
   Miller, Judge.

Moore & Moore Plumbing, Inc. appeals from the trial court’s order compelling arbitration pursuant to a contract between Moore and Tri-South Contractors, Inc. On appeal Moore contends that the trial court erred by (1) ordering the parties to comply with the arbitration clause in the contract and (2) dismissing the case without prejudice after ordering the parties to submit to arbitration. We discern no error and affirm.

The record reveals that Tri-South, a general contractor, entered a subcontract agreement with Moore for the construction of several apartments. Under the agreement, Moore was responsible for, among other things, providing “all labor and materials necessary to install [a] complete plumbing system for 208 apartment units, clubhouse, trash compactor, and maintenance facility/car wash.” The agreement also provided several options to Tri-South in the event that it was not satisfied with Moore’s work:

If in the opinion of the Contractor, the Subcontractor neglects or fails to supply a sufficient number of workmen of the proper skill, or materials of the proper quality, or fails in any respect to prosecute the work required by this Agreement with promptness and diligence, or the work of the Subcontractor is not executed in accordance with plans and specifications, or is such as to interfere with or delay the work of the Contractor or other Subcontractors, and Subcontractor fails to remedy . . . such conditions within 24 hours after the posting of a written notice by registered mail or dispatch of telegram (any such notice to be effective as [sic] the time of posting or delivery to the telegraph company) directed to [the Subcontractor’s address] specifying such of the foregoing as is applicable, the Subcontractor authorizes the Contractor as follows: (a) To use any of Subcontractor’s equipment and to consume any materials on the job until it is completed, (b) To complete the job, and procure such equipment, labor and material as is necessary therefore [sic], and Subcontractor agrees to pay the cost of same plus 15% of such cost to compensate General Contractor for overhead and profit, (c) To withhold any monies which may be due Subcontractor for work or labor in connection with this job or any other job for which Subcontractor may be furnishing labor and material, and at Contractor’s election such monies shall be forfeited as liquidated damages for such default, (d) To contract with others for the completion, either in whole or in part of such work as [sic] Subcontractor’s cost and expense.

(Bold in original.)

There was also an arbitration provision in the contract:

In the event that the parties are unable to settle any dispute, relating to their rights under this Contract, which is not otherwise provided for herein, the Contractor and the Subcontractor shall each appoint one arbitrator and those arbitrators shall elect a third arbitrator, and the decision of such arbitrators as to any matter in dispute shall be final and conclusive upon the rights of both parties. . . . The cost of any such arbitration shall be borne equally between the parties.

After being paid on its first two draw requests, Moore submitted a third draw request for over $30,000 for plumbing work that Moore had done up to June 25, 2000. This request was initially approved by Tri-South, but before Tri-South paid Moore it sent, via certified mail, a letter to Moore dated June 29, 2000. In the letter, Tri-South informed Moore that Moore was behind schedule in completing its work and that Tri-South was giving Moore the requisite 24 hours notice pursuant to the contract to remedy the deficiencies. The letter outlined the options available to Tri-South if Moore did not remedy the conditions within 24 hours, including its option to take over the job and “withhold any monies which may be due Subcontractor for work or labor in connection with this job or any other job for which Subcontractor may be furnishing labor and material. . . .”

In a second letter dated July 6, 2000, Tri-South informed Moore that Moore was still behind schedule on its work on the same building that was unfinished as of Tri-South’s June 29 letter to Moore. When Moore’s third draw request became due on July 15, Tri-South did not pay it. Tri-South then fired Moore from the job on July 25 and went on to complete the work through another subcontractor. Moore claims to have rescinded the contract at that time.

After Moore sent a letter to Tri-South requesting arbitration to resolve its dispute with Tri-South, Moore then sued Tri-South, claiming that Moore had rescinded the contract due to Tri-South’s failure to pay the third draw request. Tri-South denied that the contract had been rescinded and moved to compel arbitration. Moore argued that the arbitration clause no longer had any effect because the entire contract had been rescinded. The trial court disagreed and granted Tri-South’s motion to compel arbitration and dismissed the case without prejudice. Moore appeals from this ruling.

1. Moore argues that the trial court erred by compelling arbitration pursuant to the subcontract agreement. Moore claims that it rescinded the contract, thereby rendering the entire contract, including the arbitration provision, void. Since there is no evidence in the record upon which Moore could rescind the contract, we hold that the trial court properly compelled arbitration pursuant to the contract.

Similar to our review of the grant of summary judgment, which involves the elimination of all genuine issues of material fact, the standard of review from the grant of a motion to compel arbitration is whether the trial court was correct as a matter of law. Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713, 715 (411 SE2d 800) (1991).

In addition, the construction of a contract is a question of law for the court that is subject to de novo review. Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000). Where contract language is unambiguous, construction is unnecessary and the court simply enforces the contract according to its clear terms. Caswell v. Anderson, 241 Ga. App. 703 (527 SE2d 582) (2000).

The contract at issue here clearly states that Tri-South was only required to give Moore notice via certified mail of its opinion that the subcontract work was not being completed with promptness and diligence. Moore then had 24 hours to remedy the deficiencies before TriSouth could exercise its other rights under the contract, which included completing the work through a different subcontractor and withholding payment for other work that Moore had completed. It is undisputed that Tri-South sent a notice to Moore via certified mail outlining the deficiencies in Moore’s work and stating that Moore was behind schedule. The deficiencies were not corrected within 24 hours, as evidenced by the second letter sent to Moore several days later, which concerned untimely performance relating to the work being done on the same building mentioned in the first letter. TriSouth was then entitled to complete the work through another subcontractor and withhold further payment to Moore.

Since there is no evidence that Tri-South operated outside of the express terms of the contract when it notified Moore of the problems with the work, withheld money from Moore, and completed the work through another subcontractor, there was no basis for Moore to rescind the contract. See Sinclair Refining Co. v. Davis, 47 Ga. App. 601 (1) (171 SE 150) (1933) (in order to authorize a rescission of a contract without consent of the opposite party, the opposite party must “breach [the] contract as to a matter so substantial and fundamental as to defeat the object of the contract . . .”) (emphasis supplied); see also OCGA § 13-4-62; Lanier Home Center v. Underwood, 252 Ga. App. 745, 746 (1) (557 SE2d 76) (2001). Thus, the contract was not rendered void, and the trial court properly compelled arbitration pursuant to the terms of the contract. See Saturna v. Bickley Constr. Co., 252 Ga. App. 140, 142 (555 SE2d 825) (2001) (trial court properly compelled arbitration where parties expressed clear intent to arbitrate through valid arbitration provision).

Decided June 7, 2002

Reconsideration denied June 21, 2002.

Wood & Perry, Jere F. Wood, for appellant.

Webb, Tanner & Powell, Robert J. Wilson, for appellee.

2. Moore further contends that the trial court erred by dismissing the case without prejudice after ordering the parties to submit to arbitration. However, when all of the issues in the underlying suit are compelled to arbitration and there is nothing left for the trial court to resolve, as was the case here, it is not error for the trial court to dismiss the suit with prejudice rather than grant a stay, let alone to merely dismiss the case without prejudice. See Simmons Co. v. Deutsche Financial Svcs. Corp., 243 Ga. App. 85, 90 (2) (532 SE2d 436) (2000). We discern no error here.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.

       We make no ruling here as to the validity of the clause stating that the withheld monies could be considered as “liquidated damages,” because that issue has not been raised by the parties here.


author: Pope, Presiding Judge.

text:
    A02A0003.
    BEAMAN v. CITY OF PEACHTREE CITY.
    (567 SE2d 715)
   Pope, Presiding Judge.

Allison Beaman was arrested for underage possession of alcohol and was issued a uniform traffic citation. During Beaman’s trial in the Municipal Court of Peachtree City, she moved to quash the use of the UTC, asserting that the citation was not a valid charging instrument for a nontraffic offense. The municipal court denied Beaman’s motion, and she was convicted of the offense. She then applied to the superior court for certiorari, and that court affirmed the ruling. We granted Beaman’s application for discretionary appeal, and for reasons that follow, we affirm.

In the recent case of Shaver v. City of Peachtree City, 253 Ga. App. 212 (558 SE2d 409) (2001), cert. granted, Case No. S02G0702 (June 11, 2002), this Court addressed almost identical facts. In that case this Court held that because no law authorizes the use of a UTC as a charging instrument for trying a defendant for the misdemeanor offense of underage possession of alcohol, the Municipal Court of Peachtree City was without jurisdiction of the matter. Id. at 214. But Shaver and Beaman were not charged with the same offense. Shaver was charged with possession of alcohol by a minor in violation of a state law, OCGA § 3-3-23. Beaman was charged with a similar offense in violation of a municipal ordinance, Peachtree City Code § 6-109 (b).

We note that the legislature has very recently amended Article 1 of Chapter 32 of Title 36 by inserting a new Code section to address this problem. On May 9, 2002, the Governor signed into law a bill that added OCGA § 36-32-10.2, which states, “Notwithstanding any other contrary provision of law, in municipal courts which have jurisdiction over misdemeanor offenses or ordinance violations, such offenses or violations may be tried upon a uniform traffic citation, summons, citation, or an accusation.” Ga. L. 2002, pp. 627-628, § 1 (Act 775; HB 1169). Nevertheless, Beaman was arrested in June 2000 and tried and convicted in October of that year. Therefore, we will address whether prior to the recent amendment, a UTC could function as a valid charging instrument in municipal court for the violation of a municipal ordinance regulating underage possession of alcohol.

Prior to the recent change, state law was silent on the proper charging instrument for violations of municipal ordinances. Under this circumstance, a municipality may adopt a reasonable ordinance on the matter provided it is not inconsistent with the constitution or any applicable charter provision. OCGA § 36-35-3 (a).

Peachtree City has adopted an ordinance that provides that “Officers may issue citations ... to any defendant who is a resident of the county. . . .” Peachtree City Code § 46-51. According to the record before us, the term “citations” is not defined in the ordinances. The term “citation” is defined by Black’s Law Dictionary (5th ed.), as follows:

A writ issued out of a court of competent jurisdiction, commanding a person therein named to appear on the day named and do something therein mentioned, or show cause why he should not. An order, issued by the police, to appear before a magistrate or judge at a later date. Usually used for minor violations (e.g. traffic violations); avoids need to take suspect into immediate physical custody.

In contrast, an accusation requires the signature of a prosecuting attorney. OCGA § 17-7-71 (a).

The use of a “citation” defined as “an order, issued by the police, to appear before a magistrate or judge at a later date” for the violation of a municipal ordinance is consistent with the Georgia Constitution. See Pearson v. Wimbish, 124 Ga. 701, 709-711 (3) (52 SE 751) (1906).

In Pearson, a person accused of a violation of a municipal ordinance was tried without receiving any written charge, information or accusation concerning the charges brought against him. Pearson, 124 Ga. at 710 (3). The Supreme Court first determined that no formal accusation or indictment is required to prosecute the violation of a municipal ordinance. Although the Georgia Constitution at the time provided that “[e]very person charged with an offense against the laws of this State . . . shall be furnished, on demand, with a copy of the accusation . . . ,” under Georgia law a violation of a municipal ordinance is not an offense against the laws of this state, although it might be considered criminal in nature. Pearson, 124 Ga. at 706-708 (1), (2). Therefore the constitutional requirement of an accusation did not apply to those who violated municipal ordinances.

The current constitution has virtually the same language. It provides that “ [e]very person charged with an offense against the laws of this state . . . shall be furnished with a copy of the accusation or indictment. . . .” Ga. Const, of 1983, Art. I, Sec. I, Par. XIV. And, violations of municipal ordinances are still not considered to be violations of the criminal laws of this state as used therein. See OCGA § 16-2-1 (“A ‘crime’ is a violation of a statute of this state. . . .”); Turner v. State, 233 Ga. 538 (212 SE2d 370) (1975) (only violations of state statutes, and not of municipal ordinances and administrative regulations, are crimes). Compare City of Lilburn v. Sanchez, 268 Ga. 520, 521 (1) (491 SE2d 353) (1997) (referring to an ordinance regulating pigs within the city as a “criminal” ordinance). It follows that Beaman had no constitutionally guaranteed right to an indictment or accusation. Pearson, 124 Ga. at 709-711 (3).

Pearson also held that the use of a simple summons as a charging instrument is consistent with the due process clause of the Georgia Constitution and the United States Constitution. The Supreme Court explained that the trial of a violation of a municipal ordinance, a petty offense, is the equivalent of a trial at common law and that all the common law required was a summons to appear. Id. Therefore, even though Pearson had received no written charge whatsoever, there was no violation of the due process guarantee of either constitution. Id. at 711 (3).

The UTC issued to Beaman satisfied all of the requirements of the summons in Pearson. It identified Beaman as the offender; identified the time, date, and location of the incident; identified the time and date that Beaman had to appear before the Peachtree Municipal Court; identified the charge against her and specifically cited the ordinance; was signed and dated by the arresting officer; and included the officer’s attestation that Beaman had in fact committed the offense. The information written on the UTC was easily sufficient to constitute a valid order or citation, issued by police, to appear before a judge at a later date.

Decided June 21,2002.

Saia, Richardson & Meinken, Joseph J. Saia, Lloyd W. Walker, for appellant.

Webh, Lindsey, Collins, Jones & Wade, Richard P. Lindsey, Martin C. Jones, Christy R. Jindra, for appellee.

The mere fact that the information was written on a UTC does not invalidate the otherwise valid citation. At least with regard to violations of municipal ordinances, Peachtree City is not purporting to use the full power normally associated with a UTC. The UTC functions as the “citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged. . . .” OCGA § 40-13-1. Therefore, when prosecuting a state traffic offense, certain formalities such as the prosecuting attorney’s signature are not required. See generally Evans v. State, 168 Ga. App. 716, 717 (310 SE2d 3) (1983). But in municipal court, where an accusation is not required, this function of the UTC is simply inapplicable.

Lastly, we note that our holding here is not inconsistent with the recent holding in Shaver v. City of Peachtree City. Shaver is distinguishable for at least two reasons. Shaver was charged with a violation of a state statute, not a municipal ordinance, and the decision in that case relied on OCGA § 17-7-71 (b) (1), which applies only to “all misdemeanor cases arising out of violations of the laws of this state.” Accordingly, as shown above, it does not apply to violations of municipal ordinances.

We conclude that the UTC issued to Beaman functioned as a valid summons or citation requiring her to appear in court and answer the charge against her.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

       Beaman does not argue that any charter provision limits the city’s authority to define a charging instrument.

       This Court does not take judicial notice of municipal ordinances. Rather, “[t]he proper method of proving a city ordinance is by production of the original or of a properly certified copy. [Cit.]” Police Benevolent Assn. &c. v. Brown, 268 Ga. 26, 27 (2) (486 SE2d 28) (1997).


text:
    A02A0258.
    MOODY v. THE STATE.
    (567 SE2d 709)
   Phipps, Judge.

Stuart Lee Moody was convicted in the State Court of DeKalb County of speeding, driving under the influence of alcohol to the extent that it was less safe for him to drive, and driving with an unlawful blood alcohol concentration. He contends that his convictions are void because jurisdiction was not proper in that court. Because the record demonstrates otherwise, we affirm.

On November 7, 1999, Moody was issued several uniform traffic citations, charging him with violating various state laws in Doraville and ordering him to answer the charges in the Municipal Court of Doraville. The record reflects that Moody demanded a jury trial, and his case was bound over to state court, where an accusation charged him with driving under the influence of alcohol to the extent that it was less safe for him to drive, driving while having an unlawful blood alcohol concentration, and two counts of speeding.

Moody filed a motion to quash the accusation, wherein he claimed that he had waived his right to a jury trial in the municipal court and that jurisdiction was improper in the state court. A judge, sitting by designation of the state court, considered Moody’s motion and transferred his case back to municipal court “to ensure that proper procedures have been and will be followed in the bindover of this case.”

About a week later, however, Judge Carriere of the state court ordered the parties to appear for a hearing on the issue of whether there was authority supporting the transfer back to municipal court. At the hearing, Judge Carriere informed the parties that he had “talked with [the municipal court judge] to see if he was aware of authority or if he wanted the case to come back to Doraville. [The municipal court judge] has no interest in it one way or the other [and] would do whatever an order required to be done.” Judge Carriere further informed the parties that he had talked with the solicitor-general, who he said had stated that “[the case] had been bound over, [and it] suited him to leave it bound over.” After hearing argument, Judge Carriere determined that the transfer was not authorized and announced that the transfer order would be set aside as improvidently entered. He then stated, “As a result of having talked with [the municipal court judge] and also [the solicitor-general], though not about the substance of the case, if you wish for me to recuse myself on it because of that communication, I will be happy to do so.”

At Moody’s request, the case was transferred to another judge of the state court, and a jury trial was scheduled. The record shows that on the day of trial, Moody waived his right to a trial by jury and requested a bench trial on stipulated facts. He was found guilty of all charges except one count of speeding.

On appeal, Moody contends that his convictions are void because the state court lacked jurisdiction of his case. He argues that jurisdiction was proper in the municipal court because his case had been validly transferred back to that court and that the subsequent order that set aside the transfer was void because Judge Carriere had grounds to recuse himself when he vacated the transfer order. He urges that “once grounds for voluntary recusal had been raised by the trial court on his own motion any further action on the merits of the case was prohibited pursuant to Uniform Superior Court Rule 25.3 until the issue of recusal was resolved.”

In determining the issue of disqualification, OCGA § 15-1-8 and Canon 3 (E) (1) of the Code of Judicial Conduct should be considered. Moody does not suggest that there is any basis for disqualification as set forth in OCGA § 15-1-8. Canon 3 (E) states: “Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. . . .” “The alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”

Moody filed no motion to recuse and accompanying affidavit, nor did he otherwise allege that Judge Carriere harbored any bias. He merely asserts now that Judge Carriere “presumably [had] valid grounds to recuse himself.” But even assuming that Judge Carriere’s statements at the hearing amounted to a voluntary disqualification, Uniform State Court Rule 25.7 specifically provides that if a judge voluntarily disqualifies himself, either on the motion of one of the parties or the judge’s own motion, such act shall not be construed as either an admission or denial of any alleged grounds that would support recusal.

Moreover, as Judge Carriere explained in the order forwarding Moody’s case to the chief judge of the state court for reassignment, “the Court was concerned that the parties, specifically the Defendant might believe that the Court had a particularized interest in the case. In order to obviate this misconception the Court, sua sponte, gave the State and the Defendant the opportunity to have this matter assigned to another division of the State Court of DeKalb County for trial” Notably, Moody’s trial on the merits of his criminal charges was not before Judge Garriere, but before another judge of the state court.

Decided June 21, 2002.

Virgil L. Brown & Associates, Virgil L. Brown, Larkin M. Lee, for appellant.

Moody’s case began in the municipal court, but that court was deprived of jurisdiction by his demand for a jury trial. The case was properly bound over to the state court. Moody asserts in his appellate brief that he had filed a waiver of trial by jury in the municipal court. But that assertion is not supported by citation to the record, and the record confirms that as late as the Friday preceding the Monday of his trial, his jury trial demand in state court remained pending. Although Moody waived his right to a jury trial moments before his trial began, that waiver did not deprive the state court of jurisdiction.

Moody was given the opportunity to provide authority for transferring his case back to municipal court, but could not do so. Judge Carriere correctly determined that Georgia law did not provide for such a transfer and thus vacated a nullity, insofar as the earlier order purported to transfer Moody’s case back to municipal court. While we disapprove of any departure from Uniform State Court Rule 4.1, we find that the facts and circumstances presented by this case were insufficient to call reasonably into question Judge Carriere’s impartiality on the question of whether to vacate the transfer order.

Moody has failed to show that a recusal was warranted, and the order vacating the transfer order is not void. Jurisdiction was properly within the state court.

Judgment affirmed.

Andrews, P. J., and Mikell, J, concur.

Gwendolyn R. Keyes, Solicitor-General, Rupal D. Vaishnav, Assistant Solicitor-General, for appellee.

       Moody also claimed that he had been engaging in plea negotiations in the municipal court. And in his brief to this court, Moody claims that “it was agreed that [he] would receive consideration for his plea in [municipal court].”

       When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. . . .

        Gillis v. City of Waycross, 247 Ga. App. 119 (543 SE2d 423) (2000).

       (Citation and punctuation omitted.) Id. at 120.

       See Uniform State Court Rule 25. The Uniform Rules for the superior courts are applicable in state courts unless specifically stated otherwise by the Uniform State Court Rules. See Preamble of the Uniform State Court Rules; Woody v. State, 229 Ga. App. 823, 825 (2) (494 SE2d 685) (1997).

       (Emphasis supplied.)

       See OCGA § 40-13-21 (b) (“all municipal courts are granted jurisdiction to try and dispose of misdemeanor traffic offenses arising under state law ... , if the defendant waives a jury trial. . .”); Kolker v. State, 260 Ga. 240, 244 (391 SE2d 391) (1990) (power of municipal courts to try and dispose of misdemeanor traffic offenses is conditioned upon the defendant’s waiver of his right to a jury trial).

       See Puckett v. State, 239 Ga. App. 582, 583 (1) (521 SE2d 634) (1999).

       “Except as authorized by law or by rule, judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding.” The rule violation was talking with the solicitor-general about the case.

       We also recognize that remanding this case for the purpose of requiring another judge’s determination on the question of whether to set aside the transfer order would be useless as the law would demand the same result.


text:
    A02A0271.
    JACKSON v. THE STATE.
    (567 SE2d 718)
   Pope, Presiding Judge.

Alton D. Jackson appeals the denial of his motion for an out-of-time appeal of his convictions, based on a guilty plea, to one count each of child molestation and statutory rape. He also appeals the denial of his motion to set aside the convictions.

1. A defendant moving for an out-of-time appeal following a conviction and sentence based on a guilty plea bears the burden of showing two things: first, that he or she actually had a right to file a timely direct appeal; and second, that the right to appeal was frustrated by the ineffective assistance of counsel. Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996).

A criminal defendant has a right to a direct appeal from a judgment of conviction and sentence entered on a guilty plea if at least one issue on appeal can be resolved by facts appearing in the record, including the transcript of his guilty plea hearing. Thorpe v. State, 253 Ga. App. 263 (558 SE2d 804) (2002). Jackson has met this test. He asserts that the trial court failed to establish on the record a factual basis for accepting the guilty plea in accordance with Uniform Superior Court Rule 33.9, which is an issue that can be resolved from the face of the record. See State v. Evans, 265 Ga. 332, 333-335 (1), (2) (454 SE2d 468) (1995); Caldwell v. State, 213 Ga. App. 531 (1) (445 SE2d 560) (1994) (physical precedent only).

With regard to ineffective assistance, Jackson claims that he asked his trial counsel to file an appeal but that his counsel failed to do so. See, e.g., Webb v. State, 254 Ga. 130, 131 (327 SE2d 224) (1985). “If [Jackson] was not responsible for his failure to file a timely notice of appeal, the trial court should have granted his motion for an out-of-time appeal.” Thorpe, 253 Ga. App. at 264. But here, there is no indication that the trial court in this case inquired into the truth of Jackson’s claim that his lawyer failed to follow his instructions. A trial court abuses its discretion if it fails to make a factual inquiry into the defendant’s allegations that trial counsel’s ineffective assistance deprived the defendant of his right to appeal and whether the defendant voluntarily waived that right. Id. We therefore reverse the denial of Jackson’s motion for an out-of-time appeal and remand for a hearing on this issue. Id.

2. Jackson also appeals the denial of his self-styled “Motion to Vacate Void Guilty Plea.” He claims the conviction was void. A void judgment may be attacked at any time. See OCGA § 17-9-4. But, looking at the substance of the motion rather than the name, the filing was actually a motion to withdraw a guilty plea. His motion is thus untimely because it was filed after the term of court in which the plea was entered. Thompson v. State, 274 Ga. 818 (559 SE2d 730) (2002). Accordingly, we find no error in the trial court’s denial of the motion.

Decided June 21, 2002.

Alton D. Jackson, pro se.

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Charles P. Boring, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part and case remanded with direction.

Ruffin and Barnes, JJ, concur.


text:
    A02A0337.
    COTTON STATES MUTUAL INSURANCE COMPANY v. PHILLIPS et al.
    (567 SE2d 719)
   Pope, Presiding Judge.

Cotton States Mutual Insurance Company filed a declaratory judgment action to determine whether it had a duty to defend or to provide coverage on behalf of its policyholder, Charles J. Phillips, for an accident Phillips failed to report for nearly two years. Following the denial of its motion for summary judgment, we granted Cotton States’ application for interlocutory appeal.

Most of the facts are undisputed. On September 4,1998, Phillips was driving a pickup truck that belonged to P. Singletary, his employer. Alfred Gainer, a fellow employee, was riding in the back. As Phillips was driving across a field, Gainer was thrown out of the truck and injured. Phillips did not provide notice to Cotton States, his automobile insurance company, at the time of the accident.

Nearly two years later, on August 30, 2000, Gainer filed suit against Singletary and Phillips, and, afterward, Phillips gave notice of the accident to Cotton States. Cotton States then filed this declaratory judgment action against Gainer, Singletary and Phillips.

Cotton States sought to enforce the terms of its policy, which requires an insured to give notice within 60 days of an accident as a precondition to coverage. See Manzi v. Cotton States Mut. Ins. Co., 243 Ga. App. 277 (531 SE2d 164) (2000) (physical precedent only). Part E of Section IV of Phillips’ insurance policy with Cotton States entitled “DUTIES AFTER AN ACCIDENT OR LOSS” provides as follows:

We must be notified promptly, but in no event later than 60 days, of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. Receipt of such notice by the company or any of its authorized agents shall be a condition precedent to the existence of any coverage under this policy and of the company’s obligation to defend any claim under this policy.

It is undisputed that Phillips failed to notify Cotton States within 60 days and, in fact, did not do so until nearly two years after the accident occurred. Therefore, a mandatory precondition for coverage was not fulfilled. In Manzi v. Cotton States, this Court found this exact policy language to be enforceable against a policyholder seeking uninsured motorist coverage. Id. at 281. Nevertheless, due to a public policy of ensuring some recovery for injured third parties, the lack of notice exclusion is generally not enforceable against a third party injured by an insured who fails to notify his insurer. Ginn v. State Farm &c. Ins. Co., 196 Ga. App. 640, 642 (396 SE2d 582) (1990). But when the injured third party has access to other insurance funds, the lack of notice exclusion is enforceable. State Farm &c. Ins. Co. v. Drawdy, 217 Ga. App. 236, 238 (2) (456 SE2d 745) (1995).

Cotton States asserts that here, as in Drawdy, other insurance is available to Gainer, the injured third party. See id. at 239 (2). Cotton States contends that it is undisputed that State Farm is defending Singletary and Phillips and providing coverage for Gainer’s claims against them. Cotton States also contends that insurance coverage is available from Georgia Farm Bureau Mutual Insurance Company.

But the only evidence in the record that Gainer has access to other coverage is Cotton States’ liberal construction of Phillips’ testimony. Although Phillips deposed that State Farm was providing him a defense, when asked whether State Farm “has some insurance coverage out there covering this wreck,” Phillips stated, “They belong [sic] to have. I don’t know because all I know is [Singletary] is the one that keeps up with it.” And the only testimony Phillips gave about Georgia Farm Bureau was that it insured Singletary’s farm. We find no specific testimony about actual coverage. Neither State Farm’s nor Georgia Farm Bureau’s policy is in the record. There is no affidavit, pleading or other admissible evidence in the record to show that either insurer will cover any of Gainer’s damages, or cover Phillips for his actions. Finally, unlike in Drawdy, there is no evidence that Gainer has uninsured motorist coverage.

Decided June 21, 2002.

Hall, Bloch, Garland & Meyer, John E. Hall IV, Jay C. Traynham, for appellant.

William V. Evans, for appellees.

Charles J. Phillips, pro se.

Phillip C. Singletary, pro se.

Construing the evidence in favor of the nonmovant, Larson v. Ga. Farm &c. Ins. Co., 238 Ga. App. 674 (520 SE2d 45) (1999), we hold that this evidence is insufficient to establish as a matter of law that Gainer had access to other insurance coverage as contemplated in Drawdy, and thus is insufficient to override the rule established in Ginn v. State Farm &c. Ins. Co. The trial court did not err by denying Cotton States’ motion for summary judgment.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.


author: Ruffin, Judge.

text:
    A02A0559.
    JAMES v. VINEVILLE CHRISTIAN TOWERS, INC.
    (567 SE2d 712)
   Ruffin, Judge.

Sara L. James was injured when she fell on property owned by Vineville Christian Towers, Inc. (‘Vineville”). James sued Vineville, alleging that the defendant’s negligence caused her injuries. The trial court granted summary judgment to Vineville, and James appealed. For reasons that follow, we affirm.

To prevail on its motion for summary judgment, Vineville must show

that there is no evidence sufficient to create a jury issue on at least one essential element of [James’] case. If there is no evidence sufficient to create a genuine issue as to any essential element of [James’] claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

On appeal from a trial court’s grant of summary judgment, we conduct a de novo review of the record and construe the evidence and all reasonable inferences in favor of the nonmoving party.

Viewed in this light, the evidence shows that Vineville owned and operated an apartment complex for elderly persons. On October 11,1999, the date of her fall, James was 80 years old and lived at the complex. For the two years preceding her fall, James took a one-mile walk in the morning and in the afternoon. According to James, “[e]very day [she went] the same way . . . going and coming back.” She would exit the apartment building, walk up the street, turn around, and walk back to the complex.

On the day of her accident, James was returning from her afternoon walk. As she was walking across a grassy area on the apartment complex grounds, she stepped into a hole and fell. The hole was approximately seven to eight inches wide, over one foot long, and came up to James’ knee. According to James, the hole was invisible even after she fell; all she saw “was just the grass there [,] . . . you couldn’t see anything. If the hole were there, you couldn’t see it.” James further stated that, although she had walked over the same grassy area every day for two years, and had traversed it that morning, she did not see the hole and had never previously noticed any soft spots or holes. In fact, James said, “[everybody walked across it.” James did not know how long the hole had existed or how it got there. She stated, however, that the grounds were well maintained, and the grass had “been cut a few days or a week before” her fall.

In contrast to James’ testimony that the hole was virtually invisible, her son, who had observed the hole the following day, after it was filled with gravel, stated that “[a]nyone mowing the grass . . . would have noticed the hole. Any person conducting a reasonable inspection of the area would have noticed the hole.” James’ son acknowledged, however, that he could not say whether the hole was visible on the day his mother fell.

In support of its contention that it had no knowledge of the hole, Vineville presented the affidavit of its director, Faye Fannin. Fannin stated that Vineville routinely inspected the premises, and either a safety/maintenance supervisor or a security guard walked the grounds several times each day. Vineville also contracted with a landscape service that “inspected and maintained the grounds twice per month.” According to Fannin, the grounds were inspected on October 11 before James’ accident, Vineville had not received any prior complaints about holes or depressions in the grassy area, and the landlord had no knowledge of any such hazards.

As landlord, Vineville is required to maintain'its common areas in a reasonably safe condition, and it is liable for damages arising from a breach of this duty. To recover damages for injuries resulting from her fall on Vineville’s property, James “must prove (1) that [Vineville] had actual or constructive knowledge of the hazard; and (2) that [she] lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of [Vineville].” Because it is undisputed that Vineville did not have actual knowledge of the hole, we focus our inquiry on whether there is any evidence that it had constructive knowledge.

James could show that Vineville had constructive knowledge in two ways. First, she could prove that one of Vineville’s employees “was in the immediate area of the hazard and had the means and opportunity to easily see and remove the hazard.” James does not contend that Vineville had such constructive knowledge, but instead relies on the second method which is premised on Vineville’s “duty to inspect the premises to discover possible dangerous conditions . . . and to take reasonable precautions to protect [her] from [foreseeable] dangers.” Under this method, the evidence must show “that the hazardous condition existed on the premises for a sufficient period of time such that [Vineville,] exercising ordinary care to inspect the premises [,] should have discovered and removed the hazard.” According to James, “the record is devoid of evidence of any inspection procedures],] and . . . there is no evidence that any particular inspection procedure was actually carried out.” We disagree.

The evidence shows that Vineville conducted reasonable inspections of the property. Fannin’s affidavit reveals that the grounds were inspected several times each day by either a maintenance supervisor or security personnel. In addition, the landscape service maintained and inspected the grounds semimonthly. James’ own testimony establishes that the landscape service had recently conducted such maintenance and that the grounds were well kept. And Fannin stated that she had personal knowledge that the grounds had been inspected on October 11, 1999, before James fell.

Despite these inspections, the hole remained undiscovered, and there is no evidence that Vineville should have discovered the hazard. By all accounts the hole was invisible. It was obscured by the grass, even after the grass had been freshly cut. While James’ son believed the hole was clearly visible, he reached this conclusion only after the hole was filled with gravel and he knew where to look. As the son acknowledged in his deposition, he did not know whether the hole was visible prior to his mother’s fall, and his conclusion, therefore, is not probative of the issue. Considering Vineville’s inspections and that all the residents, including James, regularly traversed the area, we are mystified that the hole was not found earlier. Nevertheless, the fact remains that Vineville conducted reasonable inspections and “[t]here was no evidence that the grassy area presented any kind of hazard requiring a closer inspection since no one else had tripped or fallen in the area.”

Decided June 21, 2002.

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

Martin, Snow, Grant & Napier, Lisa M. Edwards, Richard A. Epps, Jr., for appellee.

Although Vineville had a duty to reasonably inspect its common areas, it does not follow that the defendant was required to conduct an inspection that disclosed every latent defect on the property. If this were the rule, then proprietors would be absolutely liable for all defective conditions on their property. The law does not impose such absolute liability, and because there is no evidence that Vineville had constructive knowledge of the hole, the trial court properly granted summary judgment.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

        Hansen v. Cooper, 253 Ga. App. 533, 535 (559 SE2d 740) (2002).

       See id. at 533.

        See McCullough v. Briarcliff Summit, L.P. II, 237 Ga. App. 630, 631 (1) (516 SE2d 353) (1999) (physical precedent only); Padilla v. Hinesville Housing Auth., 235 Ga. App. 409, 411 (509 SE2d 698) (1998).

       (Punctuation omitted.) Padilla, supra at 410.

       See Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 592 (466 SE2d 58) (1995).

       Id.

       (Punctuation omitted.) Id. at 593.

       Id.

       Id. at 594.

       See Padilla, supra at 411.

       See id.

       See id. at 411-412 (summary judgment proper where hazard created by metal edging pulling away from stairs was not discovered by reasonable inspections and plaintiff had previously traversed the stairs several times per day without noticing the problem); Armenise, supra (same; hazard created by grass-covered depression was not discovered by reasonable inspection and other invitees had frequently walked over the area without problems); Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 864-865 (449 SE2d 348) (1994) (same; no evidence that leaf-covered hole was discoverable through reasonable inspection). Compare Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991) (summary judgment improper where knee-deep hole was obscured by grass 12 inches high creating a jury issue as to whether owner liable due to size of hole and infrequent maintenance).